ONNOGHEN’S CASE; PROF. SAGAY GOT IT WRONG:

The views expressed by Prof. Sagay on this matter is in the public domain. In disagreement with those views, the following opinion is herein expressed.

The CJN is specifically a judicial officer and a public officer in general. If he breaches his oath of office contained in the 7th Schedule, which includes compliance with the 5th Schedule of the Constitution dealing with declaration of assets, he is guilty of misconduct as a judicial officer. No question about that. In which case, he ought to face NJC first before being tried by any other body. By the powers vested in NJC by the 3rd Schedule, it can deal with all matters relating to broad issues of policy and administration. NJC ,has pursuant to its powers, made very elaborate rules to deal with all sorts of misconduct by judicial officers. CJN cannot be an exception to those rules as he is a judicial officer.

Such matters include compliance with extant laws, code of conduct of judicial officers and matters bothering on administration of justice. However, non-related crime is excluded. A non related crime is one that does not flow from the occupation of office as CJN. For example, murder, arson etc. Unequivocally, the duty to declare asset as CJN flows from occupation of that office. A good question to ask at this stage is whether Hon. Justice Onnoghen would have been ordinarily required to declare his assets, if he did not occupy the office of CJN or that of a Supreme Court judge? The answer in my view is no. The argument that asset declaration is for all public officers and that it is therefore unnecessary for NJC to wade into it, is illogical and ought to be rejected.

The provisions of the 3rd and 5th Schedules of the Constitution are not in conflict. There is nothing in the 5th Schedule which precludes NJC from lodging a complaint of breach of the code of conduct against a judicial officer to the Code of Conduct Bureau. The provisions of the said two Schedules of the Constitution under reference ought to be read together and not in isolation of each other. This is necessary as a breach of the code of conduct is also a judicial misconduct. Whether the allegation against a judicial officer is one of bribery or failure to abide by the oath of office, it is within the competence of NJC. No rocket science is needed to appreciate this.

It has been suggested that if NJC were to dismiss a judicial officer for misconduct, the officer ceases to be a public officer and cannot be prosecuted for breach of code of conduct applicable to public officers. This is most misconceived. The material period in the application of statutes for purposes of imposing sanction for such breaches is the period when the infraction occurred. If the offender was in public service when he committed the breach, then subsequent dismissal from service cannot preclude him from facing trial before the code of conduct for such breach. Certain misconduct can attract both a trial for breach of the code of conduct before the Tribunal and dismissal in accordance with due process. Why are the likes of Dasuki and other former officers still standing trial on allegations of corruption? Are they still in public service?

Prof. Sagay is entitled to his opinion, but on this occasion, the one he rendered appears patronizing and cannot be the correct position of the law in view of existing judicial decisions of courts of superior records in similar matters.

Dr. Ehiogie West-Idahosa.