How CJN can avoid arraignment, by lawyers…

Despite strenuous arguments against the competence and timing of the charge pending against the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, only few options exist for the CJN to avoid his arraignment scheduled for today before the Code of Conduct Tribunal (CCT), law experts have said.

The arraignment could only be put aside either by the intervention of the Presidency, through the Attorney-General of the Federation (AGF) or the Chairman of the CCT, who could decide to adjourn the tribunal’s proceedings to a later date, The Nation has learnt.

The CJN, the experts noted, could also decline to attend the proceedings on which basis, the tribunal could, upon an application by the prosecution, issue an arrest warrant.

These options, some Senior Advocates of Nigeria (SANs), who prayed for anonymity, argued only exist, despite the Appeal Court’s judgment in Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391(CA), in view of the provisions of sections of the Administration of Criminal Justice Act (ACJA) 2015 and the public interest the case has attracted since information went public at the weekend about the CJN’s scheduled arraignment before the CCT today.

They referred to the provisions of sections 107 and 396(2) of the ACJA.

The Supreme Court has since 2016, in its decision in an appeal by the Senate President, Bukola Saraki, held among others that the ACJA is applicable to the proceedings of the CCT.

The Court of Appeal, in its December 11, 2017 judgment in the appeal by Justice Hydiazira A. Nganjiwa, held that sections 153(1) (i) (2), 271 (1), 292(1) (a) (ii) and Paragraph 21 of Part 1 of the Third Schedule to the 1999 Constitution, must be read together to mean that any judicial officer accused of an offence must first be subjected to an investigation and a disciplinary action by the National Judicial Council (NJC) before such a judicial officer can be arraigned in court.

Section 107(1) of the ACJA states: “In any criminal proceeding for an offence created by an Act of the National Assembly, and at any stage of the proceeding before judgment, the Attorney-General of the Federation may discontinue the proceedings either by stating in court or informing the court in writing that the Attorney-General of the Federation intends that the proceeding shall not continue, and based on the notice, the suspect shall immediately be discharged in respect of the charge or information for which the discontinuance is entered .”

Section 395(1) & (2) provides that: “The defendant to be tried on an information or charge shall be arraigned in accordance with the provisions of this Act relating to the taking of pleas and the procedure on it.

“After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgement, provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgement.”

Justice Onnoghen, in the lead judgment in the appeal by Saraki, a seven-man panel of the Supreme Court, led by then Justice Mahmoud Mohammed, held among others that the Administration of Criminal Justice Act 2015(ACIA) was applicable to proceedings at the CCT.

But lawyers query the timing, competence of the charge against the CJN

President of the Nigerian Bar Association (NBA) Paul Usoro (SAN), Sebastine Hon (SAN), Mike Ozekhome (SAN), Jiti Ogunye and Ebun-Olu Adegboruwa, argued against the planned arraignment of the CJN.

Usoro, Ozekhome and Adegboruwa querried the competence of the charge. Hon and Ogunye disagreed with the timing in view of the approaching general elections.

Usoro, who is facing a money laundering charge filed by the Economic and Financial Crimes Commission (EFCC), alleged that the charge against the CJN was part of efforts by agencies of the Executive arm to intimidate and subjugate the other arms of government.

Usoro, who was part of Saraki’s legal team during the Senate President’s trial before the CCT, argued that the decision to file a charge against the CJN was a repeat of what was allegedly done by the Executive to suppress the Legislative arm.

The NBA President added: “We still wonder why the FGN choose to deviate from the laid down and explicit provisions of the law as expounded in Nganjiwa v FRN (supra). Could it be that it was misadvised? Or is this a naked show of power and force by agencies of the FGN?

“It is also difficult for a disinterested observer not to see a pattern of consistent assault by agencies of the FGN on the heads of the two independent arms of government, to wit, the legislature and the judiciary, starting with the prosecution of Dr. Saraki, before the CCT and now, the ill-fated prosecution of the CJN before the same CCT.

