Presidential Advisory Committee Against Corruption (PACAC) Chairman Prof Itse Sagay (SAN) on Wednesday explained why Chief Justice Walter Onnoghen’s assets non-declaration charge cannot first be determined by the National Judicial Council (NJC).
In a statement, the eminent professor of law, citing constitutional provisions, argued that not every offence committed by a judicial officer must first be brought before the NJC.
He added: “By the very logic of the powers of the NJC, cases arising out of a breach of the Code of Conduct Bureau and Tribunal Act and the Code of Conduct provision in the Constitution cannot come before the NJC.
“If the NJC first decides the matter before the defendant is arraigned in court or at the Tribunal, what happens if the NJC finds the defendant liable and removes him from office as a Judge? In that case, he ceases to be a Judicial Officer as well as a Public Officer.
“Can he, therefore, be tried as a public officer before the Code of Conduct Tribunal? The answer is no, because he is no longer a public officer.
“The extant provisions of the Constitution and the Code of Conduct Bureau and Tribunal Act would be rendered nugatory by a prior NJC involvement.”
The PACAC chairman faulted arguments that the prosecution ought to comply with the Court of Appeal decision in the case of Nganjiwa vs. F.R.N.
He said: “It should be noted first that this judgment contradicts the clear provisions of the Code of Conduct as established in the Constitution which gives the Code of Conduct Tribunal jurisdiction over all public officers, including the Chief Justice of Nigeria. (See 5th Schedule, Part One, of the 1999 Constitution).
“Moreover, the Court of Appeal in Nganjiwa’s case was directing its judgment to a judicial officer committing an offence in the process of carrying out his duties as a judge in a court namely: demanding bribe from a party to the case before him.
“Therefore, the ratio decidendi in this case is much narrower in scope than is being touted by our all mighty Senior Advocates of Nigeria (SANs). Filling an Assets Declaration Form is totally outside the ambit of a judicial officer’s work. It applies to all public officers.
“If one may ask – should a drunken judge behind a car steering wheel kill an innocent pedestrian, will the offence be taken before the NJC, before the police can act on the crime?
“Indeed, inspite of its defects, the Court of Appeal judgment in the Nganjiwa’s case expressly limited reference to the NJC only to cases of a judicial officers’ misconduct in court whilst exercising his authority as judge in case before him in court.
“According to the court: ‘It must be expressly stated that if a Judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State directly without recourse to the NJC. These classes of criminal act are not envisaged and captured by the provisions of paragraph 21, Part One of the Third Schedule.’
“This demonstrates the hollowness and invalidity of the argument that every offence committed by a judicial officer must first be brought before the NJC, before the law enforcement agencies can entertain it.”
Besides, Sagay believes that the NJC cannot be expected to be fair in Chief Justice Onnoghen’s case.
“Almost all the Senior Advocates of Nigeria have argued that even in a case involving the breach of the Code of Conduct, for which the law has already made express provisions, the matter shall be taken to the NJC rather than to the Code of Conduct Tribunal.
“They can’t be serious. They must obviously be speaking tongue in cheek. Even a baby, three months old, must realise that no one can get justice against the CJN at the NJC.
“The CJN is not only the Chairman of the NJC, he is also the appointor of 20 out of the NJC’s 23 members. The CJN is the NJC.
“Only a grossly ignorant man or an extremely mischievous one could seriously suggest that a matter involving the CJN should be brought before the NJC for adjudication.
“Therefore, the whole idea of taking the present case to the NJC is a nonstarter, for that would make the CJN the Chief Judge of his own case – a clear violation, not only of the Constitution, but also of a long standing common law principle coming all the way from MAGNA CARTER in the year 1215,” the PACAC chairman said.
Sagay was of the view that the substance of the charge against Chief Justice Onnoghen “is deliberately being abandoned by the SANs and some other lawyers.”
“Why is Nigeria such a Theatre of the Absurd? Today, we are only talking about preliminary objections, interim injunctions, challenge of jurisdiction, wrong procedure, etc., etc.
“Nobody is talking about the substantive issue any longer. That is now lost in the sands of time.
“Did he do it? Did he not do it? The questions we should all be asking are contained in the front page of The Nation Newspaper of Tuesday 15th January, 2019: Did the CJN fail to submit a written declaration of all his assets and liabilities within prescribed period of three months after being sworn it?
“Did he omit to declare a domiciliary (US dollar) account No. 870001062650 maintained with Standard Chartered Bank Nigeria Limited? Did he falsely omit to declare a domiciliary (Euro) account No. 93001062686 maintained with the bank?
“Did he falsely omit to declare a domiciliary (Pound Sterling) account No. 285001062679 with the Bank?
“Did he falsely omit to declare an e-Saver Savings (naira) account No. 5001062963 maintained with the bank? Did he falsely fail to declare naira Account 010001062667?”
Sagay advised Nigerians not be distracted by what he called a vicious and fraudulent campaign intended to sacrifice the substance and justice of the case on the altar of technicalities, adding that the truth must not be the first casualty in the matter