Reforming Supreme Court’s Bench – New Telegraph

By Corruption Buzz On Sep 26, 2022

‘NJC’s appointment policy fuelling mediocrity on the Bench’

FRANCIS IWUCHUKWU writes that lawyers have thrown their weights behind the recent call by the Body of Senior Advocates of Nigeria (BoSAN) for the jettisioning of the old system of appointing judges to the Supreme Court’s Bench

Some senior lawyers have expressed deep concerns over the ‘lopsided’ policy of judges’ appointment to the Supreme Court Bench. The lawyers while baring their minds on the issue at the weekend queried the rational behind the appointment policy, saying it is unmeritorious.

The lawyers spoke amidst similar concerns raised by the Body of Senior Advocates of Nigeria (BoSAN).

The silks’ Body had requested the National Judicial Council (NJC) to do away with the current replacement policy for the Nigerian Judiciary to grow alongside the rule of law and dispensation of justice. Speaking at a Valedictory Court Service for retired Justice Abdu Aboki of the Supreme Court in Abuja, BoSAN, through Chief Onomigbo Okpoko (SAN), also asked the NJC to jettison the system whereby Justices of the Supreme Court must be promoted from the Court of Appeal.

While insisting that the system is responsible for the level of mediocrity and incompetence in the judiciary, Okpoko said: “The Body of Senior Advocates takes the firm view that the selection and appointment of Justices for appointment to the Supreme Court and the Court of Appeal based on replacement is one that cannot result in the appointment of the best lawyers into the appellate Courts in the country.

“Our submission to the appointing authorities is that the policy of replacement of retiring Justices from their place of origin is not sound and should be discarded.

“The National Judicial Council as the appointing authority should address this issue and appoint the best candidates of our country to man our courts. After all, justice is blind and so does not look at or see the faces of litigants.

“Justice knows no tribe and has no colour or religion. It has no specified location because it is everywhere. Let no one put on the Nigerian Judiciary the ironclad case of restricting the appointment of our Justices in the manner complained of”.

BoSAN also urged the NJC to expand the appointment to include the Bar and academia, as there are well-qualified persons in that area. It alleges that the appointment process appears to have been designed and operated to exclude good and competent lawyers in the legal profession from being appointed as Justices of Appellate Courts.

“There are two aspects of this restrictive policy by the appointing authorities. The first is that the appointing authority appears to have established a policy that the vacancies created by the exit of Justices of the Supreme Court or the Court of Appeal are to be filled by picking a candidate from the state of the vacating Justice only, notwithstanding the availability of known better candidates readily at hand from other states or local government areas in case of judges at trial courts.

“The consequence of this policy is that by it, our nation, our citizens, foreign and local businessmen/ women who use and or are expected to resort to the courts of law for the resolution of their problems in Nigeria are denied the opportunity of having their cases considered and decided by Appellate Courts manned by the best legal minds the nation can produce at any time. This is a very sad reflection on our nation and the nation’s judiciary”, BoSAN added.

FG’s recruitment plan

The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), had assured that the Federal Government would collaborate with the Judiciary to ensure the appointment of new Justices into the Supreme Court Bench.

Malami, while speaking during Justice Aboki’s valedictory court session revealed that the appointments would be done in anticipation of the expected surge in the number of cases that will arise from the general election. Malami said: “The past five months witnessed a steady reduction in the number of Justices of the Supreme Court.

“With the successive exits of my lords, Hon. Justice Mary Ukaego Peter-Odili, Hon. Justice (Dr) Ibrahim Tanko Muhammad, and now, the distinguished Hon. Justice Abdu Aboki, the apex court has almost returned to its pre-2020 numerical strength, with just 13 Justices, as against the required 21 under the 1999 Constitution of the Federal Republic of Nigeria.

“We would work with the Judiciary to ensure that these vacancies are filled as soon as practicable, in anticipation of the expected surge in numbers of cases as we approach an election year”.

Ex-CJN’s defence of NJC’s policy

Explaining the rationale behind the existing policy of recruiting Supreme Court Justices, a former Chief Justice of Nigeria, Mohammed Uwais, said: “I belong to the old school. It was during my time as CJN that we said no, Senior Advocates of Nigeria, who want to come to the Bench should start from the level of the High Court or at best at the level of the Court of Appeal.

That was the policy when I was a member of the National Judicial Council (NJC) and I still remain with that view. “Part of the problem is not just the ability of the judge you want. There is the issue of integrity. If you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where whether you are a corrupt person would have been discovered.

“From your judgements also, the Court of Appeal would have known how good you are if you are at the High Court. But if you are a legal practitioner, you haven’t written any judgement. So, there is no way you can be assessed in that respect.

“Again, you are not under the supervision of anybody when it comes to integrity and those are the two points why we felt, anybody who is at the Bar who wants to go to the Supreme Court Bench should start from the lower Bench”.

CJN’s concern

The Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, has equally expressed his concern over the depletion of number of judges on the Supreme Court’s Bench, saying it’s a big burden to the apex court.

