CJN: Why Tanko must go, by Olisa Agbakoba

Dr. Olisa Agbakoba, a Senior Advocate of Nigeria, SAN, and human rights activist, is a maritime lawyer and former president of the Nigerian Bar Association (NBA), 2006 to 2008. He is a founding partner of Olisa Agbakoba and Associates, a leading maritime specialist law firm in Lagos and is also founder of Nigeria’s foremost human rights organization, the Civil Liberties Organisation (CLO) as well as founder of United Action for Democracy, and the Zambian pan-African human rights organization, AfroNet. Agbakoba became popular through his work in human rights and democracy movement in Nigeria and it is no surprise he was arrested several times because of his pro-democratic activities. He was also a defender for the Civil Rights activist, Ken Saro-Wiwa, who was brutally executed by the government of Military dictator, the late Gen. Sani Abacha.

In this interview with The Nigerian Xpress duo of STEVE NWOSU and ROSE MOSES, he talks on the crises in the judiciary and concludes that the issue playing out right now regarding the unprecedented suspension of the Chief Justice of Nigeria, Mr. Walter Onnoghen, is not about the CJN as a person, but as a result of a malaise afflicting a colossal federal government that is inept and corrupt.

 

The judiciary appears to be in a flurry. Code of Conduct Tribunal, CJN Onnoghen, acting CJN Tanko and all… What is your take on all these?

Around this issue of public officers on corruption comes the Onnoghen story and naturally there will be public concern on how can the office of the Chief Justice of Nigeria be enmeshed in false declaration of assets?

That’s the background. And that’s very understandable.

But we, as lawyers, have a slightly different concept about how to deal with corruption because if you don’t deal with corruption in a process-driven manner, then it ends up being selective or ineffective.

I’ve always felt that the anti-corruption strategy of President Buhari is useless, it doesn’t exist. So you, for instance, find the former SGF who has been removed from office for the last 18 months, only recently being dragged to court. And the former NIA chief, Oke, okay, only recently. And the Chief Justice of Nigeria is said to have de-stated his assets declaration. But what about the other ministers whose names have come up? So, what’s the haste?

And I highlight this, not to say we shouldn’t fight corruption, but to show that there must be a strategy for it to be successful. I don’t want, if you are the president of Nigeria, and you are Steve Nwosu and I am your Attorney General and I steal and they say ah! Then they call you to your home state and say, but you know we are both Igbo men o!

Corruption cannot go that way. There must be a strategy. And I don’t know why for the life of me, nobody seems to understand that strategy is what will take Nigeria forward. And that’s why in a way, I like what Kingsley Moghalu is doing because he appears to have development strategies. Without that, we’re wasting time, we’re going nowhere.

So, we don’t have a development strategy to deal with the issues of corruption. And so when it pops up, we don’t know how to respond. People are not clear… should we follow process or should we hang in? So what people are saying is: ‘It doesn’t matter, the man has confessed, hang him!’

And I say no, because even if a policeman were to catch me shooting somebody dead, the response is not to shoot me dead, the response is to take me through the process – to arrest me, take me to the police station, to charge me, to bring me before a court of law, to presume I’m innocent until found guilty. That’s the process.

But there this moral issue that for the process to run, in this instance, the CJN has to be taken out or resign because he is key to process, as he can’t be a….

That’s not part of the process. No, unfortunately, that’s not part of the process. Who says that taking him aside is part of the process? It’s not. Part of the process is to now arraign him before the proper institution that has jurisdiction conferred by the Constitution. And that is the NJC (the National Judicial Council).

Which he chairs…

Then the other process….But you see, the problem, you are jumping the gun because you’ve not even gone there! It’s like say, oh, because a DPO has killed somebody, that they won’t take him to the police. Go there first, now. So, let us first start by saying, if you do wrong, the step-by-step procedure to deal with the wrong must be followed.

So, the first thing to do, unless you now break the presumption of innocence, is not to assume that he is guilty, it’s to say to the right organ, this man has done ABC. They didn’t do that, rather they rushed to the Code of Conduct Tribunal.

Now, with the Code of Conduct Tribunal where the chairman also has a corruption case with EFCC, so what do you think is responsible for this seeming haste to get the CJN out of the way and get somebody else to be there?

It’s difficult to say, it’s honestly difficult to say, but the point would be that, had there been an established process, then there will be no haste. There might be haste but nobody would attribute the haste to a motive. Now, what people are saying is that the president is not comfortable with this CJN.

