Human rights activist, Femi Falana (SAN), has thrown more light on the authority and due process to be taken on the CJN before evoking Presidential order either to suspend or complete removal from office.
Falana said he made the request having confirmed that a petition had been submitted to the National Judicial Council (NJC) alleging grave misconduct against Onnoghen.
In February 3 letter addressed to the Attorney General of Federation and Minister of Justice, Abubakar Malami, Falana urged him to advise President Muhammadu Buhari to reverse the suspension because a public officer could not be removed from office on the basis of an ex parte order granted by any court or tribunal in Nigeria.
The letter read, “Since the charge of false declaration of assets was filed against the Chief Justice of Nigeria, Justice Walter Onnoghen at the Code of Conduct Tribunal, by the Code of Conduct Bureau, I have repeatedly requested you to use your good offices to discontinue the case. My request was anchored on the case of Elelu-Habeeb v Attorney-General of the Federation & Ors (2012) 40 WRN 1 where the Supreme Court held that by virtue of Section 292 of the Constitution of Nigeria the head of any of the judicial arms of state and federal governments cannot be removed from office without a prior investigation conducted by the NJC.
“Having confirmed that you have since submitted a petition to the NJC alleging grave misconduct against the chief justice, I am compelled to request you, once again, to file a nolle prosequi to discontinue the charge pending against his lordship at the CCT without any further delay.
“The charge should not be allowed to hang like a Sword of Damocles on the head of the chief justice while he is being investigated by the NJC. In view of your implicit confidence in the ability of members of the NJC to resolve the matter you ought to accede to the request to terminate the proceedings at the CCT forthwith.”
Falana posited that the withdrawal of the case from the CCT would lead to the immediate vacation of the ex parte order relied upon by the president to justify the illegal suspension of Onnoghen and the appointment of Justice Tanko Muhammad as Acting Chief Justice of Nigeria.
“Even though by virtue of Paragraph 10 (2) (a) of Part 1 of the Fifth Schedule to the 1999 Constitution (as amended) the CCT is empowered to order any public officer to vacate office the power cannot be exercised until such a public officer has been tried and convicted for breaching the provisions of the code of conduct for pubic officers.
“But as a public officer cannot be removed from office on the basis of an ex parte order granted by any court or tribunal in Nigeria we urge you to advise President Buhari to reverse the suspension of the chief justice.
“Once the suspension is reversed Justice Onnoghen will then be prevailed upon to resign as the chief justice having lost the moral authority to preside over the affairs on the juridical organ of the government of the federation.
“However, if his lordship does not call it quits or if the NJC does not recommend his removal from office you may wish to exercise your powers under section 174 of the Constitution to prosecute him for failure to declare his assets which is a punishable offence under the Code of Conduct Bureau and Tribunal Act.
Whether the clarification speaks volume or not, many at times our constitution is a subject of interpretation, especially when there are vested in interest on a subject.