Stakeholders on why judicial appointment guideline must be reviewed
Stakeholders in the justice sector have raised the need for a review of appointment of judicial officers. They said it wouldn’t only expedite judicial process, but help in the administration of justice.
The judiciary, an important arm of government, is responsible for adjudicating disputes between citizens, governments and organisations. It is, sometimes, referred to as the last hope of the common man.
Owing to this daunting task on its shoulders, stakeholders and watchers of events in the sector believe that for it to be effective and efficient, it must be independent and impartial. Section 6 of the 1999 Constitution ensures independence of the judiciary, especially in appointment and removal of judges.
The National Judicial Council (NJC) is charged with the task of recommending to the President or a State governor, as the case may be, persons for appointment into the bench as judicial officers or for removal when infractions are proven.
The guideline for the appointment of judges stipulates that a person has to be a qualified legal practitioner for a minimum period of 10 years. A combined reading of Rule 2(1)(2) and (3) and Rule 3 of the Procedural Rules provide that whenever the chairman of a state Judicial Service Commission or head of a Federal Court proposes to embark on the process for appointment of a candidate to judicial office in the state or of a federal court, notice shall be given to the governor of the state or chairman of federal or state judicial service, depending on who is making the request.
The notice must state the number of judicial officers intended to be appointed. It states: “The Secretary shall upon receipt of the notice, advise the Chief Justice/Chairman of the National Judicial Council in regard to the number of Judicial Officers that can be appointed pursuant to the notice, having regard to relevant budgetary provision in the budget of the Council for the year.
“Upon consideration of the advice, the Chief Justice/Chairman of the National Judicial Council shall notify the Chairman of the State Judicial Service Commission/Committee or, as the case may be, the Head of the Court concerned that the exercise may be proceeded with, or not or may be proceeded with, but with a specified reduction in the number of Judicial Officers proposed to be appointed.
“The decision of the Chief Justice/Chairman of the National Judicial Council shall be communicated in writing to the Chairman of the Judicial Service Commission/Committee, or as the case may be, the Head of Court and shall be final unless the Head of Court shows grounds to the satisfaction of the Chief Justice/Chairman of the National Judicial Council why it should be reviewed.
“A copy of the notice and the Governor’s response thereto shall be served on each Member of the Judicial Service Commission/Committee concerned.
“Upon receipt by the Judicial Service Commission/Committee concerned of the decision of the Chief Justice/Chairman of the NJC advising that the exercise be proceeded with, the relevant Judicial Service Commission/Committee shall (1) call expression of interest by suitable candidates by way of public notice placed on the website of the Judicial Service Commission/Committee concerned, notice Boards of the Courts and notice Boards of Nigeria Bar Association Branches; (2) write to every other head of Superior Courts of Record in Nigeria and to every Judicial officer of the Court concerned, asking for nomination of suitable candidates for the proposed judicial appointment; (3) write, in the case of appointment to a Federal Court, to the President, Nigerian Bar Association; or, in the case of appointment to a State Court, to the chairman of every branch of the Nigerian Bar Association in the state concerned, asking for nomination of suitable candidates for the proposed judicial appointment and requesting that he/she brings to the notice of suitable candidates the call for expression of interest by each of them.”
Lawyers have, however, complained that they don’t get to know those selected for appointment in contravention of the provisions of the guideline.
For instance, Access to Justice had called for an urgent review of the judicial appointment guidelines when Abia State Judicial Service Commission was accused of abuse and corruption during the appointment exercise.
An Abuja-based lawyer, Amaechi Ekwe, said: “We inherited appointment of judges rather than having them elected, from climes like America where leaders operate without sentiments, nepotism, tribal or religious inclinations. But what do we have here? Rulers whose minds are evil and beclouded by nepotism, tribal and religious sentiments, which are visible in the appointments and elevation of judges or justices as well as removing them! If sticking to appointments and elevation of judges and justices cannot hold again in this nepostic era, let us consider judiciary in-house election of judges to be conducted by Nigeria Bar Association (NBA) to determine who should be appointed or elevated as a judge or justice. We know ourselves in the judiciary here.”
Ekwe noted that NBA elections have proven to be most free and fair in recent times, no thanks to the strict following of its electoral guidelines. He emphasized that section 6 of the Constitution of Nigeria 1999 (as amended) provides that the judiciary is an independent arm of government.
He said the fact that all sections of the Constitution for appointments of judges only makes NJC a recommending body to the Governor and President, which would lead to abuse of process.
His words: “These privileges of the Governor and President have been abused over time. Even other politicians are desperate to have their finger at every pie and have waded into appointment and elevation of judges.
“Senators may even be stakeholders in the judiciary because they have cases to be decided by these judges who they recommend. Many applicants might be going to Senators who are close to President or Governors for recommendations. Tell me how you will be independent as a judge in this way or how Judiciary will be independent as a whole?”
According to him, the judiciary is crying for autonomy given to them already by the Constitution and “we are allowing president and governors to appoint judges for us. It’s terrible! Anything that concerns judiciary should be done on merit that’s all we are saying.
“But what do we see, sons and daughters of judges and justices on parade from certain tribe and religion as the next in line to be appointed judges. Children of justices on brazen display! Is it not a betrayal of a profession that is seen as sacred and next to God? What happens to lawyers whose parents are not judges and SANs?”
He further advised the Judicial Service Committee to be wary of appointing lawyers, who are just from law school and then begin to train them as Magistrates without them showing any evidence of at least three years intensive experience in the vibrant world of legal practice immediately preceding the year of their appointment.
“They should show evidence of intensive legal practice as lawyers in the legal field before appointment, that way, they will not be pro- government judges. Judges who did not practice seriously as lawyers before appointment are pro- government judges,” he said.
