Section 290(1) of the 1999 Constitution (Hereunder referred to as ‘the Constitution’) mandates any person appointed to any judicial office to declare his assets in the manner prescribed by the Constitution, before he performs the functions of that office.
Paragraph 11 of the Code of Conduct for Public Officers, Fifth Schedule of the Constitution Hereunder referred to as ‘Code of Conduct) is to the effect that every public officer shall within three months after taking office and thereafter at the end of every four years, submit to the Code of Conduct Bureau, a written declaration of all his properties, assets and liabilities.
On the other hand,Paragraph 3 of the Code of Conduct prohibits public officers from maintaining and operating foreign Bank accounts.
By the combined effect of Section 290 of the Constitution, Paragraph 19 and Part II of the Code of Conduct, Hon. Justice Onnoghen (JSC) is undoubtedly a public officer bound by the provisions of the Code of Conduct.
The facts in the public domain, which forms the charge filed against His Lordship, Onnoghen, JSC, at the Code of Conduct Tribunal are that, some of the foreign accounts operated by his Lordship, some of which were opened in 2014, (three years before his appointment as Chief Justice of Nigeria-CJN) were not declared within the time prescribed by the Code, or were not declared at all.
From the above, it may be said that Onnoghen, JSC did not only breach the Code that prohibits a public officer from maintaining and operating a foreign Bank account, he also breached the Code that mandates him to declare those accounts within a prescribed time.
Paragraph 12 of the Code of Conduct provides that any allegation that a public officer has committed a breach or has not complied with the provisions of the Code of Conduct, shall be made to the Code of Conduct Bureau. By the provisions of Paragraphs 15 and 18 of the Code of Conduct (which is an integral part of the Constitution), such allegations of breach are to be determined by the Code of Conduct Tribunal (Hereunder referred to as ‘the Tribunal’).
Accordingly, it can be rightly said that the twin acts of Onnoghen, JSC, to wit: maintaining foreign Bank accounts, contrary to Paragrah 3 of the Code of Conduct and failure to declare those accounts within 3 months of being appointed CJN or within the routine 4 years, in contravention of Paragraph 11, amount to breach of the provisions of the Code of Conduct. Therefore, the Tribunal has jurisdiction, exclusive of any other court or administrative tribunal to adjudicate upon the charge.
Another question that begs for answer is whether the suspension of Onnoghen, JSC as the CJN is illegal?
Paragraph 18 (1) and (2) of the Code of Conduct empowers the Tribunal to impose punishment on any public officer (without any exception) whom it finds guilty of contravention of any of the provisions of the Code of Conduct. One of such punishments is to order the public officer to vacate the office held.
If the Tribunal is empowered to order a public officer to vacate office, it can be rightly argued that the Tribunal had the inherent power to consider the application for the suspension of the CJN, pending the determination of the charge, especially giving the peculiarities of the case.
What is more, Section 292 (1) (a) (I) of the Constitution only made provision for the removal of the CJN. It is to the effect that the CJN shall not be removed from his office before his age of retirement except by the President acting on an address supported by 2/3 majority of the Senate. Both literally and legally speaking, ‘suspension’ and ‘removal’ have different meanings and effect. Therefore, the order of suspension made by the Tribunal cannot be said to be in conflict with Section 292 of the Constitution or illegal.
Thus, the call for the Tribunal to review or set aside the suspension order it made, if done, would amount to the Tribunal sitting on appeal over its decision, which is unknown to our law. In the same vein, the call for the National Assembly to review the order made by the Tribunal, if answered, will amount to a derogation of the age long principle of separation of power engraved in the grund norm of the land.
At best, if the Honourable Justice of the Supreme Court feels aggrieved by the decision of the Tribunal, His Lordship should, in line with Paragraph 18 (4) of the Code of Conduct exercise his right of appeal and challenge the order at the Court of Appeal.
Victoria Jonah, Esq.