“The impression must not be created that the agencies of the Executive arm of the FGN are interested in destabilising and laying prostrate the other arms of the government and in the process eliminating and destroying any and all voices of dissent and checks and balances.

“That is not desirable for the democracy that we strive to build neither is it good for the image of the Government. We urge restraint on the part of Government and demand that the CCB follow due process in proceeding against the CJN by complying with Nganjiwa’s Judgment (supra) and other similar judicial precedents.

“This continuing attack on the justice sector must cease forthwith. FGN and its agencies must desist from debasing the rule of law,” Usoro said.

Ozekhome argued that the President Buhari administration had been intolerant of dissenting voices.

He noted: “From the crude break–in and invasion of judges’ houses in October 2018 by masked DSS operatives to the horrific siege laid on the National Assembly and the residences of Senate President Dr Bukola Saraki and his Deputy, Dr Ike Ekweremadu, it is clear that this government, which protects its own members, however corrupt and despicable, has blown into full maximum dictatorship, totalitarianism and absolutism. Nigerians must say no to fascism.

“The latest onslaught is against the Chief Justice of Nigeria, Justice Walter Nkanu Onnoghen, a man of great nobility, erudition and lucidity of thought.

“It has come to light that the government has hurriedly filed charges against Onnoghen, even with a motion (most curiously and unusually), that he should recuse himself from his Chief Justice-ship until the case filed against him is finally determined by the Code of Conduct Tribunal (CCT).

“This is to force him out of office. First, it was a selected class of Judges, then SANs, then NASS, then Media, then NBA President, and now the entire Judiciary. Impunity now reigns supreme, strutting about proudly like a peacock,” Ozekhome said.

Hon argued: “Nothing stops the Federal Government from deferring, in the interest of national peace and cohesion, the filing of those charges till an opportune time – since there is no limitation of time in criminal proceedings. Why now?

“The Federal prosecutors are also aware of extant decisions of the Court of Appeal, to the effect that unless and until the NJC pronounces a judicial officer guilty, he cannot be arraigned in court.

“Those authorities know full well that these decisions of the Court of Appeal have not been overruled; but they have decided to humiliate the CJN, by rushing some charges to the Tribunal and leaking same to the press over the weekend.

“I strongly counsel the CJN not to heed the obviously unholy call that he should step aside. There is light, I am strongly persuaded, at the end of the tunnel!”

Ogunye, who also queried the competence of the charge in view of the decision in the Nganjiwa case, added: “We support the fight against corruption in the public sector and in the Judiciary in particular. But this fight must be done in scrupulous conformity with the rule of law.

“In the light of the foregoing, we call on the President of Nigeria to direct that the charges filed against the CJN be withdrawn forthwith for its incompetence, even as the administration continues to explore other legitimate and constitutional means to continue its fight against corrupt practices in our public life.

“The allegations against the CJN may be grave, but justice cannot be served by resorting to patent illegalities.”

Adegboruwa argued that the CJN cannot, by virtue of these illegal charges alone, be asked to vacate his office.

He noted that the Senate President and his Deputy both faced their criminal trials recently and they both participated in and presided over the affairs of the Senate.

Adegboruwa added: “Whereas no citizen is above the law to be arraigned or charged for any criminal offence, however, the CJN must be accorded his full constitutional rights as guaranteed by the Constitution.

“In the course of this present administration, judicial officers have been on trial, legislative officers have been on trial, lawyers and many others have been on trial, for one alleged offence or the other, but no member of the Executive arm has been so tried, notwithstanding the myriad of complaints and allegations against them.

“I therefore appeal for transparency and uniform application of standards, in the prosecution drive of the administration.

“As we approach the 2019 general elections, I appeal for calm from all and I urge the Executive arm of government to demonstrate unlimited respect for the due process of law always, in order not to heat up the polity unduly, given the current state of affairs of our dear country,” Adegboruwa said.

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