Onnoghen Was Removed Because Of His Judicial Activism – Mbakwe

In this engaging chat with STEPHEN UBIMAGO, Barrister Leon Mbakwe argues that Chief Justice Walter Onnoghen was removal because he had a history of judicial activism on the bench, which the powers were too terrified to allow seeing the election will end up before a courageous judge like him. He also bears his mind on Atiku’s chances at the Tribunal, saying anything could still happen…

Recently Alhaji Atiku Abubakar, presidential candidate of the Peoples Democratic Party (PDP), won a Tribunal ruling requiring that INEC should avail him all electoral materials used in the February 23 presidential election. Reports have it however that the electoral umpire is denying Atiku access to the materials despite court order. Without access to these materials do you think Atiku still has a chance at justice at the Tribunal?

From the look of things, you’ll see that somebody has become law unto himself in Nigeria. We have a dictator who wants to make sure everything goes according to his whims and caprices. He wants to dictate everything. So, everybody seems to be playing the good boy in order not to attract the adverse searchlight. For the fact that there is no rule of law in Nigeria today, I don’t think anything will be surprising if the election petition tribunal comes out with a verdict that supplants justice. In any case, there is a kind of evidence you will have and even the worst of judges cannot run away from giving judgment in your favour. Don’t forget that Atiku is a political old horse. He has gone that part before. You will recall that in 2007, he ran against Yar Adua, Obasanjo’s anointed candidate at the time. And the abracadabra we normally see during elections in Nigeria happened and they went to court. Atiku almost won that case irrespective of the influence Obasanjo wielded at the time. Indeed he was almost there. The Supreme Court gave a judgment of four to three. So, if it could happen at that time, it can still happen this time. I think the Buhari people saw this coming when the president unceremoniously removed the Chief Justice Onnoghen. You will recall that in that case, it was Onnoghen that led the dissenting judges. For him, it does not matter what you think, the election must be nullified. It was the same Onnoghen that gave judgment against Omehia in Rivers in favour of Amechi who never contested in that election. He was trying to uphold the rule of law, and of course to discourage those who feel they were above the law. It was same Onnoghen that recently decided that Saraki should go back and face his trial at the CCT when others ruled to the contrary. They’d taken notice that he was a very fearless and courageous judge, very sound and of course a judicial activist. It was because they were afraid of an activist judge like him that they orchestrated his removal ahead of the election. To that extent, one would say you might not expect much to happen in his absence on the bench. On the other hand, I have no doubt in my mind that Atiku has very convincing and compelling case before the tribunal. So nobody can conclude that because of what happened to Onnoghen, and given the appointment of Tanko Mohammed, and the intimidation of judges by the Executive, then Atiku has no chance at justice in his case. For me it is a 50-50 thing. Anything can happen.

There is a certain report that the government is seriously digging up sleaze on the Tribunal judges, which are to be used as instrument of blackmailing them into play ball in terms of the judgment they’re expected to deliver at the Tribunals. Given this state of affairs, do you think the Tribunal judges will be able to rise to the occasion?

Well, I think most Nigerians think the tribunal judges will sell out. It stands to reason that the whole idea is to ensure that the judges are intimidated and left with no mind of their own. Like I’ve said if anything happens in that direction, I will not be surprised. But you can never be too sure with judges. Some of them might say: if they must be forced out of the service, let people at least see them as courageous. I also know that if this election is nullified, there is little or nothing this government can do about it or against the judge in terms of reprisal. The reason we are talking about every move of the ruling party is because they don’t even know how to play their game. You will also recall the CUPP’s recent outcry to the effect that the presidency has already influenced the selection of the judges to hear the Atiku case, given APC’s connection to Justice Zainab Bulkachuwa, President of the Court of Appeal, which is the Election Petition Tribunal for presidential election. Expectedly, these judges will attract the searchlight of the world and therefore will be under the pressure of their consciences. So, if the allegation that they were handpicked is correct, then ordinarily we should not expect them to do justice.

Justice Tanko Mohammed in his excuse to justify accepting his appointment as acting CJN said he did not know that Onnoghen had been removed. In your estimation, can Tanko’s excuse hold any water?

That excuse is simply untenable. Who is he telling that? His appointment is part of the whole grand plan to ensure that the election was not overturned. Even if you look at the section of the Constitution he is relying on for accepting the appointment, that is section 234 of the Constitution, it says the president can only appoint a CJN in acting capacity if the office of CJN is vacant or if the person occupying the office is incapacitated. The question is: was the office of the CJN vacant at the time he was appointed? Was Onnoghen in a state of incapacitation at the time? The answer is ‘No’.