And since elections are very close, too close to call, the battle grounds are North central, South-south and South-east for PDP; South-west – touch and go, nobody is sure; North-west, fanatical support for the president will not be the same because there is Kwankwaso, there is Tambuwal, so he may win but not with the kind of margins; the North-central because of the herdsmen killings, it’s going to go to the PDP. So, some guys in APC are saying, ah, we might lose o! Therefore the Plan B is to control the tribunal.

Whether that is true, I don’t know. But if Plan B is to go to the tribunal on a petition, then it is absolutely important that we have control of the judiciary. So who is the guy there? Onnoghen. No, no, we don’t like him, we are taking him out. That’s the informed gossip (general laughter). I have no clue whether that is true, I don’t know.

Now in forming that gossip, the acting CJN was sworn in on Friday, on Saturday, he swears in the tribunal members. Is it like he continued what the other man was doing or that all that was put together in less than 24 hours?

No, it was Onnoghen who had put it together, which is also a bit alarming because tribunals are not sworn in before elections. Tribunals are sworn in after elections because you cannot predict where you will have petitions. So, I was a bit shocked to see that Onnoghen had in fact set up a panel of 50-man election tribunal process. Because you don’t know whether Abia State will have a petition, so the usual way is after the elections and petitions are filed, then the president of the Court of Appeal, not the CJN, would inaugurate the panel.

Maybe that’s what frightened them because I’m not speaking for Onnoghen. I don’t care if he goes to jail or not. I’m not interested in Onnoghen as a person. But I’m interested in the notion of absolute power and limited power. The president exercises limited power within the executive, the judiciary, within their own. But what the president has done in this case is to exercise wanton absolute power.

And if you look at what happened to President Trump (of the USA), you can see where strong institutions work. So there is the media, there is civil society, there is the judicial system, there is the congress. They stopped President Trump with all his madness. They stopped him. Otherwise, he would have built a wall. He would have unilaterarily assigned $5bn to build the wall. But they told him, ‘Mr. President, your powers are limited under the constitution.

So, the important constitutional principle we are dealing with is the notion of limited power. Otherwise, we are back in a dictatorial government, not a democracy.

Your petition concerning the acting CJN looks at the fact that he presented himself to be sworn in contrary to the tradition of having his name forwarded by the NJC…

Yes. Simply, it’s what the constitution says, we all know…I was a member of the NJC when the Abia governor abused his authority, usurped the powers of the judiciary, removed the Chief Judge (CJ) of Abia and appointed an acting CJ. So, we told that acting CJ that you can’t go before the governor because that’s not the procedure. We are the ones who make the recommendation. And having flouted our constitutional authority, we will remove you.

And so, a panel was set up. Whenever there is misbehavior on the part of judges, the NJC will set up what they call a disciplinary panel headed by a judicial officer. Incidentally, the current so-called acting CJN was a member of that panel and the decision was dismissing that acting CJ. Offence? Appearing before the governor, who didn’t have power to make you the acting CJ!

So here, you appeared before the president, who doesn’t have power to make you acting CJN. So, you must vacate office.

Now, where does this leave us because the NBA said it wanted to call a two-day warning strike and so many chapters didn’t comply. So, is the NBA losing grip?

No, it’s not losing grip. But I think that the NBA should have planned a little better. I think having an emergency on Monday and not sensitizing and mobilizing the national structure and then calling a strike on Tuesday was a bit too early. But apart from that, part of what I told the president of the NBA was that symbolic actions don’t mean anything. If I was president, what I would have done, I would have gone against Abubakar Malami in two ways, because Malami is the attorney general and offers advice to the president.

By virtue of being a lawyer, he is subject to the discipline of the legal practitioners’ disciplinary committee. I will petition for his removal, striking out his name from the bar, at least. He is also a Senior Advocate of Nigeria (SAN). He is amenable to the jurisdiction of the legal practitioners’ privileges committee. And I will be saying that his misconduct in advising that the CJN be arraigned means that he should be deprived of the rank of silk. So when you begin to do specific things that affect specific people, they will think twice.

So, is it late to do that?

No, it is not late. In fact, I am going to do that. But I’ve already done the one for the chairman of Code of Conduct Tribunal and petitioned the NBA that what he did in assuming jurisdiction, when only three months ago, he said he had none, in the case of Sylvester Ngwuta…So, what’s different? I would have thought that Danladi Umar would have looked at it and say: ‘You don’t have jurisdiction, prosecutor, you are in the wrong court, strike it out!’ That’s what he should have done. He didn’t do that. That I think is misconduct. Let’s see what comes out of my petition.

