Politicisation of judicial appointments and implications on justice delivery
Stakeholders in the temple of justice have often clamoured for quality judgment and acceleration of justice delivery in various court levels across Nigeria. As it was often suggested, one of the ways of achieving that objective is through engagement of additional judicial officers to handle the heavy workload in the courts’ dockets. Unfortunately, the recent nomination exercise conducted for judges for elevation into the Court of Appeal has been generating controversies. Rather than bring a sigh of relief to the bar and the bench, the process was received with skepticism on the ground of alleged politicization.
National Judicial Council (NJC) under the chairmanship of the Chief Justice of Nigeria (CJN), Justice Tanko I. Muhammad, which is saddled with the responsibility of recommending judicial officers to the President for appointment, recently recommended the appointment of 26 judicial officers. The resolution was reached at its 94th meeting held between March 17 and 18 March, where the Council considered list of candidates forwarded by its Interview Committee. Out of the number, 18 Judges were recommended for the Court of Appeal bench.
Some of the candidates/nominees include Justices Bature Isah Gafai, Muhammad Ibrahim Sirajo, Waziri Abdul-Azeez, Yusuf Alhaji Bashir, Usman A. Musale, Jauro Ibrahim Wakili and Abba Bello Mohammed. Others are Justices Grand Kadi Mohammed Danjuma, Danlami Zama Senchi, Mohammed Lawal Abubakar, Hassan Muslim Sule and Amadi Kenneth Ikechukwu. There are also Justices Peter Oyinkenimiemi Affen, Sybil Onyeji Nwaka Gbagi, Olasumbo Olanrewaju Goodluck, Banjoko Adebukunola Adeoti Ibironke, Olabode Abimbola Adegbehingbe and Bola Samuel Ademola.
But before JNC’s statement on the recommendation of judges, some lawyers who were preview to the process of selection came publicly to criticize perceived politicization of the exercise and warned of its implications on the judiciary. Their grouse hinged on the belief that some of the judges who could not answer the questions put before them at the screening exercise should not be considered qualified for the elevated office of the Appeal Court.
Although he has come out to put a disclaimer to his earlier position for being quoted out of context, one of the prominent voices against alleged politicization of the selection exercise was the President, Nigerian Bar Association (NBA), Mr. Olumide Akpata. Akpata had written the CJN, intimating him of his reservations on the screening process and the fact that he was scandalized by the shoddy manner in which the screening was conducted. Akpata was quoted to have said that his experience at the NJC meeting on the appointment of judges to the Court of Appeal left him aghast, to the extent that he asked if the judges were actually being screened to occupy Court of Appeal bench.
“Important legal issues that were occasionally put to the nominees could not be answered. The whole proceedings appeared more of an old school boys meeting. When I wondered at this, I heard things like, ‘they will learn on the job.’ We were to interview 20 nominees at a point but only two hours was allocated for this important exercise. That meant six minutes only for each nominee. What is this? Let me assure you that NBA will never be a rubber stamp participant at such bodies. You can quote me,” he had declared. Although Akpata in subsequent statement issued last Thursday claimed that he was quoted out of context by a section of the media, many attributed the recanting position to immense pressure against the NBA president.
The truth however remains that he questioned the integrity of the exercise since he admitted expressing concerns about the competence of some of the candidates that were interviewed and the process that led to the recommendation of 20 candidates to the NJC for appointment as justices of Appeal Court. “At that meeting, as is customary, I reported my overall activities including my participation at the last NJC interview meeting of the recently appointed justices of the Court of Appeal. As I mentioned earlier, the foregoing formed part of my report to the NBA-NEC, a body to which, as President of NBA, I am accountable. Unfortunately, one of the members of NBA-NEC rushed to the online blogs and published his own version of that statement and in the process, quoted me, not necessarily incorrect but definitely out of context,” Akpata held.
In reaction to the announcement by NJC recommending 18 judges to President Muhammadu Buhari for appointment as Justices of Court of Appeal, a human rights group, Access to Justice, raised the issue of geo-political composition of the candidates and the fact that many groups have alleged compromise in the process. Aside the group, others have frowned on the lopsidedness in the composition of the new list. About 11 of the 18 justices are from the North, leaving only six slots for the remaining sections of the country.
