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IN THE FACE OF MOUNTING THREATS TO JUDICIAL INDEPENDENCE, COURT OF APPEAL VERDICT IS A HOLLOW RITE OF PASSAGE

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Introduction

On May 10th 2019, the Court of Appeal struck out appeals against the ex-parte Orders of the Code of Conduct Tribunal (“Tribunal”) suspending (former) Chief Justice of Nigeria, Hon. Justice Walter Onnoghen from office.President Muhammadu Buhari had, on the strength of the Order of the Tribunal suspended Justice Onnoghen from office as Chief Justice of Nigeria and appointed Hon. Justice Tanko Mohammed as acting Chief Justice of Nigeria. 

In the unanimous judgment of the Court of Appeal (Coram:Justice Stephen Adah, Justice Tinuade Akinmolade-Wilson and Justice Peter Ige), the Court dismissed three of the four appeals of Justice Onnoghen on the grounds that the substantive matters from which they arose had been concluded as the Code of Conduct Tribunal had convicted Justice Walter Onnoghen of the allegations against him already on April 18th 2019. The fourth appeal was struck out for lack of competence. 

The Court of Appeal however found that the ex parte order granted by the Tribunal on 23rd January 2019 had breached Justice Onnoghen’s right to fair hearing becausethe order was obtained in a manner “shrouded in secrecy and clandestine maneuvre”. The verdict of the Court of Appeal comes three months after the panel reserved judgment on the appeals filed by Justice Walter Onnoghenin connection with his trial before the Code of Conduct Tribunal. 

Had the decision of the Court of Appeal been delivered sooner, at a time when it could have mattered, it would have represented a timely intervention required, at that time, to meet the exigencies of the situation in the Tribunal; it could have halted the travesty and charade that was being played out by the Code of Conduct Tribunal, under the guise of a trial. Today, the judgment of the Court of Appeal faulting the obnoxious ex-parte Order suspending Justice Onnoghen, as well as denouncing the Tribunal’s disregard of the Orders issued against it by other courts halting its proceedings, has little else to it besides academic value. The judgements, are, therefore, not much other than hollow rites of passage. The Court of Appeal’s moralizations on the conduct of the Code of Conduct Tribunal at this time, therefore, are of too little value because they were too late. Though the Court of Appeal has reasoned that the appeal by Justice Onnoghen has been rendered moot given the conclusion of proceedings against him by the Tribunal, it was not as much the appeal as it was the Appellate Court that had rendered itself moot, out of reckoning, out of service and out of reach. 

The decision of the Court of Appeal to reserve its judgments for such length of time that saw theproceedings of the Code of Conduct Tribunal wind up is unfortunate. Whatever the Court of Appeal’s views were on the conduct of Justice Walter Onnoghen, what was at stake was well beyond the scope of Justice Onnoghen’scircumstance. What is at stake is the ideology of the court’s role in preserving constitutional democracy and the rights of citizens. That role is clearly much broader, and deeper than the complexion of a single case. It implicates the rights of ordinary citizens who have to seek the court’s intervention in preventing some irreparable harm to them. The courts have often said that they are the last bastions of hope for citizens, the guardians of the Constitution, the wedge that stands between oppression and liberty. The example set by the Court of Appeal in Justice Onnoghen’scase is diametrically different to the role and duty courts have, and the expectations citizens have of the courts.

As things stand today, the judiciary is laboring under serious threats to its independence, coming mostly from the executive arm of government, both at the centre and in the States, witnessed by what has been going on in the Kogi State Judiciary in the case of the latter. This ought to be a time when courts would rise up, and defend Nigeria’s hard-won constitutional democracy with valour and defiance. But our courts are drawing a blank, and making citizens fear for their ability and readiness to protect them and the rule of law in a country beset by so many problems of governance. If tyranny persists in Nigeria, it is because courts are, in the main, failing the Nigerian people.

Joseph Otteh​​​​​Daniel AloayeIgiekhumhe

Convener ​​​​​Programme Officer

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