In All Honesty, NJC Has No Reason To Punish Hon. Justice Tanko Muhammed Of The Supreme Court – Dr. West-Idahosa

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As the Nation awaits the verdict of the National Judicial Council on petitions against CJN Onnoghen and Hon. Justice Tanko Muhammed ( Ag. CJN), the question that is ripe for answer is what the offense of Hon. Tanko Muhammed really is. I have no doubt in mind that the method adopted by President Buhari in suspending the CJN on the pretext of acting on an order of the Code of Conduct Tribunal ( CCT) remains uknown to law and very unacceptable. It does not matter the gravity of the allegations against the CJN, what the president should have done was to get the Attorney General of the Federation (AGF) to send a petition to NJC and upon receipt of such petition, it would consider same and make appropriate recommendations to the President. This was not done in Onnoghen’s case and to that extent the President’s action was rightly condemned by many as a threat to democracy, being an exercise in breach of the Constitution.

It must be pointed out that the President only directed the AGF to send a petition to NJC against the CJN after illegally suspending him. That was akin to putting the cart before the horse.

New Acting CJN Tanko Mohammed
New Acting CJN Tanko Mohammed

It is important to note that NJC may yet recommend any of the following;

  • the suspension of CJN from office and refer him for trial at CCT and any other competent court for other valid charges against him.
  • the compulsory retirement of the
    CJN on grounds of national interest and sanctity of the judiciary.
  • absolve the CJN from doing any wrong and recommend his immediate resumption of office.

These are existing probabilities. In my view, the third probability is less believable. The matter does not stop there. With respect to the removal of CJN from office, the only easy option is if he elects to retire from service. Where he elects not do do so, his removal will be guided by section 292(1)i of the Constitution. For instance, where NJC recommends his compulsory retirement and the CJN decides not to comply, NJC can elect to suspend him but cannot remove him from office. In that case, the President would have to send an address for his removal supported by two- thirds majority of the Senate to validly remove him from office. Where NJC suspends him and recommends him for trial, he still can’t be removed substantively from office until he is convicted by a court of competent jurisdiction and the President relying on that conviction sends an address to the Senate supported by two-thirds of senators for the removal of the CJN.

Let me point out that a person such as Justice Tanko Mohammed appointed by the president to act as CJN pursuant to section 231(4) of the constitution can only do do for three months, except NJC recommends to the President otherwise. It can be conveniently argued that the President got it wrong with Onnoghen.

What then is the offense of Justice Tanko Muhammed ? From what we have gathered, he is accused of presenting himself for swearing-in as Ag. CJN without the recommendation of NJC and when the substantive CJN had not been removed from office legally. It is further canvassed that the custom of NJC is to punish any judicial officer who presents himself for swearing- in place of a judicial officer unlawfully removed outside the recommendation of NJC. The petitioners have made heavy weather of the fact that Justice Tanko Muhammed participated in proceedings of NJC when it disciplined such erring judicial officers and he is therefore caught by his own conduct in similar circumstances.

With respect to those who petitioned him, I think Hon. Justice Muhammed’s case is different. First, he didn’t voluntarily present himself for swearing in as Ag. CJN. From the records available, he was directed by an order of CCT to do so. The CCT is a creation of the Constitution pursuant to the Fifth Schedule. It has jurisdiction over public officers including Justices of the Supreme Court. On the day that Justice Muhammed was sworn in as Ag. CJN, President Buhari said the following;

“A short while ago, I was served with an Order of the Code of Conduct Tribunal issued on Wednesday 23 rd January 2019, directing the suspension of the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Samuel Onnoghen from office pending final determination of the cases against him at the Code of Conduct Tribunal and several other fora relating to his alleged breach of the Code of Conduct for Public Officers.”

The relevant order of CCT reads as follows;

“That the President of the Federal Republic of Nigeria shall take all necessary measure to swear in the most senior Justice of the Supreme Court of Nigeria as Acting Chief Justice of Nigeria and Chairman National Judicial Council in order to prevent a vacuum in the judicial arm of government pending the determination of the motion on notice.”

Against the background of these developments, what were the options left to Hon. Justice Tanko Muhammed ? Was the Court order not made ? Is he not the most senior Justice of the Supreme Court? Was there a contrary order from a superior court setting aside the said Tribunal order at the time Justice Muhammad was sworn-in ?

These are important questions in determining the culpability of Justice Muhammed in his swearing-in saga. Surely, it would be infra dig the office of a Supreme Court judge to willfully disobey a valid order of a lawful Tribunal. In addition, he would be in contempt of an existing order of a lawful Tribunal for which he can be punished, if CCT so decides. He would also be undermining the rule of law and thereby threatening Nigeria’s democracy and well being by disobeying such an order.

Would it therefore be right to punish a man for obeying the order of a lawful Tribunal? I think not. It is immaterial whether or not CCT made the correct order or had jurisdiction to make same. Where this is the case, the solution is to challenge the order on appeal and not to resort to self help by willful disobedience of an order made by a Tribunal set up by the Constitution of Nigeria.

I find no difficulty at all in reaching the conclusion that NJC ought not to punish and should NOT punish Hon. Justice Tanko Muhammed for obeying a lawful order made by a competent Tribunal.

My humble view.

Dr. West-Idahosa.

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