But it is unless you begin to make people take personal responsibility that they will begin to feel the heat. So the next attorney general will come, he will be careful. When the president gives him instructions, he knows that he can be disbarred.

But if you do a symbolic strike, you are not hitting at the person who’s done the wrong thing. So, I would have done the strike, but plan it better but along with specific action against the attorney general of the federation and the Code of Conduct Tribunal chair.

What about the judges because some lawyers were saying they couldn’t have complied with the boycott when the judges were sitting and their cases were to be heard?

That’s part of the mobilisation. When I was president of NBA, when I mobilized on a strike, it was total. But first of all, what we did was sensitize the bar properly and we also got the heads of courts to know that we can’t come to court that day. So, that was how it worked, it was total compliance, 100 per cent compliance. And there were many other full compliance strikes – Aka-Bashorun and others. Many, many. Here, I think it was a bit too hasty, that’s why it didn’t go down as fully as it should.

And I think also lawyers are divided. The older lawyers see due process as the issue, the younger lawyers, like my daughter, see morality as the issue. So the younger lawyers take the view that: No, no, no! The man has done something wrong and should step aside, just like what you said.

And I was telling my daughter, no, there are larger issues. I think she saw the point that to allow what President Buhari did to stand is to make him an absolute dictator. And once he looks around and sees that no one is complaining beyond a couple of lawyers, once he sees that, on February 16 he will say no election. And we will just go to court and complain, shout and that’s it!

You know, when absolute dictatorship comes, it comes so slowly, you won’t know. I’ve been in this for 40 years, now! It comes so slowly and you will not realize that you are abdicating your authority slowly. And the person to whom you are abdicating is coming stronger and stronger.

So, if you look at how President Buhari has abused power, small, small. He does this, no reaction. He does another one. But because of the reaction, even though people say that the NBA thing was not successful, but at least they have charged the former SGF to court and they’ve charged Oke to court. But the last two years they didn’t. So they are responding.

So we must keep speaking. We use every tool available – symbolic tools, specific tools to make sure the government is kept within the limits of their power.

My fear about this thing which you hinted on earlier – the younger lawyers, the older lawyers – is that maybe politics has crept into this and there are so many big SANs you will talk to and it is like because of what side of the political divide they are on, we are not fighting this war like our lives depend on it, not all lawyers are seeing things legally anymore…

Yes. The question you are raising raises the question of nationhood because there is no Nigeria. That’s the problem. Without you knowing, you are raising a very fundamental question that how come northern SANs are on one side and Southern SANs are on another side. Why? Because it’s been broken, it’s being read through political prism, that’s the problem. We’ve never had a president in Nigeria from Buhari to Jonathan to Obasanjo since 1999 that had a paradigm for development so that everyone understands his role in the system.

You can’t have a situation where Lagos State makes N78 billion on VAT and it’s shared around Nigeria and it goes to people who say they don’t smoke cigarette or drink alcohol. That’s the problem. So there is no nation, don’t deceive yourself. There’s no Nigeria. We are just cobbled together in a geographical expression. So any small thing, our ethnic identities emerge. They emerge very fast. So we read everything, ethnically or religiously.

Now, what hasn’t happened and what I hope that can happen if we go to February 16 is a president who understands the need to reconstruct Nigeria. Free up this hierarchical pyramid in Abuja, devolve power to the various federating units. In fact, it is now I understand more, Ojukwu’s wisdom on this ‘Aburi We Stand.’ Now, I understand it. I reread it.

That is the restructure. Ok, why will the Federal Government deal with things with refuse collection policy, education, agriculture, marriage certificate, birth certificate, driving licence? Why? Why will the Federal Government put and Institute of Nomadic Education in Benin? Because everything must spread! That’s the problem. Let’s express our ethnic identities in Nigeria.

In the UK, an Igbo son in Scotland, a Scottish lawyer, his ambition is to be a QC in Scotland, not in the United Kingdom. So I as an Igbo man will express my professional skills in Enugu. Those of us who want to come to the centre, we are free to. But most of us, that’s the space. So in Scotland, the space is in Scotland, it’s in Wales, it’s in Ireland, it’s in England. And it is because the English have tried to suppress others that you had the IRA crises until Tony Blair ended it in the Good Friday agreement.

