We recently had a constitutional crisis on our hands, which is still ongoing, but has now been over shadowed by the upcoming elections this February. The background of the matter started with the Chief Justice of the Federation, Mr. Walter Onnoghen, facing trial over alleged false asset declaration bought against him by the Code of Conduct Bureau. The President of the Federal Republic of Nigeria, Muhammadu Buhari suspended the Chief Justice based on an order of the Code of Conduct Tribunal dated the 23rd day of January 2019 and replaced him with Ibrahim Tanko Mohammed from Bauchi State.
The President’s actions caused an uproar around the world, especially amongst constitutional lawyers, who argued that the rule of law and democracy were being threatened by the executive arm of government and questioned whether the ‘separation of powers’ was really in operation within our democratic structure. The decision of the President also came at a time, when the Chief Justice was about to swear in members of the 2019 National Assembly Governorship & State Assembly Election Petitions Tribunals, which raised eyebrows from members of the opposition political parties.
The Constitution of the Federal Republic of Nigeria, defines the role of the President in the removal of an incumbent Chief Justice of the Federation, below:
REMOVAL OF JUDICIAL OFFICERS FROM OFFICE IN NIGERIA.
Section 292 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides that a judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances:
(a) In the case of
- Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President Customary Court of Appeal of the Federal Capital Territory, Abuja by the President acting on an address supported by two-thirds majority of the Senate,
- Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the state.
- praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;
Section 292 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides that the President can only remove an incumbent Chief Justice by addressing the legislative and obtaining at least two thirds of their support. This reiterates that no arm of government (the Executive) can make a decision on another arm of government (Judiciary) without getting approval from the other arm of government (Legislative). This is known in Constitutional law as the separation of powers and curbs out totalitarianism.
However, Section 11 of the Interpretation Act of 2004 contradicts the Constitution and provides as follows:
(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-
- power to appoint a person by name or to appoint the holder from time to time of a particular office;
- power to remove or suspend him;
- power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,
- to reappoint or reinstate him,
- to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.
Some legal and political commentators felt that the President had acted lawfully in the functions of his duties after reading and digesting this section of the Interpretation Act of 2004, whilst others felt that the provisions should be read in conjunction with the Constitution. They have indicated that the Act was not to put such power in the sole hands of one organ of government (the Executive). It’s intention they declared, was for the office of the President to obtain the support of the Senate (Legislative organ of government) before such a decision can be implemented.
The American Bar Association recently launched a new web-based fact check service to help the public find dependable answers to swirling and sometimes confusing legal questions. The American Bar Association Legal Fact Check explores widely disseminated legal assertions. Initial postings examine whether individuals can be punished for burning the American flag, explore who has the constitutional authority to redraw U.S. Circuit Courts and offer explanations on the power of presidential pardons and hate speech, among other topics.
The URL for the new site is www.abalegalfactcheck.com.
President Donald Trump is also causing a constitutional crisis in his country, on the building of the wall on the Mexican border. Congress has refused to approve any funds and so the President has decided to call a National Emergency and divert funds to finish the wall’s construction. The American Bar Association Legal Fact Check website published its opinion on the matter, reciting and clarifying the law in the situation. It published the following on its website;
‘The Constitution gives Congress the power of the purse. So, the central question centers on whether the president can legally re-direct appropriated funds to finish the border wall under an emergency declaration. Congressional efforts to block the president could be difficult because of the possibility of a presidential veto. More likely, the matter will be decided following a court challenge.’
The Law Society of England & Wales do not have such a Fact Check website, but the existence of one will also be beneficial to them according to Jonathan Goldsmith in his article published in the Law Society Gazette on the 19th of February 2019 titled ‘A Law Society role in political controversy’. He cites the case of Shamina Begum, the British school girl, who ran away to live with ISIS, but now wants to return back to the United Kingdom.
In Goldsmith’s own words;
“In this case, some of the legal questions are: Is she entitled to return home as a British citizen? Under what circumstances can the British government strip her of her citizenship? What citizenship does her baby hold? For which possible offences might she be investigated if she were to return? And under what kind of supervision regime is the government entitled to put her?”
These types of questions could easily have been dealt with by the existence of a Law Society Legal Fact Check Website according to the author.
It would also be extremely beneficial in the case of Nigeria, if the Nigerian Bar Association has such a website. Matters such as the right of the President to remove an incumbent Chief Justice of the Federation from his post or other constitutional and political/legal matters will be explained to members of the public via this website.
The existence of this mechanism will be welcome by many because it will not just benefit members of the public, but will provide answers to politicians, journalists and students.
The website will also encourage transparency, which is essential in any democratic form of government.
It will also enhance the reputation of legal practitioners in Nigeria as the role of the Nigerian Bar Association is to encourage members of the public with legal issues to seek advice from its members. (Legal practitioners)
Whenever there is a political controversy, the Nigerian Bar Association is usually silent, causing its members to form their own individual opinions and this has somewhat weakened the association as most do not speak with one voice. The website could put a change to all that.
The existence of a Legal Fact Check Website will also ensure that the government of the day carries out its duties in a lawful way and will be conscious of the fact that ‘legal eyes’ are scrutinising its activity.
Such a scheme will not just bring lawyers together, but will also provide an opportunity for legal experts to contribute to the maintenance of the website, providing their own knowledge and experience in the event of a political or constitutional crisis.
A Legal Fact Check Website will help bring about certainty during a political or constitutional situation, thus curbing out the idea of unrest within the country as a whole.
Lastly, it will help the Nigerian Bar Association to be seen as a source of impartial and useful advice in complex legal matters. But the question is who will be brave and strong enough to kick start the process?
ABOUT THE TUTOR
JIDE OGUNDIMU IS A SOLICITOR OF ENGLAND AND WALES PROVIDING LEGAL SERVICES TO MEMBERS OF THE PUBLIC. HE IS REGULATED BY THE SOLICITORS REGULATION AUTHORITY. HE HAS LEGAL EXPERIENCE IN AREAS SUCH AS LANDLORD AND TENANT LAW, ANTI-SOCIAL BEHAVIOUR, WELFARE BENEFITS, DEBT AND MONEY ADVICE, NEIGHBOUR DISPUTES, CIVIL LITIGATION, FAMILY AND ESTATE MATTERS, PRIVATE LAW AND DATA PROTECTION. HTTPS://SOLICITORS.LAWSOCIETY.ORG.UK/PERSON/19333/JIDE-BENJAMIN-OGUNDIMU
A SOLICITOR AND ADVOCATE OF THE SUPREME COURT OF NIGERIA, JIDE WAS CALLED 30 YEARS AGO. HIS FIRM IN NIGERIA, JIDE OGUNDIMU & CO SOLICITORS HTTPS://JIDEOGUNDIMUCOSOLICITORS.CO.UK/ DEAL WITH ALL ASPECTS OF LAW, INCLUDING PROPERTY CONVEYANCING, LANDLORD AND TENANT LAW, ESTATE AND WILL PLANNING, CIVIL LITIGATION, PRIVATE LAW, INFRASTRUCTURE AND MEDIA LAW.
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