Godwin Tsa, Abuja
Constitutional lawyer and human rights activist, Chief Mike Ozekhome, has clarified his position on the removal of former governor of the Central Bank of Nigeria (CBN), Sanusi Lamido, saying the situation was not the same with the suspension of the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen by President Muhammadu Buhari.
Ozekhome stated that contrary to insinuations from some quarters that he had thrown his weight behind the removal of Sanusi Lamido as CBN governor by former President Goodluck Jonathan, “there is no equivalent section under the CCB/CCT Act, permitting the president to capriciously and whimsically hire and fire the CJN as he wishes, as he could do under the CBN Act.”
He submitted that it was wrong to equate the suspension of Justice Onnoghen to that of the the former president of the Court of Appeal Judge, Ayo Salami as doing so would amount to standing the constitution on its head.
In a statement entitled, “The Case of Onnoghen and Emir Sanusi: Never two of a kind,” Ozekhome said: “My attention has just been drawn to my statement made in 2014, currently, flying about in the social media.
“It is to the effect that I am now contradicting myself from my earlier stand that the then President, GEJ, could suspend the then governor of CBN, now Emir Sanusi, by invoking Section 11 of the Interpretation Act, on the grounds that he who can hire can also fire and also suspend. I perfectly stand by that statement. I also hereby affirm my present informed argument and my present stance, as both the Onnoghen and Salami’s cases are not in any way related at all. My 2014 argument related to the interpretation of the constitution and the CBN Act, under which the president can hire and fire as he wishes, subject to the Senate’s approval. He could therefore also suspend, going by the interpretation act. There is no equivalent section under the CCB/CCT Act, permitting the President to capriciously and whimsically hire and fire the CJN as he wishes, as he could do under the CBN Act.
“Whereas appointment of the CBN governor under the CBN Act involves only the president and Senate, (President nominates and Senate confirms by 2/3 majority), Sections 153, 158, 3rd Schedule (parts 1 & 2), Sections 291 and 292 of the Constitution were NOT in issue then. They are now. The sections of the CBN Act only relates to the president’s power to hire, or fire (and suspend under the Interpretation Act), the CBN governor. Oil and water do not mix. So, I stand by that my 2014 argument as regards the then CBN governor. However, under the Constitution, the CJN, like President of the Court of Appeal, High Courts and Federal High Court, Chief Judges, Grand Khadis and President of the Customary Court, enjoy a special space in our constitutional organogram. For them to be hired or fired, the entire three arms of government are involved under Sections 4, 5 and 6 of the Constitution, in sync with the famous doctrine of separation of powers, ably propounded in 1748 by the great French philosopher, Baron de Montesquieu.
Unlike under the CBN Act (under which Sanusi’s case came up), the NJC in the Onnoghen saga must first recommend; the Senate must first approve before the president can then hire or fire. Were the present issues based alone on a mere Act such as the CBN Act, then PMB would have had the power to also suspend. Unlike under the CBN Act, the three arms of government must be involved in the case of the CJN. They have not, in this instance, which is the kernel of my present stance. But, even the CCT ex parte order PMB purportedly relied upon, didn’t permit him to suspend Onnoghen. The order directs Onnoghen to “step aside.” Has he stepped aside? No. Has Senate ever met at any time to decide to remove or suspend Onnoghen by 2/3 majority votes? No. Can the president appoint an acting CJN to a position that is not vacant since the incumbent has not stepped aside? No. So, a CCT that had, by itself, adjourned proceedings to 28th January, 2019, for argument on the issue of jurisdiction, suddenly remembered that there existed a motion ex parte somewhere in its files, dusted it up and issued an ex parte order based on it, at a time the issue of jurisdiction was already pending before it, and after it was adjourned for hearing by the very CCT itself. The only jurisdiction a court or tribunal whose jurisdiction has been duly challenged possesses is jurisdiction to determine whether or not it has jurisdiction. Nothing more. It cannot make more or further orders on the substance of the case as erroneously done by the CCB. The ex parte order, therefore, cannot stand in law. All these issues never occurred in the Sanusi case at all. There were no court proceedings to be interpreted; no court order; no jurisdictional issues raised; and no three arms of government involved. So, the two scenarios are worlds apart.”
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