For Convener, Criminal Justice Network of Nigeria, Nathaniel Ugwu, “appointment to the bench is reserved to legal practitioners, who have distinguished themselves as noble, with high integrity and sound knowledge of the law, as well as committed to respect for the independence of the judiciary. Section 250(3) of the 1999 Constitution of Nigeria provides that ‘A person shall not be qualified to hold the office of Chief Judge or Judge of the Federal High Court unless he is qualified to practice as a legal practitioner in Nigeria and has so qualified for a period of not less than 10 years.”
The Federal High Court Act Section 2(b), he said, provides that a person shall not be qualified to hold the office of a judge of the court unless he is qualified for admission as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.
“This is also similar to states wherein the Constitution under section 256(3) also provides the qualification to be for legal practitioners of not less than 10 years in practice.”
He noted that the issue now is whether the 10 years minimum of post call is still enough for the post of a judge in Nigeria, considering the recent developments in the polity.
His words: “Such development includes, the frequent conflicting judgments from the courts, unfair judgments and judgment influenced by corruption. I believe that the minimum years of post call has nothing to do with the value of judgment churned out of the courts but the democratic failure and lack of the political will of the government in appointing fit judges and justices of various courts. There is urgent need to overhaul the system to get rid of all those vices bedeviling the process of justice delivery in Nigeria.”
Ugwu supports the call for a review of the process to accommodate voting in selecting judges, justices and conducting election for the judicial officers to the office of the Chief Justice of Nigeria and President of Court of Appeal as well as Chief judges of the Federal and State High Courts.
He said: “Our leaders who are supposed to spearhead the virtue of impartially have plundered the nation into divisible entities occasioning agitations, terrorism, corruption and conflicts here and there. The idea to reflect ethnic or gender character should have been better if well reflected in appointments of the judges and justices but what we have seen in recent appointments have left us all into argumentum ad hominem and argumentum ad verecundian instead of argumentum ad rem.
“If the years before a person is appointed to the bench is increased to 15 or 20 years of post call, there will still be discordant judgment influenced by nepotism, political affiliation, tribalism etc. The 10 years minimum is at best the least qualification for a legal practitioner before applying for recommendation by the NJC for appointment by either the President or the State Governor.”
However, the Programme Officer, HURILAWS, Collins Okeke, does not believe a hybrid of elective and appointive positions will address the trust problem. He noted that it would instead exacerbate the problem.
“What we need is a thorough screening and selection process. When the screening and selection process is thorough and transparent, public trust will return.
“Nigeria is a diverse country. This diversity must be reflected in the composition of judicial officers. However, it should not be at the expense of competence,” he said.
Convener, Access to Justice, Joseph Otteh in his view said, post-qualification timelines have not been the sticking points in the judicial appointment debates in the country.
“In fact, it could have been better if the Constitution had been more outspoken on the content of post-qualification engagements than be silent on it, because there have been reported cases where people who spend most of their post-qualification time running salons and liquor businesses end up getting judicial appointments once they reach the 10-year benchmark. What is important to target, in my respectful view, is forensic legal experience – whether this comes from practice, the academia, civil society,” he said.
Otteh said: “I’m not sure the system of electing judges is a marketable or more efficient model. Personally, I must confess to being quite perplexed by the idea of judges having to run for appointment elections and I’m no fan of it. What we need to do is to fix the broken pieces of Nigeria’s system of judicial appointments, and make the process a fairer, more merit-based and transparent system. The current system of appointing judges is simply not delivering the outcomes that represent our best foot forward, because it allows those who control the system exploit its many fault-lines and contours.”
He added: “There is a growing advocacy for judiciaries to reflect the social and racial demographics of the society they serve. In one way, this is basically saying that all shades of society should be represented in the Judiciary, and in another way, it should mean that we ought not to project our biases – gender, ethnic, class, backgrounds – into the judiciary, because in doing so, we deny qualified people the opportunities they deserve and also make the judiciary look like an elitist institution that cannot be trusted to protect the interests of all groups in a society. So, there are good reasons a Judiciary must reflect society’s diversity.
Our Constitution mandates this politically, by saying that federal character principles must be adhered to in making appointments, generally. So, at least, in one sense we can say our laws provide for ethnic representation in the judicial workforce. A great deal of progress has also been achieved in enhancing gender representation of the Judiciary. We probably need to see more of this at appellate levels.”
Otteh, added that, there are no ideal ages for judicial appointments, although you would expect that appellate appointments should require some more maturity and this is reflected in the 12 years post-call experience for Court of Appeal Justices and 15 years for Supreme Court Justices provided in the Constitution.
Quoting the Judicial Appointment Guidelines of 2014, Otteh said, “every qualified person can be nominated and considered for appellate judicial office, this has never produced a non-serving Judge being appointed into an appellate court since 2014 when the Guidelines came into effect. The problem is that successive Chief Justices of Nigeria who control the appointment channels or bodies have some beef about letting non-serving Judges into appellate judicial offices, and want to reserve those places for candidates who are already serving Judges. This robs the appellate courts of valuable diversity, background, perspective and voice. The Judiciary is poorer for that.”
I’m not sure the system of electing judges is a marketable or more efficient model. Personally, I must confess to being quite perplexed by the idea of judges having to run for appointment elections and I’m no fan of it. What we need to do is to fix the broken pieces of Nigeria’s system of judicial appointments, and make the process a fairer, more merit-based and transparent system. The current system of appointing judges is simply not delivering the outcomes that represent our best foot forward, because it allows those who control the system exploit its many fault-lines and contours.