So, that’s what we need. We need the Good Friday Agreement to free Nigeria from the colossal Federal Government that is inept and corrupt. And it doesn’t matter whether it is Igbo, Yoruba, Hausa, it’s the same thing because in Abuja, language changes. Language is about…Naira is what speaks. Once you are speaking and you have the Naira, there are no tribal differences there.

So, your question about why are lawyers taking different positions is buried in the failure of Nigeria. That’s it. So, how can we push it through with this language…

That is why I cannot vote for Buhari because he has said he is not going to tinker with the Nigerian identity. And I can’t. I will go for the person who is potentially going to look at it and say, ‘Yes, I understand the problem. We need to rearrange Nigeria. We can’t have the 1914 agreement, where the British and Northern Nigeria had a deal to make Nigeria what they wanted it to be. We’ve got to change all that!’

How do we change that with the arrangement on ground?

Well, they’ve got to vote for the man who will change it. That’s what it is. You’ve got go to the polls and cast your vote for the person who is prepared to make Nigeria a great nation.

And are you not scared that even if all of us do that voting the votes might not count?

Well, let’s do the voting first. See, don’t put hurdles…let’s first vote. If we all sit in our houses and say, eh, if we vote it will not count, then we won’t vote… Let us vote first and if it doesn’t count, let us make trouble. But if you don’t vote and Mr. Buhari wins, then you have nothing to say because you’ve allowed him to win by default. So, there’re lots of sentiments running for and against Buhari. But I hope that people will see that in the four years he’s been there, he’s a colossal disaster. Because nothing is in his head.

I watched him in the debate and it’s a shock anybody will say I want to vote for this man, because he’s incompetent! Absolutely inept!!

But that’s the problem. Some people really act as if they are not seeing all these, giving bite actually to this tribalism of a thing…

That’s what I am saying. The issue is that people must come and vote to ensure that Mr. Buhari, who is not competent and mentally-challenged, should go away, because I watched him on Kadaria Ahmed. He couldn’t answer the questions. He just couldn’t. He couldn’t answer the questions they were asking him. In fact, he was lost.

But if you go to the social media, the propaganda is so rife that they are now saying it’s Atiku and Obi that are inept…

I saw them on the debate, I think they did better. As for the falsehood, well, that is why we have to keep at it, it’s the only way. There’s no giving up. Yes, it is always difficult to change a situation. But all I’m doing as observer participant of the Nigerian process is to say that we have a system that has completely failed.

Don’t forget we came out of this judicial discussion and I’ve expanded it to show ….its ramifications are not so much because Onnoghen’s hands were caught in the kitty. What about all the ministers whose names are before the Code of Conduct Bureau? I don’t say this to, therefore, exonerate Onnoghen.

But I say this to say that if there was a clear process, that here is how we deal with corruption and Nigerians can see it, and nobody is spared, nobody will be talking about Onnoghen today. But if it is the case that if it is former PDP stalwart (Godswill) Akpabio, who is being chased for corruption, then he goes into APC and it stops, or Orji Kalu or so many of them, then people will, therefore, say, no, no, something is wrong. That’s the problem.

Do you at some time get scared of where we are heading to, and what do you think can be the worst outcome of the scenario?

Nigeria can descend down the cliff. It’s touch-and-go. Anybody watching the Nigerian situation can know it can be touch and go. It’s so fragile that February 16 is a day we should watch out for. If it goes well, the votes are counted, things settle, both sides accept it…but it’s absolutely fragile.

Then even if we survive February 16, the other large question is: the person who becomes chief executive, whoever the person may be, whether it is Buhari, Atiku, Kingsley Moghalu, do they understand what to do?

You cannot pick my driver to fly you to Abuja on Air Peace. If you see my driver in the aircraft, you will say, ‘what are you doing here?’ So that’s the thing. So this graphic representation of a president who is a driver is lost on us because once these big men wear agbada, you think they have anything in their head. They are … I’ve discussed with lots of them. Nothing! They’re empty headed people. And foreign collaborators of mine, friends and diplomats, they say ‘you guys are strong o! How do you deal with these guys? You know, I just had a meeting with so and so. He has not the faintest clue of what I was discussing. Not the faintest clue!’

Take hydro carbon, if you know what the foreigners are doing to us in hydro carbon, because we don’t understand it. We have no clue… We sign away contracts!

