The Senate President, Bukola Saraki, made a u-turn in the Senate’s suit challenging the suspension of Walter Onnoghen as the Chief Justice of Nigeria (CJN) at the Supreme Court, with the official reason given at the time being the senate’s trust “in the ability of the National Judicial Council (NJC) to resolve the issues”. However, according to SaharaReporters, the change of course by Saraki is really because it was clear he was going nowhere with the move.
Three days after President Muhammadu Buhari suspended Onnoghen as CJN on January 28, the Senate cancelled its sitting for the day and instead filed a suit through Saraki before the Supreme Court praying for, among others, an order reinstating Onnoghen as CJN. In the suit, marked SC.76/2019, the Senate asked the apex court to declare the suspension of Onnoghen without support of two-thirds majority of the Senate as a violation of section 292(1)(a)(i) of the Constitution. It also asked the apex court to issue an order restraining the two defendants in the suit – the President and the Attorney-General of the Federation Abubakar Malami – from continuing or repeating the violation of the Constitution and disregarding the power of the Senate in respect to the suspension of the CJN.
The Senate made an about-face on Tuesday February 5, citing trust “in the ability of the National Judicial Council (NJC) to resolve the issues”. However, SaharaReporters understands that this position was mere public posturing. The NJC formally took up the Onnoghen case on January 29 at a meeting from which both the suspended CJN and his successor Tanko Muhammad recused themselves. At the end of the meeting, the NJC gave both Muhammad and Onnoghen seven days to respond to the various allegations against them — meaning that if the Senate truly trusted the NJC in full, that was the day to withdraw the suit instead of Tuesday.
But Saraki did not have the backing of the National Assembly to go to court. To file the suit, he would have needed a resolution of the Senate, which he didn’t get. And it became clear this loophole would be exploited when the Senate caucus of the All Progressives Congress (APC), comprising 56 senators, applied to the Supreme Court to join in the Senate’s suit. “As you can see, we already protested and we were asked to be joined in the suit,” an APC senator who didn’t want to be named told SaharaReporters. “The Senate never made a resolution to file that suit; and even if there was an attempt at such resolution, it would have died a natural death as we, who have the majority, are firmly with the president on this.”
Also, public sentiment was beginning to count against Saraki after members of the public were reminded of how he sacked the Chief Judge of Kwara State, Justice Raliat Elelu-Habeeb, in 2009 during his tenure as Governor of the state. However, the Supreme Court eventually reinstated Elelu-Habeeb, with Justice Mahmud Mohammed, who delivered the judgement of a seven-member panel of justices, holding that when all the relevant provisions of the constitution were read together, it would become obvious that a state Governor could not remove a Chief Judge from office without having recourse to the NJC.
“It is not difficult to see that for the effective exercise of the powers of removal of a chief judge of a state by the Governor and House of Assembly, the first port of call by the governor shall be the NJC,” Mahmud had stated back then. “From these very clear provisions of the constitution which are very far from being ambiguous, the governors of the states and the houses of assembly of the states cannot exercise disciplinary control touching the removal of chief judges of states or other judicial officers in the states.”
Incidentally, Onnoghen was one of the six other justices, the rest being Christopher Chukwumah-Eneh, Muhammad Muntaka-Coomassie, Olufunmilola Adekeye, Mary Peter-Odili and Olukayode Ariwoola. Interestingly, Saraki lost the case against Elelu-Habeeb at all levels. When he sacked her, she instituted a case against him at the Federal High Court, where she won. But Saraki appealed to the Court of Appeal in Ilorin. In July 2010, the Court of Appeal ruled in favour of Elelu-Habeeb, and Saraki again appealed at the Supreme Court. On February 2012, the Supreme Court, as expected, reinstated Elelu-Habeed.
Finally, Paul Erokoro (SAN), counsel to the Senate, has been one of the numerous SANs leading the lawyers’ revolt against Onnoghen’s trial at the Code of Conduct Tribunal (CCT). On the opening day of the matter at the CCT — way before the Senate dreamed of filing a suit against the Nigerian Government at the Supreme Court — Erokoro was one of at least 47 SANs who trooped to the tribunal in defence of Onnoghen. Meanwhile, the decision of the NJC on Onnoghen and Muhammad is being expected soon, as the seven-working-day deadline for their responses to the allegations against them will elapse on Thursday.
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