The CJN spoke at the valedictory ceremony for Justice Aboki, who retired from the Supreme Court on August 5, 2022, after clocking the mandatory retirement age of 70. He said: “His lordship’s exit from our fold has drastically depleted our ranks and opened a yawning gap that will hardly be filled”. In recalling that the number of Justices plummeted from 17 at the dawn of 2022, the CJN lamented that “a single drop in the number of Justices here brings about a sudden increase in our workload”.

Constitutional provisions for judges’ appointment

Section 231 of the 1999 Constitution (as amended) stipulates thus: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.

“The appointment of a person to the office of Justice of the Supreme Court shall be made by the President on the National Judicial Council subject to confirmation of such appointment by the Senate.

“A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.

“If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.

“Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed”.

Lawyers speak

In his submissions, a former President of the Nigerian Bar Association (NBA), O. C. J. Okocha (SAN), noted that lawyers who were appointed directly to the Supreme Court Bench in the past have performed creditably well. He consequently queried the rationale behind the Supreme Court’s decision to put a stop to the practice of appointing lawyers in private practice and state chief judges to the Supreme Court.

Okocha said: “In the past, people like Teslim Elias who had never been a judge was moved from being a Dean of Law at the University of Lagos to become the CJN and thereafter, he went to the International Court of Justice at the Hague.

“People like Oputa, people like Kayode Esho, they were Chief judges of Western Region and Imo State respectively. They were moved straight to the Supreme Court”. A Senior Advocate of Nigeria (SAN), Chief Benbella Anachebe, spoke on the need to ensure that the best brains should find their way to the Supreme Court.

Anachebe said: “So, what we want is the best. The idea of dominance, tribalism, nepotism and other things should not apply to such sensitive positions as appointment into the Supreme Court Bench where policy decisions are supposed to be churned out.

“What we have today is a deliberate policy that a section of the country dominate in all spheres of life in governance.

That is the greatest error of the Buhari’s regime where nepotism and religious considerations have been elevated”. Anachebe was echoed by another silk, Chief Gboyega Awomolo, who also demanded a departure from the old system of appointing judges into the Supreme Court Bench.

“We have been agitating, urg- ing that the appointment into the Supreme Court should not be restricted to Justices of the Court of Appeal and that other qualified Nigerians in the academia and private legal practice be considered. “Unfortunately, in the current exercise going on, Justice Tanko (now retired) administration restricted the recommendation again to Justices at the Court of Appeal.

Appointment into the Supreme Court now depends on the CJN who is the chairman of the NJC and the general thinking of the members of the NJC. “However, I do not want to bother myself with the number of Justices from each region. I want the appointment to the Supreme Court to be simply on merit.

Emphasising federal character will amount to compromising standards and that has been the major complaint of the NBA. When you start looking for federal character compliance, you are more or less compromising the principle of meritocracy”, Awomolo said.

On his part, a Professor of Law and former Dean of Law Faculty, Lagos State University, Mike Ikhariale, noted that, “There is no denying the embarrassing fact that the Nigerian Judiciary is currently on trial in the court of public opinion because of the controversies that have trailed some of the incongruous and logically reprehensible decisions that the apex court and courts below it have delivered in recent times.

“All decent societies hold their judges in the highest possible esteem, almost as if they are demigods. The corollary of that extremely high societal regard is that they are expected to be incorruptible, beyond reproach and decently comported, capped with intellectual acuity.

“That certainly explains the usual deep sense of shock and disappointment by members of the society whenever a judge is found wanting either by manifesting awful jurisprudential incompetence or indulging in disgraceful misconducts such as bribery and corruption”.

Ikhariale blamed the present controversial situation of promoting Justices of the Court of Appeal to the apex court’s bench on “the self-serving and nepotistic empire-building instincts of those charged with the sacred responsibility of nominating Justices into the Supreme Court that have incestuously cornered it in favour of those already holding judicial appointments as if it were a vocational cult or a secret society”.

“That institutionalised aberration has unwittingly denied the nation the services of some of her best legal minds while at the same time promoting a myopic and mediocre judicial outlook”, he further posited.

The President of the Centre for Socio-Legal Studies (CSS), Prof. Yemi Akinseye-George (SAN), noted with dismay that even though judicial appointments under the Constitution are reserved for legal practitioners of verifiable integrity with no restrictions whatsoever as to their areas of legal practice, no lawyer was directly appointed to the Supreme Court as it happened in the past to make for a plurality of views. Akinseye-George said: “For me, I think we need to make the Supreme Court more plural. We need to have at least an academic or two because the way academics think is different from the way judges think.

“So if you bring in a few academics, that will spice up the court and they will kind of bring in the outside-the-box thinking unlike now when we rarely find dissent and dissent is necessary for the orderly development of the law. “We hardly find dissenting opinions at the Supreme Court these days. It wasn’t so in the past.

A situation in which every Justice will be agreeing at all times is not okay for the proper development of the law.

“In a court of 21 Justices, we can concede maybe 75 percent to judges, while the remaining 25 percent can be conceded to senior lawyers and academics who have never been judges so that we can spice up the court”.