THREE WAYS TO LOOK AT THE CJN ONNOGHEN CRISIS – BY SAM ELEANYA
Walter-Onnoghen
First, there is the Buhari supporters microscope aided ways. Goaded along by metastasizing conceit, they focus selectively and magnify what they choose to magnify while ignoring everything else they deem inconvenient at the moment and so not to be countenance. Then there is the Anti-Buhari supporter’s telescope aided way. These ones atikulate, sorry, articulate as NORMAL for the human mind the massive outrage that the present Chief Justice’s conduct constitutes. Lastly, there is the clear-eye way of ordinary Nigerians still hoping naively that this nation can work.
This is then the third way very few of the two dueling clubs are paying attention to: a key part of this crisis is that the constitutional provision establishing the NJC was a poorly thought out contraption forced into the 1979 Constitution when it was de-suspended in 1999. The NJC was not always part of our constitutional framework: 1914 till 1999. Up until then, the majority of Nigerian Judges had always been deemed and shown demonstrably to be strong and thus requiring no protection from the society it served. Contrary to that, the NJC provision beatified the Nigerian judge as weak and set on the well-intentioned task of protecting them from ‘projected’ attacks.
The whole point of the NJC constitutional innovation under Chapter Seven and Schedule III (paragraph J) was, thus, a bewitchment against the mind of the Nigerian judge-clan: an institutional framework to condition them to the privileges of self-portraying themselves as weaklings unable to survive politically charged scrutiny during their appointment process. Overtime, ‘poor’ would also be added to that character deficiency, making the mind-rotting dependency beverage strong and addictive enough for the majority of Nigerian judges, if not factually, at least, notionally.
The ’emergency’ for inserting the NJC provision across the interstices of Chapter Seven, as its proponents put it in 1999 – was that we need to secure the independence of the Judiciary filled with such weak (and poor judgelings). In other words, a judiciary that had survived the jackboot politics of Military dictators without the NJC was to be given the NJC to protect its spawns from the partisan politics of bloody civilians. To achieve that, the architects designed an NJC with a slew of constitutional powers (chief of which was to give appointment advice to the two elected members of the Executive arm, at federal and state levels) – but they were powers without meaningful restraints or limits. Indeed, NJC may be the only authority or functionary under the Constitution with unlimited powers nebulously whitewashed as ‘advisory’.
Emphasis, the NJC provision is one constitutional scheme, that if it were possible to find a judge creative enough to listen, should be tested for its ‘constitutionality’. For in the rush to nail in the NJC scheme among the peremptory rungs of Nigeria’s constitutional norms where it did not belong, too many things were not considered.
Chief among them was a proper articulation of ‘judicial independence’: what it ought to mean in a constitutional democracy driven by elected representatives of the communities judges exist to serve. Does it mean giving the judiciary an extra-terrestrial placement where elections would not have consequences for its ‘constitution’, or succession? Does it mean a judiciary condemned to drink, succession and regeneration-wise from the stale and retiring vision of the Chief Justice and Chief Judges? Those questions are super-pertinent because in other similar constitutional democracies, the judiciary is one key area where general elections consequences are most obvious. Appointing a Supreme Court Justice should be a big deal – and the Chief Justice, more so. In Nigeria, it is almost as if it has become a factory-line where serving judges get shuffled along to the very top once they refuse to die before their time comes. It is an aberration that makes ‘life-declaring’ marabouts and pastors more important than wisdom and character to ambitious judges.
Functionally, under the emergent 1999 Constitution, the CJN is the convening dictator of the NJC, literally. Secondly, there were no protocols that mandated the CJN to step aside once allegation rising to the level of arraignment was made against him as applies to every other judge. Worse, as it is in this case, where there has been an appeal up to the level of the Court of Appeal with the next bus stop being the Supreme Court where the CJN retains, exclusively, the impaneling powers, there is nothing mandating him to step aside – a requirement that goes to the roots of fair hearing and the pillars of natural justice.
Additionally, there was also no provision allowing for a transparent protocol in the exercise of the advising function of the NJC – protocols that obligated it to give the President as many Judges as possible for any single vacancy to make his final appointment meaningful. As a corollary, there was no provision mandating the NJC to accept in good grace any rejection of its ‘advices’ and to work to give an even better one with dispatch. For without the right to give and reject an advice, an advice would no longer be an advice. Denied the incentive to stay on top of its game as an advisor, the advisor is wont to become complacent, replacing winsomeness over time with self-aggrandizement. It reduces the process to a dictatorship of the advisor creating the perfect atmosphere for unending feuds by a belligerent advisee.
And so, without those and other safeguards, the emergent 1999 Constitution created through the NJC a powerful dictatorship of the CJN [and of the judges and lawyers he favours (especially the SAN rank)]
That is what is at the root of this crisis. The Judges and Lawyers are playing high wire politics just like the president. Their cold war over the past three years has boiled over into a cauldron Both are fighting over powers that belong with the President which the NJC, within the nebulous framework of its interventionist powers under the Constitution, has hijacked without an express stipulation of the Constitution.
It is a battle the Judges would lose terribly: because they can not play politics frontally and earthily as politicians do. Their best lay in finding a way to keep that battle where it was: in the back streets and alleys.
However for Nigeria, the right thing to do is a review of the NJC provision in the 1999 Constitution. Relevant questions such a review should ask include: has the NJC’s establishment led to a better judiciary in the last twenty years?; if not, is its continuing existence justifiable?; If justifiable, should it continue to exist in a way that ensures that general elections in Nigeria have zero consequence for the judicial policy and succession dynamics of the judiciary?; what is the proper conception of ‘independence’ that the Nigerian judiciary should embrace?; does independence of the judiciary mean lack of accountability to Nigeria’s people through their elected representatives in relation to the funding and succession dynamics of the judiciary?; and have that conception worked well in the past twenty years of implementing it?
Truth is: NJC was a power grab by the Chief Justice and Senior lawyers in 1999 at the expense of the President of the Federation. It is a power grab at the expense of: any President; but an even greater one against a President set on reforming the Judiciary – either for altruistic or mischievous purposes. Power grabs have consequences and they lead to massive distortions. And so this is the problem we need to resolve: should it be the electorates restraining policy reforms of arms of government through elections or do we leave policy leadership of the judiciary totally in the hands of un-elected judges aided by their favourite senior lawyers?.
