Stakeholders demand strict adherence to guidelines for judicial appointments
Judges are very essential in any given society. They adjudicate over conflicts between parties and give verdicts.
A strong, virile and independent judiciary makes the difference between a lawless society, where anarchy and chaos reign, and that where rule of law, orderliness, and good governance reigns. Interestingly, conflicts are inevitable in every human society. That is why appointing the right candidates into the bench as judges serve as the bedrock for peace, equitable, and just society.
To fill existing vacancies in the judiciary, the National Judicial Council (NJC), at its 93rd meeting held virtually on December 16, 2020, considered the list of candidates interviewed and presented by its Interview Committee for appointment into the bench of various courts in Nigeria. At the end of its deliberation, the Council recommended 69 of the successful candidates to President Muhammadu Buhari, in the case of Kadis of the Federal Capital Territory Sharia Court of Appeal. In the case of other State Judicial Officers and Heads of Court, it recommended them to various State Governors for an appointment. On December 21, the NJC in a statement made public announced the names of the successful candidates it recommended for appointment into the courts of record.
Before now, stakeholders had argued that the selection process lacks transparency and does not fully comply with the NJC guidelines. Convener of the non-governmental organization that serves as Judiciary watchdog, Access to Justice (A2J), Mr Joseph Otteh, said those who manage the system are the major problem in the selection process. “The problem has always been the lack of transparency of the process as well as the lack of accountability of those who manage the process. How are the outcomes decided? The opacity of the selection process does not ensure that it is the most qualified persons that get nominated,” he said.
According to him, such opacity creates room for maneuvering and raises a huge cause for concern. “That is why those who, by the standards of the guidelines, are not even qualified to be considered, get their names into lists submitted to the NJC. Both in letter and Spirit, the guidelines have often been disregarded.
“Let me use this anecdote to illustrate. No person from outside of the Judiciary has been appointed into appellate judicial positions more than six years after the guidelines came into operation. Yet the guidelines say there should be, in essence, an even playing field and equal opportunities to access judicial positions, so that non-judges – those from outside the Judiciary – should be equally considered for all judicial appointments,” he stated.
Otteh stressed that Nigeria needs to put her best foot forward when it comes to judicial appointments. His words: “Everywhere we find the most inspiring people, the ablest, whether, in the Judiciary, the Bar, the academia, in civil society, or in the diaspora, we should reach out to them. But the judiciary is resisting efforts to diversify the backgrounds of its Justices and make the courts more representative of the best the country is able to offer.”
Unfortunately, efforts to challenge the non-adherence to guidelines, he noted, have been rebuffed by the courts on grounds of a lack of standing to do so.
Section 2 of the National Judicial Policy 2016 as it relates to the appointment of judicial officers said judicial appointments process must be transparent and merit-based and skill-based. “A transparent and carefully designed appointment process is indispensable to an efficient and independent judiciary, able to command public confidence in the administration of justice and capable of promoting and protecting the rule of law and human rights,” it states.
Section 2.1(2) says: “Every aspect of judicial appointment process should, therefore, be such as would command public respect and confidence that the best persons in terms of skill, learning, integrity and courage are appointed as judicial officers.”
Section 2.1(4) says: “Such guidelines would contain provisions to ensure that everyone who has the requisite qualifications and qualities needed and desires to be considered for appointment to the judicial office is not excluded from declaring his/her interest.
The yardstick for appointment in terms of skill, competence, integrity, and comportment is strictly observed; the mechanism is put in place for the assessment of the suitability of candidates, including but not limited to, careful screening, interview, and assessment of the evidence presented by the candidate of skill and experience.”
The guideline also states that judicial appointments policy will ensure that lack of comparative seniority will not be an obstacle to the appointment of deserving candidates of a noticeably high standard of integrity and excellence. It further states that there should at all levels of the appointment process, screening of candidates through screening committees that would be charged with evaluating each candidate in regard to the minimum standards set by the judicial appointment guidelines and making recommendations to the relevant bodies at each of the levels.
Otteh, however, pointed out that the NJC is not a primary but a secondary actor in the appointment process. “It only acts after the primary actors have fulfilled their own responsibilities in announcing vacancies, publicizing the announcements, and shortlisting candidates after which the list(s) are sent to the NJC,” he noted, adding that the violations usually occur during the initial stage of expression of interest.
