Monday, June 14, 2021

On Justice Onnoghen, by Mohammed Adamu

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Jaafar Jaafarhttps://dailynigerian.com/
Jaafar Jaafar is a graduate of Mass Communication from Bayero University, Kano. He was a reporter at Daily Trust, an assistant editor at Premium Times and now the editor-in-chief of Daily Nigerian.
tiamin rice

The late American humorist, Art Buchwald said about the ‘law’ that “the more complicated lawmakers make it, the more work it generates for lawyers”. Had the ‘Ten Commandments’ been written by a lawyer, he said, “Moses could never have carried them on a stone tablet”. It would have been so voluminous, Moses would have had to haul it “down from Mount Sinai on to the Rock of Gibraltar”. Besides, such ‘divine judicature’ sullied by the pedantic pen of man, would also have been so verbose, Moses himself would have had to require an encyclopedia or concordance of ‘words’ and ‘phrases’ to decode.

Lawyers would not have written the ‘Mosaic law’ in the simple, verb-al imperative of ‘thou shalts’ and ‘thou shall nots’ –because these would not lend to the contrapuntal legalism that man-made law is hostage to. Such categorical imperatives of ‘thou shalts’ and ‘thou shall nots’, would not be ‘complicated’ enough to mystify the ‘law’ and thus to create the schisms necessary to generate work for lawyers. In fact if lawyers had written the ‘Ten Commandments’, they would have drenched it in the archaic adverbials of jargons like: ‘hereto-fore’, ‘herein-after’ and ‘herein-aforesaid’.

Such is the obfuscating nature of man-made laws that to a gathering of law graduates, Buchwald once said:

“Every time a new regulation is issued, a new law is passed, and an old law is repealed, fifty thousand lawyers are needed to explain it. Just one amendment to the IRS code will give every lawyer in this country enough work to last him fifteen years. One memorandum from the Food and Drug Administration will provide enough litigation to feed your families for the rest of your lives. Our country” he said “looks kindly on lawyers. Our government hires them to make the rules. Then the private sector is forced to hire lawyers to find ways of breaking them”

But such is also the nuisance value of lawyers that Buchwald would say that “even if the meek do inherit the earth” (as the Bible promises) some selfish lawyers will insist they “have to probate the will”. Buchwald said the only reason he disagreed with a survey which had rated lawyers “lower than garbage collectors” was that he knew “many lawyers who would make good garbage collectors” but did not know “one garbage collector who would make a good lawyer”.

But nowadays even laymen now know as many ‘lawyers’ who would not even make ‘good garbage collectors’ as they know also many ‘garbage collectors’ who will make ‘good lawyers’? Especially in my country where the ‘law’ nowadays is neither what the statute books proclaim it is, nor is the law what the judges say it is! In Nigeria the ‘law’ is now merely a compendium of the geo-political and ethno-religious prejudices and biases of every Tom, Dick and Harry, -every Adamu, Jegede and Okwonkwo!

By the way, unlike the job-creating potentials of Buchwald’s ‘complicated laws’, the laws of my country do not even require to be ‘complicated’ to generate work for our lawyers. It is immaterial that our laws are ‘complex’ or ‘simple’, because either way they are nonetheless guaranteed always, to be ‘controversial’ -and therefore to generate work for lawyers. In fact the simplest, most unambiguous piece of legislation in my country is still a veritable source of acrimonious national debate and argumentation.

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Once when I wrote ‘Yar’adua: Now that everyone is a lawyer’ (Peoples Daily, 02/12/10) I said that there are three groups in this country whose devil-advocating attitude towards the law and the ‘rule of law’ is the reason we are always in a mess in this country. And these are: ‘mischievous lawyers’ who do too little law but so much politics; ‘crooked politicians’ who claim to know law better than lawyers and ‘compromised journalists’ who appear to do more law and politics than journalism”.

And we have allowed ourselves to be hijacked by this troika of mischief makers who over time have come to the realization of the efficacy of their combined influence over society; and together they now constitute a gangling pack of ravenous hyenas; patient and persevering; nibbling and nagging; squealing and squeaking, they are determined always to go the distance to bring their prey down. What they ignore remains rested; what they want as agenda is set! They will strain at a gnat but they will ignore a whole camel. They will magnify trivia to the height of national debate, but they will look the other way when murder and arson are committed on a scale.

Yet they claim always to act in deference to ‘law’, to the ‘rule of law’ and to the ‘due process of law’.

Yet in 2003, in total disregard for law, and for the due process of law, they elevated ‘political discretion’ to a code of ‘moral obligation’ when they insisted that Obasanjo must emulate Mandela and forgo a second term. The argument was so obdurately made and so stubbornly canvassed, you would think it was criminal for an incumbent president to avail himself of the constitutionally-guaranteed privilege of contesting a second term. Obasanjo’s legitimate attempt was made to look treasonable and unless you saw it that way you were an enemy of democracy and of the due democratic process. But that was not all.

The constitutional provision of Section 145 which requires a president proceeding on leave to transmit a letter to the National Assembly was premised upon the conditional conjunctive ‘whenever’ the President transmits’, and not on the mandatory verb ‘shall’ –which obligates the President to transmit. Thus it was clear that President Yar’adua, although he was expected honorably to ‘transmit’ a letter to NASS (like Buhari does) so that his Vice could assume ‘Acting capacity’, he was never constitutionally obligated so to do. Nor would failure on his part to do so have left the Vice President any less empowered to run every gamut of governmental administration.

