The travails of CJN Onnoghen cannot be equated with the case of former Court of Appeal Judge, Ayo Salami - Mike Ozekhome, SAN

Chief Mike Ozekhome (SAN)

Constitutional Lawyer and Human Rights Activist, Chief Mike Ozekhome (SAN) has  said that the travails of the embattled Chief Justice of Nigeria, Walter Onnoghen, cannot be equated with the case of former Court of Appeal Judge, Ayo Salami.

In a statement entitled, ‘The Case of Onnoghen and Emir Sanusi: Never Two of a Kind’, Ozekhome said, “My attention has just been drawn to my statement made in 2014, currently, flying about in the social media.

“It is to the effect that I am now contradicting myself from my earlier stand that the then President, GEJ, could suspend the then Governor of CBN, now Emir Sanusi, by invoking section 11 of the Interpretation Act, on the ground that he who can hire can also fire and also suspend.

“I perfectly stand by that statement. I also hereby affirm my present informed argument and my present stance, as both the Onnoghen and Salami’s cases are not in any way related at all.

“My 2014 argument related to the interpretation of the Constitution and the CBN Act, under which the President can hire and fire as he wishes, subject to Senate’s approval. He could therefore also suspend, going by the Interpretation Act.

‘There is no equivalent section under the CCB/CCT Act, permitting the President to capriciously and whimsically hire and fire the CJN as he wishes, as he could do under the CBN Act.

“Whereas appointment of the CBN Governor under the CBN Act involves only the President and Senate, (President nominates and Senate confirms by 2/3 majority), sections 153, 158, 3rd Schedule (parts 1 & 2), sections 291 and 292 of the Constitution were NOT in issue then. They are now.

“The sections of the CBN Act only, relates to the President’s power to hire, or fire (and suspend under the Interpretation Act), the CBN Governor.

“Oil and water do not mix. So, I stand by that my 2014 argument as regards the then CBN Governor.

“However, under the Constitution, the CJN, like President of the Court of Appeal, High Courts and Federal High Court, Chief Judges, Grand Khadis and President of the Customary Court, enjoy a special space in our constitutional organogram.

“For them to be hired or fired, the entire three arms of government are involved under sections 4, 5 and 6 of the Constitution, in sync with the famous doctrine of separation of powers, ably propounded in 1748 by the great French Philosopher, Baron de Montesquieu.

“Unlike under the CBN Act (under which Sanusi’s case came up), the NJC in the Onnoghen saga must first recommend; the Senate must first approve; before the President can then hire or fire.

“Were the present issues based alone on a mere Act such as the CBN Act, then PMB would have had the power to also suspend. Unlike under the CBN Act, the three arms of government must be involved in the case of the CJN.

“They have not, in this instance, which is the kernel of my present stance. But, even the CCT ex parte order PMB purportedly relied upon, didn’t permit the President to suspend Onnoghen. The order directs Onnoghen to “step aside”.

“Has he stepped aside? No. Has Senate ever met at any time to decide to remove or suspend Onnoghen by 2/3 majority votes? No. Can the President appoint an Acting CJN to a position that is not vacant since the incumbent has not stepped aside? No.

“So, a CCT that had, by itself, adjourned proceedings to 28th January, 2019, for argument on the issue of jurisdiction, suddenly remembered that there existed a motion ex parte somewhere in its files, dusted it up and issued an ex parte order based on it, at a time the issue of jurisdiction was already pending before it, and after it was adjourned for hearing by the very CCT itself.

“The only jurisdiction a court or tribunal whose jurisdiction has been duly challenged possesses is jurisdiction to determine whether or not it has jurisdiction. Nothing more.

“It cannot make more or further orders on the substance of the case as erroneously done by the CCB. The ex parte order therefore cannot stand in law. All these issues never occurred in the Sanusi case at all.

“There were no court proceedings to be interpreted; no court order; no jurisdictional issues raised; and no three arms of government involved. So, the two scenarios are worlds apart.

“Some have also referred to the Justice Ayo Salami Saga. It is again totally different from the Onnoghen matter.

“Salami’s case involved the then President of the Court of Appeals’ elevation to the Supreme Court, which he out rightly rejected, on the ground that it was meant to be a punishment for him for refusing to accede to the then CJN, Katsina-Alu’s request to pervert the cause of Justice with regards to a matter then pending before the Court of Appeal, Sokoto.

“It was a tussle between the then governor, Magatakarda and a former Governor Attahiru Bafarawa.

“The NJC had constituted a panel (unlike in the Onnoghen case), to investigate the allegations against Salami, who later approached the court. Before the court processes were dealt with, the NJC, at the end of its sitting, exonerated Justice Salami of some allegations against him, quashed his elevation to the Supreme, but found that he lied against the then CJN, Katsina –Alu.

“NJC then ordered Justice Salami to apologize to Katsina Alu within a stipulated time. Salami, based on strong principles, refused to do so.

“The NJC, at its 7th Emergency meeting held on 8th August, 2011, immediately proceeded to suspend Salami, pursuant to the provisions of section 21, third schedule, Part 1 of the 1999 Constitution.

“The NJC further recommended to the then President GEJ, Salami’s removal from office which was acted upon.

“It is therefore clear that the Salami scenario is totally different from the present Onnoghen drama, carefully scripted and simulated by the present government to influence the imminent presidential elections which PMB knows must go to the tribunal.

“Don’t forget also that PMB once wept openly in the presence of cameras that he was robbed of his victory up to the Supreme Court. So, he has never hidden his disdain and hatred for the apex court and Onnoghen, whom, according to the reasons he gave for illegally suspending, him has been in charge of freeing alleged corrupt elements.

“Left to PMB, anyone charged before a court must be convicted by the judiciary at all cost, whether there is evidence, proof, or not, to satiate his mind-set belief that he is fighting corruption (check out the list of the first eleven corrupt people in Nigeria currently campaigning for his re-election on the same podium).

“In the Onnoghen case, the NJC has been curiously side-tracked, unlike in the Salami case.

“We cannot and must never allow immediate political exigencies and short-term gains to obfuscate our humanity and decency as a people and as a nation.

“My 2014 stance remains true and valid, based on the peculiar circumstances of that case and the sections of the law dealt with.

“They did not contend with, nor envisage, the near immunity granted to the CJN and other Jurists under the relevant constitutional provisions as above highlighted.

“The two scenarios are like day and night, light and darkness. They never meet.”