We are talking about crude oil production, everyone is focusing… Ok what’s in a barrel of oil? But there are 34 other value chains. I can name four that concerns me: Legal – Not a single Nigerian lawyer touches anything to do with legal in hydro carbon. Shipping – It’s so foolish that Shell ships our oil and charges us. And we have no ships. Insurance – We have multi-trillion dollar equipment in the seas, not a single insurance company in Nigeria insures anything. They are all dying. Banking – You have a bank account, they pay your salary, I hold it for you. What sense does it make? So Nigeria’s foreign proceeds are held by foreign banks, whereas we have local banks.

So we are all shouting two million barrels of crude and the whites are laughing because they are making money from the soft sides of oil. And then you wonder when you talk with some of these international people, they shake their heads and say, you guys…

I was in Ethiopia the other day with my wife, small country. Within the hour, five aircraft took off to Nigeria. One went and landed in Kaduna, Kano, Abuja, Enugu and then I boarded mine for Lagos and I said, if these guys can do it, what’s wrong with us?

I was in Zimbabwe; I was shocked that in spite of 40 years of Mugabe, Zimbabwe works better than Nigeria and has a national carrier. I saw at least 20 aircraft. Then I saw Air Malawi, I saw Air Mauritius and we cannot even put a national carrier! The minister of state for aviation started one, spent five billion and suspended it. There is something wrong with us. There is something wrong with us.

So, you can see that this judiciary nonsense has larger implications. What you are seeing is like if something has a scratch, a wound and you think it’s a sore, you won’t know it’s the beginning of diabetes.  So the sore we see that has struck Onnoghen is a larger medical problem.

On a lighter mood, is it possible for one to actually know all the assets he has when you say declare your assets?

Yes, it is. So, what you are saying is that it is possible for Onnoghen to have forgotten?

I thought they say that when you realize you made a mistake, you can be allowed to correct it?

Yes, the process is self correcting.

So why was he not given the benefit of the doubt?

Because that is not the issue, the issue is the malaise of Nigeria and he represents what can be used. Not what he did because he is not the first. Many have done it and gotten away with it. Many have understood how to do it and then fight. When they went against Saraki, what happened? Is he not there?

Because Saraki has multitude of forces. He has the budget, but Onnoghen has no money. See, that is part of the weakness of the judiciary. It’s that they can speak but they don’t have bite because I can remember when my old man was the CJ of East Central State, I said what if… I remember one day he passed a death sentence… I said what if some armed robbers come and….because there was only one policeman at the gate.

So part of what is going on here is the judicial system needs to be really re-jigged. Saraki survived it. They threw all kinds of things at Saraki, they all survived it. Tinubu too survived it. But this man now, because there is nothing to back him…I can tell you he is off, he is going, both him and the acting CJN will go.

Does that spell anything good for us?

Well, the story is that the NBA and the vice president and the attorney general and the NJC feel that this can’t go on for too long and that Onnoghen is being persuaded that it’s in the interest of the judicial institution to survive, even if that might cost you personally. And I think that is what they are trying to get him to do. And after he has done so, he’s still free to clear his name.

And in respect of Tanko Mohammed, his own is very simple. He committed an act of misconduct by appearing before the president. So both go and in a clean sweep, start afresh, appoint a new CJN.

There is this thing trending that the acting CJN, Tanko Mohammed, is a Sharia judge, who shouldn’t have been considered at all. What’s the difference?

There is the English system of law in Nigeria and the customary system. In the South, we call it customary courts. In the North, it’s referred to as Sharia. So, his background is Sharia. He’s a Muslim scholar. He has a PhD in Islamic Law. So, he was first appointed as a judge of the Sharia court. Then as you climb through, you then have the representation of customary and Sharia judges in the Appeals’ Court. And in the Supreme Court there is always somebody learned in Sharia. So, potentially, he is representing that leg of it in the Supreme Court.

As a Sharia judge, won’t that contradict the secular nature of Nigeria, should he be retained as the CJN?

No, that won’t affect anything. He will just blend. There have been many Sharia judges from the North. That won’t affect…what might affect is the fact that he’s broken the rules in the sacred sepulcher of the NJC by presenting himself to be sworn in. That will not go down well with the NJC.

Now, don’t you think that ab initio, all this was to get Onnoghen out of the way because this thing of resign, step aside or not was just to get someone else in the place? So don’t you think the person pushing for that has achieved his aim, acting CJN or not?

Absolutely, I agree with you because the damage has been done. You are quite right. And that’s part of the challenge. We can only pray that Nigeria will continue to grow.