Why Nigeria Must Boycott CHOGM Meet in Sri Lanka

By Boma Ozobia, Email: boma@spnglegal.com

05 Mar 2013

The 5th and Current Secretary General of the Commonwealth of Nations, Kamalesh Sharma is visiting Nigeria at about this time and as is this case with these visits, various matters of mutual concern will be tabled for discussion between the government of Nigeria and the visiting dignitary. I trust the current situation in Sri Lanka will be top of the agenda. Itrust also that the Secretary General will be urging Nigeria through its government to boycott the Commonwealth Heads of Government meeting (CHOGM) due to take place in November in Colombo, Sri Lanka except the Sri Lankan government retraces its steps and reinstates the Chief Justice of that Commonwealth nation immediately or in any case before the CHOGM.

We complain about impunity in this Country, but never in the history of Nigeria, even in the dark days of military dictatorship have we experienced what the good people of Sri Lanka are currently being subjected to, certainly, no government of Nigeria would attempt such a blatant and ‘in your face’ disregard for the rule of law.

Is this not an overreaction on my part I almost hear you ask? Not if you are privy to the same information as I am. As the popular Nigerian songstress Omawumi said, ‘The matter wey I see, e heavy for mouth’. Nonetheless, something has to be said, and done.

What is this matter? Well, the Chief Justice of Sri Lanka was ‘impeached’ in January for ‘misconduct’. What’s wrong with that I hear you say, after all, only last week or so, Justice Archibong was ‘removed’ for the same reason and it is about time we cleansed the Judiciary be it in Nigeria, Sri Lanka or anywhere else in the Commonwealth for that matter.

That may well be the case, but what would you say, if Justice Archibong had been the Chief Justice of Nigeria and in the course of his judicial duties, sitting with a full panel of his brother judges of the Supreme Court, they pronounced a judgment on a matter concerning the brother to the President, our very own Goodluck Jonathan. Let us then say that this judgment to put it mildly, did not go down well with the President and equally importantly, it was also not well received by the President’s senior brother, David Mark Goodluck (the Sri Lankan equivalent of our David Mark is the senior brother of the Sri Lankan President).

The same day the judgment is delivered, David Mark Goodluck and 117 of his fellow Senators vote for the Chief Justice to be tried for serious misconduct. The Chief Justice is then summoned to a closed hearing presided over by 7 serving Ministers of the Federal Republic of Nigeria who by virtue of their positions are members of the Federal Executive Council, appointed by President Goodluck, whose other brother is the dissatisfied litigant - recall his senior brother is the head of the legislative arm of government, thus the family and their political allies control two of the three arms of government. The Chief Justice is to be tried in accordance with rules laid down by the head of the same committee set up by parliament, made up of parliamentarians who having levelled the accusations against the Chief Justice, and who now sit in judgment to hear her defence behind closed doors. According to the rules, these doors will remain closed until a verdict of ‘guilty’ is reached.

It sounds like Tales by Moonlight, too preposterous to be true, but this is what has actually occurred in Sri Lanka. The Bar Human Rights Commission of England and Wales commissioned Geoffery Robertson QC, the First President of the UN Court in Sierra Leone after the civil war, and a member of the UN Internal Justice Council (the UN’s equivalent of the NJC) to investigate and report on this issue, I have read the report, all 66 pages of it and various other publications and reports and attempted to summarise the facts with the Justice Archibong analogy, employing poetic license. Space will not permit me to go into greater detail but this is effectively what has happened in a country that is a signatory to the Latimer House Principles adopted by these same Commonwealth Heads of Government in our own Abuja at the CHOGM which we hosted in 2003.

As a result of this deeply flawed process, where the allegation of misconduct against the CJ is effectively a judgment the legislative and executive arms of government were unhappy with, the Chief Justice has been ‘impeached’. Geoffery Robertson QC concluded “That the Chief Justice of Sri Lanka was innocent of the misconduct charges which brought about her removal from office last month, which was in reality a reprisal for her “careful and correct” decision in a case where she had ruled against the government. The report calls for the UK to subject the seven Sri Lankan cabinet ministers who convicted her, and 117 government MPs who signed a “false and fabricated” impeachment motion, to be refused entry visas and to have their bank accounts in Britain frozen. It wants Sri Lanka suspended from the Commonwealth, and urges the Queen not to attend the November Heads of Government meeting (CHOGM), scheduled for Colombo.”

Geoffery Robertson QC concludes in his report as follows:

“The denouement was as unseemly as the procedures used to bring it about. On 12 January, 2 days after receiving the “address” from his brother, the President summoned the remaining 10 Supreme Court judges to his office for a 90 minute meeting. It is not known what he said – the meeting was highly improper – although it seems that he asked them to pass on one threatening message to the Chief Justice, namely that if she resigned without further fuss, she could keep her full pension entitlements.

The Chief Justice, who appears to have behaved throughout with great dignity, remained with her family at her official residence. The following day she received a Presidential order removing her from office, and (in a despicably petty gesture) her security guards were withdrawn, while threatening demonstrators remained outside. On the next day, a holiday Monday, police ordered the Registrar to pack up all her belongings in her chambers, to make way for the next incumbent. A large phalanx of military police occupied the court building overnight and a riot squad (with water cannon) arrived the next morning along with a government rent-a-crowd who shouted slogans in praise of the new Chief Justice. He was Mohan Peiris, a man without judicial experience, who served as the legal advisor to the cabinet and Chairman of a bank and of an arms procurement firm established by Defence Secretary Rajapanske.

He was sworn in by the President and that afternoon took over the Chief Justice’s chambers whilst a large number of lawyers stood outside the court holding candles “to symbolise the onset of darkness”. Dr Bandaranayake was confined to her residence until her successor was installed in her former chambers, and then required to leave in her own car without speaking to the media or (as she had requested) being given an opportunity to thank her staff.

She did issue a dignified and moving statement, pointing out that the rule of law to which she had devoted her life had been shattered. She would not resign in order to save her pension, but she could not resist the power of the state to remove her physically from the Court.”

The Latimer House Principles states in relation to Judicial accountability as follows;
“(i) In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal.

Grounds for removal of a judge should be limited to:

(A) inability to perform judicial duties and

(B) serious misconduct.”

These principles were entirely ignored in the removal of Justice Bandaranayke.

We cannot ignore it and pretend it did not happen, if at all Nigeria is represented at the CHOGM in Sri Lanka it should be solely because we went there to deliver this message to President Rajapakse and family that, ‘this blatant disregard for the principles of separation of powers between the three arms of government and attack at the fundamental principles of
the rule of law must stop forthwith.’

There is a Yoruba saying which President Rajapakse and family will do well to heed, which roughly translated states that the whip with which the first wife was driven away is still in the broom cupboard and will be used in due course to mete out similar treatment to the second wife.

As we welcome the Secretary General of the Commonwealth to Nigeria, let us as a nation stand up for the Latimer House Principles which were adopted here in Nigeria in 2003 and unequivocally condemn the actions of the government of Sri Lanka.

Mrs. Ozobia is President, Commonwealth Lawyers Association