However, the President, Court of Appeal, Justice Monica Dongban-Mensem, who spoke on the various allegations stressed that the exercise passed through due and usual process of appointment into the judiciary. Unfortunately, her explanation did not neutralise the notion that the appointment was the handiwork of the presidency and driven by the desire to influence how the Judiciary is constituted.
According to Access to Justice, there was no evidence of objectivity and merit in the selection exercise in line with the Extant Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria otherwise known as Appointment Guidelines. “.
“There is nothing to indicate, for example, that FJSC published the Court of Appeal vacancies on its website or invited applications from all qualified persons for those vacancies, or placed vacancy notices on the notice boards of NBA alongside sending relevant notices to the leadership of NBA, all of which is required under the Guideline. The outcome of the selection exercise shows that no nominee for the Appeal Court positions was selected from the Bar in spite of the broad range of professional competencies found among practicing lawyers and academics. It further shows that the judiciary is still maintaining its narrow, insular and counter-productive policy of excluding other qualified members of the legal community from consideration for appellate judicial positions in spite of provisions of the constitution and the appointment Guidelines,” the body said.
It further expressed concern that rather than re-inspire the public confidence that has been brutally shaken in the last few years, the Judiciary appeared adamant to public perception and image laundering. “On the contrary, the judiciary is continuing the culture of business as usual and The Federal Judicial Service Commission (FJSC) which is responsible for ensuring that candidates for federal judicial office are selected based on stipulations of transparency, objectivity, a level-playing field and merit, has a dismal and notorious history of flouting the Appointment Guidelines and shielding information about what was actually done from the publicdoing more now to further weaken its poor standing and increasingly becoming the new frontier and battlefield for geo-political dominance and supremacy rather than the politically non-aligned and neutral place it ought to be for settling legal disputes,” the group said. Access to Justice therefore called for cancelation of the entire judicial selection exercise and the commencement of another process that would begin with a call for expression of interest to allow for a transparent, objective and rigourous process that will evaluate the strengths and credentials of those applying for the available positions.
In his opinion, an Abuja-based Senior Advocate of Nigeria (SAN), Mazi Afam Osigwe, noted that if the observations of NBA president were true, the outcome of the process might have serious implication on the justice system. According to Osigwe, if those judges who could not provide answers to the questions were allowed to proceed to the Court of Appeal, it would surely reflect poorly on the kind of judgment they give. “It also means we should look at the process of even short-listing them in the first place to see if it was merit-driven, was not driven by any objective or shrouded by sentiments. Maybe that is the reason some people felt it was politicized and not driven by a quota system but there is every need to make it a merit-driven system or objective-driven system to ensure that the right calibre of persons are appointed to the bench whether at the Court of Appeal or any other court across the country. So, I agree with NBA that there is need to look at the system because of how it is being presently constituted. It may not give us the best persons to occupy various court benches,” he said.
But wouldn’t the call for cancellation of the entire process jeopardize chances of urgent need for more justices to reduce workload and facilitate timely dispensation of justice? Osigwe insisted that getting persons into the bench by all means would not solve the problem of excess workload. He noted that the problem was that for some reasons, people don’t believe that they get justice in the country’s court system and as such, they find every reason to appeal against every judgment.
“And the appealing process is very easy and in many cases, you don’t require leave. So, whether or not you employ more justices, the problem will continue. Now, there is need to bring a multi-faceted approach to the issue. What I mean is that certain matters should not get to the Supreme Court. We should look at the process of amending the Constitution to set up Appeal Court system for the states, where issues such as chieftaincy matters, land, tenancy and other minor matters are terminated at the state level, except they raise a very serious constitutional matter.
“There are certain matters the Supreme Court would want to hear the case so as to settle the laws in those areas but a situation whereby a simple issue of employee/employer gets to the Supreme Court is not helping issues. Matters that Supreme Courts of other nations ought not to border themselves with get to our Supreme Court.
“Then, we also need to look at other aspects such as rigging in the electoral system which ensures that people do not accept the outcome of elections. Also, the lack of internal democracy within the political parties that ensures that people appeal in court, and the premium the Constitution has placed on electoral matters by stating that it must finish within time frame, while not paying attention to commercial litigations, which supposed to encourage investors into the country. Those are left unattended. We must take steps to ensure that our courts get less involved in electoral matters. When you amend the constitution to allow Supreme Court to take gubernatorial elections, you have succeeded in pushing one problem from one point to another,” Osigwe explained.
