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Judicial appointments in Nigeria: The need to avoid American experience

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There is a crisis in judicial appointments in the United States of America currently. Antonin Scalia, a former Justice of the Supreme Court of the United States for more than three decades, acknowledged this fact in a speech he delivered at Doslisha Law School in Kyoto, Japan, in February 2003, which he aptly titled, “The crisis in Judicial Appointments.”

Reading through this article and bearing in mind the parallels between the American Constitution and its Nigerian Counterpart, it struck me that sooner or later, the same crisis will come calling in our shores, if it is not already here.

In America, appointments to the Supreme Court of America are made by the President subject to confirmation by the Senate.

In Nigeria, the variation is that the appointment is made by the President on the recommendation of the National Judicial Council (NJC). Except in the cases of Chief Justice of Nigeria, the President of Court of Appeal, a Justice of the Supreme Court and the Chief Judge of the Federal High Court, there is no recourse to the Senate.

In other words, a Court of Appeal Justice or a Federal High Court Judge recommended to the President for an appointment is duly appointed if the president accepts the recommendation. The next step is to swear him in. The same scenario plays out in the states. This apparently simple arrangement has created a crisis situation in America. An underlying factor or common denominator in each of the situations above is the involvement of the executive arm in the appointment of judicial officers.

Justice Antonin Scalia in the article under reference, captured in the book, “Scalia Speaks Reflections on Law, Faith and Life Well Lived” on pages 223 to 233, presented a graphic picture of that crisis. According to him, “In recent years however, the use or attempted use of the appointment power to affect judicial opinions has become common place – and it has not been limited to a single, temporarily prominent issue.”

The above is at the root of the crisis in judicial appointments in the United States. A major ramification of that crisis is according to Scalia, “the contentiousness of judicial appointments and the degree of prominence that this issue has come to possess in American politics.”

A classical evidence of this contentiousness can be seen during the confirmation hearings of the latest Supreme Court nominee, Brett Kavanaugh.

Our nation is yet to get to that point where appointments to judicial offices are mired in controversy. We may never get there because most of the appointments, except those of the Chief Justice of Nigeria, Justices of the Supreme Court, President of the Court of Appeal and the Chief Judge of the Federal High Court are undertaken by the President after recommendation by NJC without the involvement of the Senate. In other words, it is at the confirmation level that the controversies spring up. But this to my mind is wishful thinking.

In America, as Scalia pointed out in his article, the explanation of why “the appointment of judges has become a significant political issue is because courts have taken upon themselves the making of a vast number of decisions that are properly of a political rather than juridical nature.” There lies the catch 22.

Yes, the American experience may not fully be replicated here but I do not think that we are completely immune because we presently have a situation very close to it. As every lawyer will admit, election petitions are very political. That is largely why they generate a lot of tension and anxiety. They are fought with the same intensity as the elections themselves. They put the judges or judicial officers on the spot. With what we now know about election petitions and their determination, it will hardly surprise me or any keen observer, if sometime soon, the single most important issue in our election campaigns becomes, as presented in the USA, who will get to fill upcoming vacancies in the Supreme Court, Court of Appeal and in the various High Courts. Do you wonder why it will be so? It is simply because these positions have become important elements in our election calculus.

I endorse the remark of Antonin Scalia as he did in his book: “What an extraordinary phenomenon! How can it possibly be that in a functioning democracy, any one should think that the most important issue in a national election was the composition of the unelected judiciary? A body of men and women so individually obscure that polling data regularly finds the majority of citizens unable to name two members of the Supreme Court. And the branch of government that the framers of the Constitution thought to be the least dangerous becomes the most impotent – having (as a famous passage in the Federalist papers described it) neither force nor will but merely judgment.”

The above scenario is scary to me as a lawyer. It must also be scary for every person who appreciates the role of judges in a functioning democracy such as we aspire to build.

What will it look like when a judicial officer for that matter, is appointed for his political ideologies and not because of his all-round competence? Yes, it is true that there is a National Judicial Council to recommend to the President but this same Council is made up mostly of men and women who are also Judges and who, if this prediction comes true, would have been appointed on the same political considerations. In other words, the danger pointed above is still a threat.

The question is, how do we ensure that our Judges are insulated from situations that expose them to politics?
In addition to the above, does the present method of appointment of Judges not undermine the hallowed principle of separation of powers? If as the principle of separation of powers presumes, the three arms of government, namely the Legislature, the Executive and the Judiciary are to be unhindered in the exercise of their powers, does it make sense that one of these arms, this time the Judiciary, should owe its key appointments to one of the other two arms? The argument in favour of financial autonomy for the Judiciary has been canvassed and settled by the Courts. This time, the same argument can be employed to show that the independence of the Judiciary which is a cornerstone of the principle of separation of powers among the three arms of government is undermined by the provisions of the Constitution which vest in the Executive, the power to appoint judges. Is this not an affront to the principle of checks and balances which is an off shoot of the principle of separation of powers?

We therefore have potentially, two explosive situations in our hands. One refers to what happens when the appointment of judges is politicized. The other refers to what happens when the independence of the judiciary is undermined and compromised by the manner they are appointed. Each of the scenarios above is worrisome.

Duruiheoma, a Senior Advocate of Nigeria (SAN), was former Director General, National Population Commission (NPC).

With respect to the first scenario, that is, politicizing the appointment of judges, we should be alarmed and worried as Antonin Scalia revealed in the book earlier referred to. The second scenario is no less worrisome because the effect of a compromised and undermined judiciary will reverberate for a longtime.

This is therefore a clarion call for action.

What do we do?

I wish to proffer two solutions.

The first solution must deal with the way judges are appointed. It appears that we borrowed most of the American modes particularly as they deal with the appointment of federal judges. The American model has served them for so long and it is now graying. We must learn from their graying blues experience and adjust or change our own.

The British example is worthy of emulation for a number of reasons. The reasons range from the fact that the British model is a good example of separation of powers between the judiciary and the other two arms which are in fact, two rolled into one.

The second reason is that it accords with the common law which is an integral part of our body of laws.

In Britain, High Court Judges are appointed by the Queen on the advice of the Lord Chancellor.

Pursuant to the Constitutional Reform Act 2005, the Judicial Appointments Commission has removed the appointment of judges from the overtly political arena. The promotion of judges to higher courts is generally decided by the judiciary. However, in some cases in England, the Bar plays a role.

The independence of the judiciary will remain an empty declaration unless the appointment of judges and their advancement is taken away from key political actors.

Another solution to the present exposure of judges to political cases and politicians is to use retired judges to preside over election tribunals.

Retired judges with proven integrity will serve this role better. They have nothing to fear because they have nothing to lose.

Above all, and this is important, using retired judges will also solve the problem of litigants having to suffer very long terms of adjournment because the judges handling their cases are on election duty. The situation now has assumed an emergency nature.

In most jurisdictions all over the nation, the number of high courts sitting is less than 20 per cent of the whole. This is unacceptable and calls for urgent action.

This is another way of solving the problem.

Duruiheoma, a Senior Advocate of Nigeria (SAN), was former Director General, National Population Commission (NPC).


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