Are you asserting then that Tanko’s appointment is irregular in the eye of the law?

Yes.

Are you then saying that Justice Tanko’s act of swearing in the Election Petition Tribunal judges is also irregular, since his own appointment is irregular, with the consequential effect that these irregularities might result in the invalidation of the judgments that will emanate from them, thereby throwing the country into some Constitutional crisis?

Like I said before looking at the section of the constitution he referenced to justify what he did, I can see that there is nothing to support it. The office of the CJN was not vacant at the material time and there was nothing that incapacitated the CJN at the time too. Even the idea of removing him using an ex parte motion is offensive to the law. It is not done anywhere. So whatever thing he has done against this backdrop is ultra vires ab initio. He did them beyond his powers. But there is something that is regular in Nigeria’s judicial process, which is not very bad though. Sometimes the security aspect of things is put into consideration. Now if a judge gives a judgment that stabilizes the polity, I wouldn’t see somebody going to technical details to upturn it on the ground of this apparent irregularity. This is because the court would often consider that if you overturn the election based on these irregularities, how will that benefit society? Courts would therefore apply sociological considerations, given the circumstances, than apply legal considerations in arriving at certain decisions. Fine, Tanko’s appointment is irregular. His action is ultra vires; but what will happen to the judges he has appointed, I will rather leave to sociological considerations to determine.

Atiku prayer before the court is either that the election should be upturned and a rerun ordered; or the electoral umpire should declare him winner of the election. Which of these prayers looks more plausible given current circumstances?

The second option is a no-go-area for me. Ordering another election will mean more people will die. You will see the brutality of these people at the highest level. You will see desperation in demonstration. You will now appreciate that the lives of Nigerians are worth nothing. It is either they declare Atiku the winner or they should declare him loser. I don’t subscribe to cancellation of the election and a rerun. If there is another election I can assure you that Atiku will not get what he got the first time, because they will harass every other person that will be instrumental to his win. They might even find a way of liquidating him. They will use every instrument of coercion or the security architecture to deliver victory to Buahri; and the situation will become worse than what we saw before. So I would rather they summon the courage to declare Atiku the winner if evidence and the law points clearly that he won. If the contrary is the case, they should uphold Buhari’s election.

Assuming Atiku’s legal team has compelling evidence and sound delivery of legal arguments, do you think the court will ever be able to summon the courageous to declare Atiku winner of the election?

They should because if the court declares Atiku winner of the elction, Nigeria will suddenly become like heaven in a short while in terms of jubilation, in terms of celebration, in terms of economy. Everything will start looking up. That should encourage the courts to do the needful. Life will return to Nigeria. Yes, crisis might ensue, because you will have the terrorists who massively support Buhari to create problems, but the crisis will only be restricted to the north and before long it will fizzle off and sanity will be restored before long. A court in normal circumstance should be courageous enough to give fair and just ruling no matter whose ox is gored. And I have seen where this thing can work in a way that people will be taken aback. When you have a matter, it is not what you read on the pages of newspapers that matters, it is not the emotion of people that will determine what the judge will rule. It will be based purely on what the judge has before the court. Bringing what you have before the court involves other things including the strict substantive position of the law. You also have adjectival law that regulates evidence. Now if you have a very good piece of evidence but you could not bring it before the court, everybody knows that you have it but the court will not have the opportunity to evaluate it for the purposes of passing judgment. Now the challenge before the court lies in the ability to bring the evidence in a way that the judges will have the opportunity to evaluate it for its probative value. If you build your case so well, the fear that crisis will ensue if judgment is given against Buhari will not arise. But the judges make a pronouncement they cannot justify as the reason for upholding Buhari’s election, something can also happen. So, I still feel we cannot completely rule out the possibility of a unprecedented judgment that could send shock waves across the country.

A whole also depends on the counsels parties have appointed to prosecute their case. On the President’s side you have Chief Olanipekun. On Atiku’s side you have Chief Chris Uche and Dr. Livi Uzukwu. Placing these two on the legal scale, who has a more powerful team that will most likely sway the court?

Well, I think it is Buhari. I respect Olanipekun. He is very good team player when it comes to election petition. But my brother if your case is very bad, a good lawyer will lose. What you need is a good case, and an average lawyer will win. Even with the best lawyer, you can lose a bad case. I think for Atiku to have left these ones, and appointed his team as currently constituted, there must have been some basic considerations you and I are not privy to. He knew the process was going to end up in Election Tribunal. So don’t be surprised if he had his game all worked out.

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