Also speaking on the issue, a lawyer and immediate past president, Campaign for the Defence of Human Rights, Malachy Ugwummadu, stated that the observation of NBA President over the screening exercise of nominating justices of the Court of Appeal was grave. The gravity of the statement he said, hinged on the belief that the President of the Bar was in a better position to fully comprehend the weight of his statement, which is now in the public domain. He added that as the leader of a major stakeholder (the Bar) in the justice sector of Nigeria, Akpata’s courage and forthrightness in speaking out, unlike his colleagues who may be equally aware but blowing muted trumpets over such sensitive issue, should be commended.
He however urged him to go beyond lamentations and mobilize the entire Bar in protest of what he has just observed and call for a proper screening exercise that will restore the confidence of the public and reassure practitioners and even the Bench, “that ours is still a judiciary that is reliable and dependable both in character, conscience and sound legal knowledge.”
Ugwummadu noted that the suggested action has become very imperative in view of the fact that in the jurisprudence of law, “the notion of justice takes a flight not at the point when you lose a case but at the point when the public loses confidence in what is happening there.” His words: “Indeed the president and the bar should explore serious injunctive remedies until the proper thing is done to redeem the integrity and image of Nigerian judiciary.”
For another practicing lawyer, Victor Ozegbena, the judiciary should not be dragged into controversy through ethnic, religious and political sentiments. “I believe transparency and due process is the hallmark of appointments into such exalted positions in the temple of justice pursuant to Section 14(3), 42 and Third Schedule, Part 1, Paragraph 12 and 13 of 1999 Constitution. I am reluctant to believe the controversies being canvassed in the public space because our legal jurisprudence does not work with specifications or hearsay. There are laid down procedures in the appointment of justices or judges by concerned judicial institutions, which must be strictly complied with. We must not allow politics, religious and ethnic biases to entrench their divisive roots into the appointment of our justices if we must have a bench that stand to enjoy the people’s faith, confidence and trust. A contrary position to this is likely to impeach the credibility of the system now or later,” he warned.
However, Professor Epiphany Azinge (SAN) has an entirely different view on the controversial screening exercise. He stated that he doesn’t believe that the process has any implications on the quality of judgment. His words: “Certainly, I don’t think the number of hours spent on screening or inability to answer some questions at that sitting were enough to diminish the quality of judgment. You should understand that Judges are permanently under scrutiny in the sense that they submit their judgments for performance evaluation periodically and when requested. From their judgment, their qualities shine through and we can determine who is good enough and who is not good enough.
“I believe that preliminary exercises must have been conducted before the NJC interview. So, one cannot isolate the NJC interview or take it on its own alone to determine the seriousness of the exercise in picking who will become the Appeal Court justice or not. Taking into cognizance, the fact that over a period of time, they have been consistently and constantly scrutinized, the interview exercise was just a more or less, symbolic to make sure that the procedure is complied with. It is not on its own a measure of determining who is good enough and who is not. In that regard, if you want to put it seriously, there are other considerations that you may not want to think of; the consideration of federal character among others.”
Prof Azinge insisted that it does not in any way suggest that everything is squarely based on performance at NJC but that other considerations will always come to play in the process of selection. “Put it this way, when people go for job interviews, they don’t equally need to pass all the questions to be picked. In this circumstance, there might be some other issues that might come to play – the issue of decorum, character, petitions, whether the persons have been indicted by NJC before, summoned by EFCC or any anti-corruption agencies. All these cumulatively come to play. So, I don’t think that an academic exercise in terms of questions answered within such a short time is on its own, an indication of whether somebody is good enough or not.”
Azinge, however, commended Akpata for his observations “even though he is trying to put up a disclaimer to that.” He said: “Whatever is the case, it is a wonderful observation but I must submit that in my own estimation and from experience, I don’t think that is enough to diminish the work of NJC or is it an indication that the quality of people to be appointed are in anyway diminished.” While Nigerians expect clarifications amidst raging controversies, there appears an uneasy calm in both NJC and FJSC.
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