In fact a ruling by justice Abutu had confirmed this argument in a suit by Falana which had asked the Court to compel ailing Yar’adua –then bed-ridden in far away Saudi Arabia- to ‘transmit’. Justice Abutu, in throwing out that suit, had said that Jonathan as ‘Vice President’ even without such investiture, had all the powers of a president and that rather than quibble and split hairs over such trifling trivia as being made ‘Acting President’, he should get down to action. But no! The troika of ‘mischievous lawyers’, ‘crooked politicians’ and ‘compromised journalists’, in spite of their vaunted claim to deference to ‘law’ and to the due process of law, would have none of that!

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And we saw how this same troika of mischief schemed to heat up the polity unnecessarily. Vice President Jonathan, who had previously in that capacity had executed one of the most important duties of a president -namely commanding the military for internal peace-keeping operation in Plateau- was instigated suddenly to pretend he hadn’t the constitutional powers to conduct any major executive function including as ordinary as the swearing in of Federal Perm-secs and as momentous as administering an oath to a new Chief Justice, Justice Katsina Alu.

And if memory serves right, it had to take the then outgoing Chief Justice, Legbo Kutigi, several days buried in the archives of the Supreme Court to unearth an old ‘Oath Act’ and from which he claimed the power to swear in his own successor (in good enough time to avoid an imminent constitutional crisis), which he mischief makers had hoped to create.

And now even with an ailing Buhari recuperating in nearby London, this same troika it appears is sniffing desperately for some casus belli to justify igniting another political crisis. They have started nibbling around the idea of a phantom ‘Buhari cabal’ in the State House that they want to allege hamstrings ‘Acting President’ Osinbajo from the performance of his duties. They have even said that he is under extreme pressure by some shadowy northern political ‘group’ or ‘groups’ to resign.

In fact this evil troika would wish Buhari had not transmitted a letter to NASS, so that by now they would have been up and about standing the ‘law’ on its head to prove how the entire country is about to cascade because Osinbajo is not made ‘Acting President’. Or they would wish Osinbajo himself is as pliant and as conniving as Jonathan was against ailing Yar’adua, so that by now he too would have been manipulated to ‘cry wolf’ about the large-looming gory image of his ailing Principal, Buhari in far away London, affecting his work.

That was what a manipulably conniving Jonathan once put us through in this country! I hope we are not on the verge of that despicable history repeating itself!

ONNOGHEN
Again it is this same perfidious troika of ‘mischievous lawyers’, ‘crooked politicians’ and ‘compromised journalists’ that is currently stoking the fire of geo-politics and ethno-religion concerning the so called ‘delay’ or ‘refusal’ by Mr. President to send the name of the Acting Chief Justice of Nigeria, Justice Walter Onnoghen to the Senate for confirmation. The President appointed Justice Onnoghen in Acting capacity, and which Section 231, (sub-sections 4 and 5) empowers him so to do in the first three months, -renewable afterwards for the same period subject to the re-nomination of the same candidate by the National Judicial Council, NJC.

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Every right-thinking lawyer who is not motivated by geo-politics or ethno-religion has said that the President was in order to do what he did –and that whether or not a motive can be imputed to his action, it is nonetheless within his constitutional powers so to do. But end-time lawyers as usual would have none of it! Egged on by mischievous politicians and by crooked journalists, they have been stridently crying wolf where there is not a puny little she-goat around! Who knows, the President may well have a motive (geo-political or ethno-religious or even both) but that must remain in the realm of conjecture. Should it not comfort those who claim to be champions of the ‘rule of law’, at least, that the President has acted within the boundaries of law?

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Listen to Femi Falana, a SAN: “The Constitution makes provision for Acting Chief Justice of Nigeria… So there is no cause for alarm. And this is not the first time we are having an acting CJN. Right now we have many acting Chief Judges in the states. Heaven will not collapse”! Or should it?

POSTSCRIPT
Prior to the appointment of Justice Musdapher as Chief Justice of Nigeria, CJN, the National Judicial Council, NJC had always sent to the President names of the three most senior justices of the Supreme Court in order of their seniority. Thus previous presidents had merely a ‘privilege’ -not a ‘right’- to select any one of the three nominees –even though records show that they had always exercised that privilege in deference to the most senior of the three nominees.

It was the attempt by former President Jonathan to exploit this gratuity for ethno-religious motive, that pushed the NJC under Musdapher to end this tradition. Thus Musdapher was the first CJN to insist that the NJC should present the name only of Justice Aloma Muktar. Credible intelligence had reached the Council indicating Jonathan had been advised by hawkish kinsmen to ‘damn the consequences’ and skip both Aloma and Mahmud to pick ‘his own’, Onnoghen.

It is on record also that on receiving the NJC list containing only the name of Justice Aloma, President Jonathan in fact returned it, insisting that the NJC should do the needful by respecting its time-honored tradition of sending three candidates, -a demand which the Council rebuffed again by re-sending Aloma’s name as the Council’s sole nominee. There was hardly any judicial correspondent in Abuja who did not know this. But the media never made an issue out of it.

If Jonathan had succeeded in retiring Aloma and Mahmud to install Onnoghen, you bet this same troika of ‘mischievous lawyers’, ‘crooked politicians’ and ‘compromised journalists’ would have been hands-stretched, plucking every imaginable reason from the void to justify.

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