Discarding seniority in appointment of CJN amounts to ‘court packing’, says Ezike

As the end of the tenure of Justice Mahmud Mohammed as the Chief Justice of Nigeria (CJN) draws closer, there have been insinuations that the president may discard the long held tradition of appointing successors on the basis of seniority. In this interview by BERTRAM NWANNEKANMA, a Lagos based constitutional lawyer, James Ezike expressed his view on the issue. He also spoke on the restructuring debates and other topical issues such as the publication of names of looters.

Do you think that appointment of the chief justice of Nigeria on the basis of seniority should be changed?
Well, I am hearing rumours of change in the system. Unfortunately, again, I blamed the judiciary for their problems. In the first place, being appointed a judge of the highest court anywhere in the world is a very serious matter. In the past, a system was developed where it was based on merit, suddenly, they changed it and everything now is done on seniority.

If they want to change, it should be a matter that should be openly discussed and not a conspiracy. Doing it before by seniority was a conspiracy, stopping it now by conspiracy will be worse. If that is done, then what we will end up having will be a “packed court”. Nothing can be worse than a packed court. So they should continue until we have a policy where like in the United States, when our best brains graduate from the university, they will begin clerking for judges and over the years, they become judges themselves.

You read their judgments and are impressed and when they are nominated, they are examined based on what they produced. In the case of Nigeria, judges go to the National Assembly and they are simply told to bow. Nobody look at the quality of judgment they have given. So if they change this system surreptitiously, then they are trying to “pack the courts”.

Are you then suggesting that the office of the Attorney general should be separated from the office of Minister of justice?
The AGF in the USA is a powerful person very powerful and it is not separated, though they don’t have anything called ministers in USA. They have a different expression; they are members of the executive but the AGF does the job. In the United Kingdom, the job of the AGF is not really flamboyant because they have a very strong judiciary, strong intelligence service, very strong police and a very strong foreign service. If you know what Foreign Service means, it is a not just external affair that is where all the intelligence is done. So with it, it is not necessary to emphasis on the importance of the AGF.

If we had a democracy, the organ of government to be feared is the legislature not the executive. I don’t fear the executive; they can only abuse their office. They can never use it properly for anybody to be frightened of them. It is the executive that should be afraid, whether it is the governor or the president. Unfortunately in Nigeria, the only thing they understood is clowning, that is where we have the best clowns they have anywhere in the world. The legislature is where the centre of power is or should be.

Do you then support the call for  restructuring  of Nigeria?
Over the years, I have asked for restructuring, Now I, think, it is rather too late.

Why too late?
So many things have happened. Nigeria is heading for the rock and you cannot force it. You cannot force history. So many people had tried to force history but failed. I will be the happiest person in the world if they will restructure it but they will not. I can guarantee it. They will not because they don’t understand what is going to happen next. It may not be today or tomorrow but Nigeria is heading for the rock. People are thinking of what they will get out of the system. So they did not see where we are going.

How can you have a country with two systems of law? A country where you have sharia one side and at the other side without sharia? Somebody has written a book and said look at where you are going, nobody wants to see it. We are talking about how to get contracts, how to get money, how to steal money that is what we are talking about. How can a country like that survive? Nobody matter how good you are at imagining, could have imagined Boko Haram emegence. I never heard of IPOB until everybody started hearing about it.

Now they are hearing of Avengers and Buhari does not look to me like the kind of man who can lead us out of this trouble. He does not look like that type of person. I know him, but it is a pity. The future of this country is in the hands of the young people. We need a young man, a man, who should be in his 40s not 50s, highly educated and knowledgeable.

We are already in democracy, how can we get this done?
Well, we are not in a democracy. If we are in a democracy, so many people, who are knowledgeable should have been in politics. Is this a democracy? A democracy where Alex Ekwueme formed a political party and was about to be nominated presidential candidate of his party, when some people conspired, went to the prison freed Obasanjo, enabled him and thwarted it. A democracy, where Buhari overthrew Shagari, which was treason, but he is accusing Nnamdi Kanu of treasonable felony, which is a smaller thing.

He overthrew Shagari from his region and granted interview to Concord Newspapers in the front page that Shagari was innocent, that the corrupt one was Alex Ekwueme. Yet several governors were tried and convicted, Ekwueme was never even arraigned. Ekwueme asked him to apologise to him. He would not do it. This is in spite of the fact that a judicial enquiry found out that Ekwueme lost financially by going into politics and never gained. Is it not a country that is heading to the rock? Is it not? And you are talking about democracy.

A democracy, in which Babangida administration formed parties and put this one to the left and the other to the right? A democracy that you have to register a political party! Why should political parties be registered? Once you register political party, it will no longer be free. A democracy that tells you that you must have offices in this and that! A democracy that tells you that political party shall not be regional. Was ACN not regional? Was CPC not regional? Why are we fooling ourselves? But you did it and in other words, the foundation of your so-called democracy is dead and finally what are we practicing now? We are practicing a military dictatorship. The soldiers go to the street and remove some newspapers in the southeast. Soldiers not even policemen had the power to do that without any court order. So you have soldiers everywhere. Is it a conquest? So that is why I told you that we are heading for the rock because the thing about human affairs is that nobody can control it, if things are not done properly.

Is there any legal implication for the publication of names of looters?
We do not run a democracy in this country. If we ran a democracy, it is none of the business of the President whether anybody stole money or did not. It is the responsibility of the Attorney General. Once the president gets involve as a politician in matters like that, it will be politicized anywhere in the world. The Attorney General does not know his job and he is not the only one. The last Attorney General, we had, was Richard Akinjide, though he was still trying to please the executive. In the final analysis, we had never had Attorney General.

An Attorney General should not allow the EFCC to do what they like or the president to do what he likes. So what is the business of the presidency in releasing the names of people, who they got money from or whatever it is? Anything that has to do with criminality or legality is the responsibility of the Attorney General or the prosecutor. So this is my take on this. The other day, I saw an interview where former president of the court of Appeal was advising the president to seek the advise of the attorney general or that of the chief justice. With due respect, they are not his lawyers. The president must have a lawyer, who attends to him personally not the attorney general.

Attorney General is our lawyer; the Attorney General can arrest him. Have we forgotten that it was the office of the attorney general of the United States of America, Janet Reno that started the Monica Lewinsky’s case even though the attorney general was very personally close to him and Clinton did not know? Have we forgotten that? The Attorney General is not the adviser to the president. The President should fear the Attorney General because he is more powerful than the president but because of abuses and corruption, it is not so.

How possible is that, in a case where the attorney–general is an appointee of the president?
The executive appoints the judges. Is it not? Good, but it is not the responsibility of judges to kowtow to the president, they have no business with him. I remembered when we were doing the election petition in 2003 and midway through that, members of the panel, who were members of the court of appeal went with a senior lawyer to see the president and no Nigerian newspaper publish the scandal and the president of court of appeal explained that it was because they were building the court of appeal; that they need money from the executive.

That is a ridiculous and embarrassing statement to say. The time you are presiding over a case involving the president is the time that you now have to be led to him to beg. They don’t need to beg. The judiciary is not subject to anybody. The judiciary does not have to kowtow to the president or to the legislature. It is a general problem because we had so many dictatorships that everybody thinks the strongest arm of government is the executive, they may actually be the most flamboyant but they are not. Actually, it is the national assembly that is the most powerful.