Nomination of lawyers for Supreme Court bench stokes controversy
Section 231 subsection (3) of the 1999 Constitution as amended distinctly states: “A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.”
The above provision opened up the window for any legal practitioner who has practised for not less than 15 years to be appointed as a Justice of the apex court. And that is exactly what the proponents of the argument for the appointment of members of the Bar straight into the Supreme Court capitalised on, in supporting their position.
Just recently, their crusade got the ears of the acting Chief Justice of Nigeria, Walter Onnoghen who wrote to the Nigeria Bar Association (NBA), requesting that it nominate eligible members of the Bar for consideration into the apex court bench. He also gave them a short notice within which to comply with the notice.
The NBA in response, quickly forwarded names of nine eligible candidates to the acting Chief Justice of Nigeria (CJN) and Chairman Judicial Service Commission (JSC), Justice Onnoghen, for appointment as justices of the Supreme Court.
According to the NBA, the short-listing followed a rigorous selection process done by a committee chaired by the president of the NBA, Abubakar Mahmoud (SAN), with eight other eminent lawyers as members.
Among the candidates nominated were former President of the NBA, Dr. Olisa Agbakoba (SAN), Anthony Ikemefuna Idigbe (SAN), Yunus Ustas Usman (SAN), Babatunde Fagbohunlu (SAN), Miannaya Aja Essien (SAN), Awa Uma Kalu (SAN), Professor Awalu Hamish Yadudu, Tajudeen Oladoja and Ayuba Giwa.
The above-mentioned applicants were short-listed from a total of 89 expressions of interest that were scrutinised.But this action has already open up the hornets nest. A group of lawyers led by the octogenarian activist, Pa Tunji Gomez have in protest written to the acting CJN, expressing their disapproval of the nominations and asking for its cancellation for not following due process.
In the letter, dated February 15 and addressed to the acting CJN, the lawyer said members of the Lagos NBA present at their meeting held on February 13, ‘overwhelmingly opposed the said nomination of lawyers for appointment as Supreme Court Justices.’
According to him, their grouse is that ‘due process’ was not followed in the nomination. They also complained that the procedure used was arbitrary and contrary to established procedure in appointing judges.
“The members present disapprove of the undue haste with which the nomination and recommendation was done. The period of three days given to interested lawyers to indicate their interest in the Supreme Court posts is to say the least, a farce and an unusual and unwarranted haste which to them, portray a predetermined agenda, because the procedure of appointing a High Court judge takes weeks, with full consultation of judges and the Bar for their input in the exercise. How is it then that the nomination of lawyers to the Supreme Court, the apex court in the land was limited to three days,” he queried.
He also argued that the appointment raised vital fundamentally issues affecting the profession and the judiciary. He asked whether such action would not indirectly declare justices of the appeal court as unfit or unknowledgeable enough to be elevated to the apex court?
“This is an unfair, demeaning and unjustifiable treatment of appeal court justices, some of whom have spent decades in the judiciary from high court to the appeal court only to be told that a lawyer who has not held any judicial post is preferable. This is unfair, disheartening and a slur on the efficiency of the court of appeal,” he stated, adding that it might affect their dedication, morale and commitment as there is no guarantee of their promotion to the Supreme Court since lawyers can be appointed from the Bar.
The Bar leader argued that there have only been two of such appointments since independence and that it happened under the military rule as exceptions. To now make it a rule that lawyers should be appointed straight to the Supreme Court, he said, is dangerous to the profession and the judiciary.
“It will create the wrong impression which is inimical to the interest of the profession that any SAN is better than a High Court judge and more knowledgeable, as a judge of the High Court cannot be automatically appointed to the Supreme Court, whereas a SAN can be so appointed if this nomination is allowed to become the order of the day,” he stressed.
Notwithstanding his position and that of his group, some eminent Nigerian lawyers have continued to praise the nomination, saying such is a welcomed development.
The senior lawyers whose views were sought by The Guardian said the development would improve scholarship, legal reasoning and judgments at the apex court and ultimately Nigerian judiciary, adding that the blend of regular Justices with those from the Bar would enrich adjudication at the apex level.
Chief Afe Babalola (SAN), said there’s nothing wrong in the appointment, adding that in Britain, only those who are Queen’s Counsel (QC), an equivalent of SAN are appointed into the high courts.
“Personally, I do not see anything wrong with appointing a practising lawyer into the Supreme Court of this country; there is nothing wrong with it at all. The practice in England is that only Queens Counsel that are appointed as even judges. It is in this country that members of the lower bench like magistrates and so on become judges.
“The reason a seasoned practising lawyer is a better judge is because he has seen it all. He has interacted with the clients and the courts and he knows the courts than a lawyer who left the law school and is appointment a junior magistrate and rises from that position up to the Supreme Court.
“There is no time that such a fellow has interacted with clients as a litigation lawyer. It is the experience and weight of the submissions of a lawyer that makes a judge to write a beautiful judgment. Therefore, if you appoint sound lawyers into the bench, they will always turn out better judges. I have always advocated that we should copy what they are doing in England. Now that they have listened, it’s all well and good,” he stated.
Constitutional lawyer, Sebastine Hon (SAN) said its a good development. “The constitution has provided the minimum qualification for appointment into the Supreme Court bench. Once anybody attains 15 years in active legal practice, together with other requirements, he qualifies. The new hierarchy of the Supreme Court is trying to comply with the provisions of the constitution.
“The appointments will definitely bring a fine blend between establishment justices and the private practitioners who are coming from outside. It will better the cause of justice in my own estimation,” he said.
Prof. Taiwo Osipitan (SAN) said it is the right step in the right direction. According to him, the judiciary has not had it so in a long while after the exit of late Justice Teslim Elias and Augustine Nnamani who were appointed straight from the Bar. “I believe that if their nomination is confirmed and they are appointed into the Supreme Court bench, they will do wonders like the Elias and Nnamani’s of this world. I welcome it wholeheartedly,” he declared.
Similarly, Ilorin based lawyer, Yusuf Ali (SAN) described it as a welcomed development. “It is always good to inject new ideas and perspectives to issues. We are applauding it because it is good for the judiciary and our country in general. Their presence will enrich the apex court, “ he said, adding that because those nominated are men of upright character, they would recuse themselves whenever there are clash of interests without being told.