The confirmation of the retirement of the immediate past Chief Justice of Nigeria, Justice Walter Onnoghen and that of the appointment of his successor, Justice Tanko Muhammad, have generated some issues.
Justice Muhammad was on Thursday, July 17 confirmed by the Senate after his name was forwarded by President Muhammadu Buhari following his confirmation by the National Judicial Council (NJC).
The NJC, chaired by former President of the Court of Appeal, Justice Umar Abdullahi, had on July 11 recommended Justice Muhammad to President Buhari for confirmation as substantive CJN.
The Director of Information of the Council, Soji Oye, said the confirmation followed the screening of two candidates presented by the Federal Judicial Service Commission for appointment as CJN.
CSO still opposing Justice Muhammad’s appointment
After the initial suit by a civil society organisation, Incorporated Trustees of Malcolm Omirhobo Foundation, challenging the confirmation of Muhammad was dismissed by an Abuja Federal High Court, the lawyer in the matter, Malcolm Omirhobo, brought another suit before the court on Wednesday opposing the appointment.
In the fresh motion filed before the court, Omirhobo contends that Justice Muhammad committed an act of misconduct by allowing himself to be used by the executive “to undermine the independence of the Nigerian judiciary and in the process violating the Constitution of Nigeria and the Code of Conduct of Judicial Officer and thereby not a fit and proper person to be appointed as the substantive Chief Justice of Nigeria.”
Omirhobo is arguing that by the provisions of sections 1(1)(2), 231（4) (a) (i)(b), 153(1) and Paragraph 21(a)(b) Part I of the Third Schedule of the 1999 Constitution, the former CJN Onnoghen had not vacated his office as at 25th January, 2019 when Justice Muhammad was sworn in as Acting CJN.
Confirmation of Justice Onnoghen’s retirement
The spokesman of President Muhammadu Buhari, Garba Shehu, had in a statement on Sunday June 9 said the voluntary retirement of the Chief Justice was accepted by the president and became “effective from May 28, 2019.”
Also, the NJC in a statement on June 10 said the acceptance of Onnoghen’s retirement is in line with the Council’s recommendation to the President on 3rd April, 2019.
In the statement signed by Oye, NJC also stated that the decision of the president to approve Onnoghen’s retirement was “in the interest of Nigeria.”
Punishment against Onnoghen
Though Justice Onnoghen on April 4 tendered his resignation, he was on April 18 convicted by the Code of Conduct Tribunal (CCT) on the 6-count charges of false asset declaration filed on January 11, and banned from holding public office for 10 years.
In the lead judgment, the chairman of the tribunal, Danladi Umar, ordered the immediate removal of Onnoghen from office as the CJN and Chairman NJC as well as the Federal Judicial Service Commission (FJSC).
Beside the 10-year ban, the CCT chairman ordered the forfeiture of all the monies in the five accounts which the prosecution said Onnoghen failed to declare.
Justice Onnoghen however appealed against the verdict of the CCT. The appellate court is yet to determine the matter.
What Justice Onnoghen would earn as retirement benefit
Some observers have viewed the Federal Government’s acceptance of Justice Onnoghen’s retirement as a commutal of the conviction to retirement with full retirement benefits.
According to the Remuneration Act 2008 of the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC), retired CJNs earn 300 percent of their annual basic salary, which is N3,353,972.50 and comes up to N10,091,917.50, as severance package, payable only once upon successful completion of their tenure.
Other justices of the Supreme Court also earn 300 percent of their annual basic salary being N3,477,110 which comes up to N7,425,330, payable once upon successful completion of their tenure.
Retired CJNs get a new duplex constructed for them in a highbrow area of the Federal Capital Territory. They will also continue to enjoy their regular salary as at while in active service. They are also to have their official cars renewed for them every four years.
Legal contention over FG’s decision
A former President of the Nigerian Bar Association (NBA) and member of the NJC, Abubakar Mahmud (SAN), said since the ex-CJN’s case involved a conviction which has not been set aside by the court, the president’s acceptance of his retirement may not be enough to let him off the hook.
Mahmud, who as a member of the NJC said he was not part of the NJC Disciplinary Committee that examined the petitions against Justices Onnoghen and Muhammad – for presenting himself for appointment while Onnoghen was yet to vacate his seat, however added that the matter would still be resolved in the courts.
“Prerogative of mercy is brought when all judicial avenues have been exhausted,” he said.
Also, Ahmed Raji (SAN) stated that the issue of Justice Onnoghen’s retirement and trial are two separate issues.
“Until set aside by the appropriate court or compromised, the CCT conviction stays. However, since the matter is on appeal and with the new developments, it is hoped that the matter will be resolved in the interest of all,” he said.
In the same vein, Abuja-based human rights lawyer Hameed Ajibola Jimoh Esq said merely accepting the ex-CJN’s resignation cannot amount to a grant of retirement or pardon by virtue of Paragraph 18(7) of the Part I to the Fifth Schedule to the Constitution.
“Furthermore, it is worthy to also emphasize that in any case, the ex-CJN’s prosecution and conviction was by virtue of his being a public officer and not as a judicial officer as provided by the Part I and II to the Fifth Schedule to the Constitution and by his Lordship’s Judicial Oath taken as contained in the Seventh Schedule to the Constitution.
“Therefore, only the appellate court can reverse or set aside such conviction not even the President can set it aside or pardon same. See: paragraph 18(4) and (5) of the Part I to the Fifth Schedule to the Constitution,” he said.
In his view, E.M.D. Umukoro Esq said the conviction of Onnoghen by the CCT stays and can only be removed by a presidential pardon or the Court of Appeal upturning the CCT’s judgment on appeal.
“The only thing the acceptance of the letter of resignation has done is just the former CJN’s retirement which, in my view, entitles him to his retirement benefits,” he said.
“It is hoped that effort will be made to amend the Constitution so the Executive does not remove the Head of the Judiciary at will to guarantee their independence,” Umukoro said.
But human rights activist and director of Citizens Advocacy for Social and Economic Rights (CASER), Frank Tietie, said the act of acceptance of the ex-CJN’s retirement by President Buhari is “neither an act of magnanimity nor benevolence.”
“The former Chief Justice did no wrong. He was a victim of powerful permutations and machinations in a skewed system where there ought to be checks and balances as expected in a presidential system of government.
“That Onnoghen will collect his benefits despite the ruling of the CCT is just a way to placate members of the judiciary, particularly the NJC, many of whom have been so highly embarrassed, shocked and humiliated by the treatment meted on Onnoghen.
“The move to mitigate Onnoghen’s travails, even after his conviction by the CCT, is tactical on the part of the government’s strategists,” he also said.