This is undoubtedly a trying period for the legal profession in Nigeria; the heads of the Bench and the Bar are being alleged to have committed financial offences, in a country where corruption is viewed as the number one enemy of the State and the bane of its development.
Let me state unequivocally that I am personally unhappy to see how the events are unfolding, and it is my strong conviction that no member of the noble profession should be happy to see this unfortunate development.
However, since virtually all contributors so far to the ensuing debate, particularly members of academia, have chosen to address the issue from the Common Law perspectives, I have decided to add value to the on-going discussion by approaching the matter largely from the viewpoint of my most familiar terrain; the Islamic Law perspective.
One way to resolve the knotty issue of whether or not the Hon. Chief Justice of Nigeria can be charged to, and tried before, the Code of Conduct Tribunal is to explore the Shariah technique of “Tanqih al-Manaat” applicable whenever there is a conflict of capacities.
The locus classicus on this is the celebrated case of Hind the wife of Abu Sufyaan who successfully lodged a complaint against her husband’s miserly disposition, and got a verdict from the Prophet (Salla Allahu alayhi wa sallam) thus: “Take of your husband’s property what is sufficient for your needs and those of your children”.
Muslim jurists have since argued on whether this pronouncement by the Prophet was and should be treated as a court order or a verdict from a mufti (a juris-consult)? Because he (the Prophet) was both a judge and a mufti and actually acted in both capacities, sometimes simultaneously.
Under Islamic law, many dissimilarities exist between a court order and a mufti’s verdict even though the two may ostensibly look analogous, particularly considering the fact that the source of both in this case is divine and plenipotentiary: a Prophet of Allah.
For instance, while a court order binds all parties to a litigation and parties alone, the effect of a fatwah is unlimited, neither in terms of persons nor in terms of time.
It is equally settled under this law that whenever a judge makes a pronouncement affecting a matter of ibaadah stricto sensu, his pronouncement even though made in his capacity as a judge shall be deemed to be a fatwah and not a judgment.
Applying the above principle to the case under review, it is clear that the man in the eye of the storm has two capacities: he is a judicial officer and also a public officer, but yet he is one person: Hon. Justice Walter N. Onnoghen, CJN.
Two questions are pertinent to raise in this circumstance: Does the Hon. CJN’s duty to declare his asset arise from his being a judicial officer or from being a public officer?
The other questions is: the man standing trial before CCT in what capacity is he being dragged to the tribunal? As the Chief Justice of Nigeria, as a public officer or as both? In my opinion, the two capacities are interwoven.
The CJN has a duty to declare his asset because he is a public officer, but lest we forget, he actually became a public officer on the strength of being a judicial officer, and this is where the Shariah-devised instrument of tanqih al-manaat becomes handy.
Through what is known as a process of isolating probable effective causes of an event, one can safely argue that the overriding reason why the Hon. CJN is being charged before the tribunal is because he is a public officer and not because he is a judicial officer.
And this explains why non-judicial officers are also tried by the same tribunal in their respective capacities as public officers, the Hon CJN’s trial, being a public officer and fifth in the hierarchy, should therefore not be an exception.
After all, not quite long ago the number three citizen and the President of the Senate of the Federal Republic of Nigeria was also tried by the same tribunal. What is more, Para 5, Part II of the Fifth Schedule to the 1999 Constitution categorically mentioned the CJN as a public officer “for the purposes of the Code of Conduct” (Emphasis mine).
The underpinning principle in this case is therefore to recognize the fact that while all judicial officers are public officers, not all public officers are judicial officers; that the Hon. CJN is a public officer because he is a judicial officer, but not a judicial officer because he is a public officer, and the only court with an exclusive jurisdiction to try public officers “for the purposes of the Code of Conduct” is CCT as expressly provided for in our Constitution.
Going by the word and spirit of our grundnum, the Constitution, the proper thing as envisaged therein is for public officers to be exclusively tried first by the CCT in matters of non-compliance with the Code of Conduct, after which relevant laws applying to them in their various capacities can then take effect.
Anything different from this order will amount to putting the cart before the horse, or even worse still may qualify as a device to deprive the CCT of its constitutionally guaranteed jurisdiction. For instance, with due respect to those calling for the CJN to be investigated/tried first by NJC, what of if NJC finds the CJN indictable and subsequently recommends his removal from office, what justification is left for the CCT to exercise jurisdiction over someone who has ceased to be a public officer?
The call may also, in my humble opinion, be tantamount to inventing a back door immunity from criminal prosecution for the CJN without any constitutional backing.
Let the CCT exercise its jurisdiction in this matter as its affects a public officer, in this case the Hon. CJN, and thereafter the NJC to weigh its options to either remove or keep as its head someone that has been tried and indicted or discharged and acquitted, as the case may be.
This appears to be more in tandem with the law, sound reasoning and morality.
By Prof. A. A. Alaro, Faculty of Law, University of Ilorin, Ilorin.