On the eve of the largest election in Africa’s history (now scheduled for this Saturday, February 23), the New York City Bar Association is gravely concerned by the suspension of Chief Justice Walter Onnoghen by Nigeria’s President Muhammadu Buhari. President Buhari’s action came mere days after a petition alleging irregularities in the reporting of assets was lodged against the Chief Justice by confidants of the President – and mere weeks before the contentious, too close-to-call Presidential election, which principally pits incumbent President Buhari, of the ruling All Progressive Congress (“APC”) party, against Atiku Abubakar, a former vice president and prominent business man, who is representing the People’s Democratic Party (“PDP”), the primary opposition party.
The motives underlying the suspension of the Chief Justice are suspect because, under Nigerian law, the Chief Justice normally would play a key role in deciding any legal challenges to the election, in which President Buhari is seeking a second term. The international community, as well as Nigerian lawyers, civil society, and the Nigerian Senate, have voiced concerns that the timing of President Buhari’s suspension of the Chief Justice may be seen as an attempt to ensure that the President prevails in any post-election legal challenges.
Apart from the matter of its motivation, Nigerian legal scholars, international authorities, and commentators have observed that the Chief Justice’s suspension is also procedurally and substantively infirm. The Nigerian Constitution provides for the Chief Justice’s removal by the President only where a two-thirds majority of the Senate supports the removal. The President here lacks the requisite Senate support. Because the President lacks the authority to unilaterally remove the Chief Justice, President Buhari’s suspension of the Chief Justice violates basic precepts of checks-and-balances and separation of powers that are embodied in Nigeria’s Constitution.
Further, it is highly troubling that the Code of Conduct Tribunal order that the President cites as the basis for the Chief Justice’s suspension was issued ex parte. More fundamentally, however, the Code of Conduct Tribunal – part of the Executive Branch – is acting beyond its authority in entertaining the petition that was lodged with it. The Code of Conduct Tribunal’s own precedent squarely holds that cases involving judicial officers are subject to the exclusive jurisdiction of the National Judicial Council. Moreover, in proceeding to consider the petition against the Chief Justice, the Code of Conduct Tribunal’s actions flouted the orders of at least four courts – the Court of Appeal, the National Industrial Court, the Court of Appeal, and two Federal High Courts.
Under the U.N. Basic Principles on the Independence of the Judiciary, it is the duty of all governments to ensure the independence of the judiciary and to guard against any inappropriate or unwarranted interference with the judicial process. The circumstances of President Buhari’s suspension of Chief Justice Onnoghen contravene clear provisions of the U.N. Basic Principles governing both the bases for, and the process for, the removal of a judge. Similarly, the Chief Justice’s actions cannot be reconciled with Nigeria’s obligations under the Economic Community of West African States (“ECOWAS”) Protocol on Democracy and Good Governance.
Just as the U.N. Basic Principles on the Independence of the Judiciary are intended to safeguard judges and their ability to fulfil the duties of their office, the U.N. Basic Principles on the Role of Lawyers are intended to afford parallel protections for lawyers in their work. Some of the judges and defense lawyers who are handling the Chief Justice’s case unfortunately have been subject to threats, interference, and intimidation. Security forces arrested one of the Chief Justice’s senior defense counsel. Harassment and detention of lawyers for their actions in carrying out the professional responsibilities constitutes a fundamental breach of the U.N. Basic Principles.
In the past, Nigeria’s elections have been plagued by deadly violence. Tensions were already running high this year, even before the President’s suspension of the Chief Justice further stoked the fires. The one-week postponement of the election has made the situation more combustible.26 27 But the postponement also has left President Buhari with a critical window of opportunity to take action before the election to assuage existing reservations at home and throughout the international community as to Nigeria’s commitment to judicial independence, checks-and-balances, the separation of powers, and the rule of law.
The New York City Bar Association calls on President Buhari to immediately reinstate Chief Justice Onnoghen. In addition, if the petition pending before the Code of Conduct Tribunal is not withdrawn, it should be promptly dismissed for lack of jurisdiction. The Executive Branch has now filed papers setting forth the same allegations with the National Judicial Council, which is the sole competent forum under the Constitution. Proceedings before the National Judicial Council should unfold in accordance with that body’s routine, established practice, ensuring that the Chief Justice is accorded the full measure of due process.
Nigeria’s 2019 national election coincides with the 20th anniversary of the nation’s return to democratic rule. The eyes of the world will be on Nigeria tomorrow as its people head to the polls to cast their ballots. President Buhari must do everything in his power to see that the election is peaceful, free, fair, and fully consistent with Nigeria’s Constitution and laws, as well as all of Nigeria’s international human rights commitments. To that end, the President must take action now to restore Chief Justice Onnoghen to the bench and let the National Judicial Council process unfold in due course, so that the Chief Justice may preside over the Supreme Court when it is confronted with the inevitable thorny election-related disputes that lie ahead. Indeed, if the President were to fail to reinstate the Chief Justice, the Chief Justice’s unconstitutional suspension would itself cast a long shadow over the election and could serve as compelling grounds to contest both the integrity and the outcome of the electoral process.
The New York City Bar Association will continue to monitor developments closely.
Roger Juan Maldonado
Victoria L. Safran
African Affairs Committee, Chair
William A. Wilson III
Task Force on the Independence of Lawyers and Judges, Chair