Bloomberg news outfit based in the US says Nigerians are faced with a ‘brutal choice’ come February 16, 2019. The medium described the polls as a choice between “a dictator and an alleged kleptocrat”. In this exclusive interview with a renowned public affairs commentator and legal practitioner Barrister Mainasara kogo Umar, WikkiTimes’ Haruna Mohammed Salisu tries to find an answer.
WikkiTimes: Barrister Mainasara, you are popular commentator in Nigeria, President Muhammadu Buhari has suspended Justice Walter Onnoghen and appointed an acting CJN. You were recentl quoted as saying that the President has acted rightly despite condemnation and protests from the NBA, what do you know regarding the country’s legal system that other lawyers don’t know?
Barrister Mainasara: Well it is not a question of personal knowledge. We analyze issues base on the provision of the law; you need to analyze the matter holistically. The issue of the suspension saga of the Chief Justice of the federation has to be clearly understood. We need to know that the chief justice of the Federation is somebody who is wearing two gowns; the first gown is that he is the Chief law officer of the Federation, and the second position is that he is a public officer. So, there are a lot of distinctions between a judicial officer and an ordinary public officer and the law in Nigeria says two things: if you are a judicial officer you are to be handled base on the offenses regarding the oath of office as a judge by the national judicial council of Nigeria, if you are a public officer on the other side, you are to be tried by the Court of Conduct Tribunal, in other words you are to be investigated by the Court of Conduct Bureau. For example, if you take part of the constitution of the Federal Republic of Nigeria, under the third schedule, precisely sections 1-4; there are lists of public officers to be subject of Court of Conduct Bureau, and you will notice that the first person on the list is the President Federal Republic of Nigeria, and the second person is the Vice President. The third names are that of the Senate President and the Speaker of the House of Reps, and the fourth are governors and their deputies and then the fifth one is the CJN and justices of the Supreme Court. So if you take that into cognizance, you will discover that already, the constitution has made the CJN a subject of the CCT, not a subject under the NJC. People are interchanging these two, if you don’t understand the distinctions between the two, then you will be making mistakes. Then the second thing is that the same Chief Justice of the Federation of Nigeria led a three men committee to probe Senate President Bukola Saraki, when he was facing accusations under the CCT, since he is also a subject based on the provisions I earlier quoted earlier. The CJN said the Senate President as the number three must go there and face his trial, it was an appeal from the Court of Appeal which emanated from the federal high court on a jurisdiction which decided that The Senate President should go and face the trial there, So if number three man will face the trial, how about number five man? That is one thing, and the second thing regarding what I said is that the President should not be blame, he was given a directive by virtue of an ex-parte order that he should comply with the order by suspending the Chief Justice of the Federation. So the President only complied with an order. Again, section1 8 sub section 1 of the constitution under the fifth schedule for example, there is what is call the powers of the Court of Conduct Tribunal; under those powers, all the inherent powers are listed there, at the same time if you take the position of the law regarding section 18 sub section 2, those judgment that should be given have been specified under which it I said that somebody can be asked to vacate his seat, somebody can be asked to forfeit all his assets and investment that are being alleged to have been acquired illegally or somebody will be asked to revert from holding public office for up to a maximum of say ten years you understand. The constitution has made it clear, then the constitution clearly made a number of things; like, under part one of the fifth schedule, the constitution itemize a number of offenses that are to be seen as offenses against the law base on Court of Conduct, and number eleven on the list is the declaration assets whether you do it wrongly or whether you deny mentioning certain things or whether you do anticipate declaration or whatever it is stated there.
WikkiTimes :Let me draw you back, a lot of lawyers some of them with International accolade said the President acted wrongly, are they ignorant of this sub sections that you are quoting ?
Barrister Mainasara: Essentially, most of the lawyers are confusing suspension from removal and that is why they talk about section the provision of section 292. The section is talking about removal of the CJN or a judge of the Supreme Court. Under that it is the National Judicial Council that will recommend to the President, or the President on his own can even initiate and write to National Assembly, precisely to the senate and 2/3 of the members of the senate have to agree for him to be removed. But what happened on the case of Onnoghen is suspension not removal which was sequel to court order. The same section 292 also gives the President the powers to appoint someone in an acting capacity in the event vacancy exists. I don’t believe I have monopoly of knowledge over anybody and I don’t believe that am better than anybody. I’m only telling you what I know. The law is a boundless ocean of legal provisions it depends on the angle they are looking at it.
And one other thing people should remember is that these things about Onnoghen was written by someone over one year ago, and the same person also wrote against the President himself on some alleged misdemeanors, until he was cleared.
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WikkiTime: Do you think these differences in interpretations among lawyers could be linked to their political leanings or whom they are sympathetic to?
Barrister Mainasara: There are so many factors that could influence individual interpretations of the law. For example, the degree of commitment to one’s profession, someone like me take my practice as a call to service by God. I’m not better than anybody by knowledge or physique or whatever, God decided to give me this knowledge so that I can become his ambassador on earth and ensures that justice prevail. So if you look at it as an instrument of ensuring that justice prevails on the land, fine and good, if you decided that the legal certificate is a means for you to acquire wealth, then that is your own cup of tea.
WikkiTimes: Are you conceding that since the law is subject to many interpretations you might also be wrong, is that what you are saying?
Barrister Mainasara: No. My own type of analyses is different from many other people; I cannot pronounce what I cannot support with the provisions of the law. That is the reason I am given you references, in every sentence I pronounce I give a correspondent position of the law, do you understand? So I’m only saying that the President acted based on court ruling , the order given to him by the Court of conduct Tribunal and the provisions of the various sections I made reference with, the President can suspend and appoint someone in an acting capacity. So in that context refusing to act by the order of the court is also an illegality on its own.
WikkiTimes : Some of the President’s critics are saying, he cherry picked which court orders he obeys, for example there are lot of court orders that the President ought to have abide by or ought to have implemented and up to now the President seems to have defied those orders?
Barrister Mainasara: While, I am not the Attorney-General of the Federation. But I believe I can offer some explanation on that. You see all those orders you are talking about bordered on fundamental rights base on the constitutional provisions. And under the fundamental rights, you will discover that there are provisions from section 33 of the constitution up to section 44 of the constitution that offer many explanations regarding fundamental rights. Now these provisions; such as Freedom of Expression , Freedom in respect of litigations, Freedom of Movement, Freedom of Association, Freedom of the Press etc there are provisions that are considered lacunas to these ones. Section 45 of the constitution says that all these fundamental rights can be jettison, in other words, all these fundamental rights can be denied, where granting such rights will be inimical to public health, to public security, to public order and many other things. So, where such rights mention have not been granted on the ground of these reasons mentioned in section 45, then under section 46 it said that you can seek for redress regarding these rights in any of the Federal high court that is having jurisdiction to try those offenses; so I do not know under what reason the government decline to obey the various interlocutory orders of the courts, that should be answered appropriately by the governmental officers that know the reason why the government did not respect such orders.
…to be continued