He said: “It is not the NJC that should initiate or call for expressions of interest according to the guidelines but the Federal Judicial Service Commission (FJSC) headed by the Chief Justice of Nigeria (CJN).”
For the acting director, department of Legislative Support Services, National Institute for Legislative and Democratic Studies (NILDS), Professor Edoba Omoregie, at the federal level, the process is usually seamless.
“However, at the state level, there are reported instances of needless interference and politicization of an otherwise professional selection process. As usual, the culprits are chief executives, who have the power to finally endorse the recommendations from the NJC.
“Unfortunately, even before those selected by the State Judicial Service Commission are forwarded to the NJC, for an eventual recommendation, some chief executives actually want to get involved in the pre-selection process. That is where the process gets to be politicised. It is unfortunate, but it is just symptomatic of a decayed system at the subnational level of our country requiring stakeholders to look closely into,” he charged.
Omoregie lamented that all those happen even when there is a well-established process for appointing judges, which involves all stakeholders, in the judiciary (the Bench) and the legal profession (the Bar). “It normally moves from the Federal Judicial Service Commission in the case of federal judicial appointments, ending with the National Judicial Council, which body finally recommends to the President for the appointment of those recommended,” he pointed out, adding that the chief executives of states, who have no role in the selection process usually meddle into it to get it tainted.
The legal officer of the Human Rights Law Services (HURILAWS), Collins Okeke, believes that the appointment policy is well spelled-out for anyone to comply with. According to him, whether those involved are complying with the policy on the appointment of judges is subjective.
He said: ‘In most Instances, the NJC tries to follow its policy and guidelines. The challenge most of the time is in the states. Take for example what happened in Cross River and Gombe states, where governors are interfering with the process so callously. Requirements outside the NJC policy and guidelines were used in rejecting eligible candidates in those states. Unfortunately, there are no consequences for such rejections.”
Counseling those who scaled the selection process, Mr. Adedapo Tunde-Olowo (SAN) charged them to be above board. According to him, Socrates aptly described a good judge as one who listens courteously, answers wisely, considers soberly, and decides impartially.
“We must remember that the dispensation of justice is one of the attributes of the Almighty God. On a daily basis, judges administer justice and make decisions that impact lives. For this reason, it is vital for lawyers seeking to become judges to be independent and impartial. They must be free of all kinds of influence, be it from the executive, the legislature, and even the litigants themselves. They must be ready to dispense justice with courage and without fear or favour.
“Lawyers seeking to become judges must possess a sound knowledge of the law and court procedures. They must demonstrate the ability to grasp the issues submitted to them for determination and deliver concise and clear decisions on those issues. They must also have good time management skills,” he said.
Tunde-Olowo insisted that applicants for judicial office must have excellent character and absolute integrity. They, he stressed, must be unimpeachable as judicial officers and in their private lives. His words: “Finally, they must be patient and tactful. They must have a good temperament. They must also be compassionate but at the same time firm and decisive.”
Managing partner, CLP Partners, Bar Okey Egbuchu said there must be a systemic reset in the process of appointment of judges. He advised that any candidate to be appointed into the bench must first have the passion and desire to be a judge, must have achieved success in practice, earned a comfortable living, and achieved some financial security without displaying extravagant lifestyles.
“The candidate must have a strong will-power. I take honesty and integrity for granted here, however, there is no need to consider other qualities if there is an integrity deficit in any candidate,” he declared.
It is expected that the authorities would insist on complying with all the Procedural Rules for the appointment of judicial officers and begin to consider legal practitioners and law scholars for an appointment. Rule 3(6) of the Procedural Rules says: “In carrying out the provisional shortlisting exercise, the Chairman of the Judicial Service Commission/Committee shall take into consideration as much as possible, (i) professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of 6 contested cases in the last 5 years; (ii) sound knowledge of law, (iii) seniority at the Bar and or the Bench, (iv) Federal character or geographical spread and where necessary and possible, without compromising the independence of the Judiciary or allowing politics to permeate or influence the appointment.”