Nomination of judges to Supreme Court without involving NJC invalid, lawyers declare

Following the revelation that the National Judicial Council (NJC) was not carried along by the Federal Judicial Service Commission (FJSC) in shortlisting 22 Justices of the Court of Appeal for elevation to the Supreme Court, lawyers have declared that the nomination would be invalid if indeed the NJC was not involved.

NJC’s Director of Information, Soji Oye, had yesterday explained that the Council was not carried along with the shortlist of 22 justices made by the FJSC for the bench of the Supreme Court of Nigeria.

Reacting to the development, a senior lawyer, Terkura Douglas Pepe (SAN), told The Guardian that the constitution does not recognise the FJSC as a nominating agency.

He stated that Section 232 (1) of the 1999 Constitution makes the appointment of Justices of the Supreme Court the responsibility of the President upon the recommendation of the NJC, subject to confirmation by the Senate.

“This process subjects the appointment of Justices of the Supreme Court to political interference. It cannot be correct to say the NJC was sidelined in the nomination process. There can be no valid nomination at all if the NJC was not involved.

“The constitution does not recognise the Federal Judicial Service Commission as a nominating agency. Aside from these observations, I think all the nominees are eminently qualified. There was no point distinguishing them as “priority” and “reserved,” he said.

For human rights crusader, Mr. Kabir Akingbolu, the role of the FJSC is to advice the NJC and not to shortlist. He said the appointment of anybody to the bench of the Supreme Court is guided by statute.

“That provision of the law must be followed strictly without any exception. Any contravention of that section of the law will be void or unconstitutional.

“By virtue of the provision of Section 231(2) of the of the Constitution of the Federal Republic of Nigeria 1999 as amended, the appointment of anybody to the bench of the Supreme Court or judge for the Supreme Court must be done by the president on the recommendation of the NJC.

“So, it is not by the Federal Service Judicial Commission. The appointment, nomination or shortlisting was allegedly done by FJSC, but it has no role to play here. The purported nomination is unconstitutional and has no effect in law because the spirit and letter of the law in the constitution has not been followed.

“The power to nominate was given to NJC. They are to make recommendations of the judges to the President for appointment. The FJSC cannot do that. The provision of the law cannot be circumvented by any guise at all. The purported list is unconstitutional except if it is done by NJC,” he said.

He stated that by paragraph 13 of the Third Schedule to the 1999 Constitution, the only role the FJSC plays is to advise the NJC on the nomination of the persons to be appointed as the judges of the Supreme Court.

On his part, Abdul-Wahab Olawale said, “it will be magical and unfortunate if NJC claimed it was out in the dark in the steps and procedures leading to the shortlisting of the proposed Justices of the Supreme Court.”

He explained: “The selection and appointment of the Justices of the Supreme Court of Nigeria is not a straight jacket appointment. It cuts across the three arms of government viz- the Legislative, Executive and the Judiciary, like other appointments of justices of the superior court of record.

“Specifically, Chapter 7, Part 1, Section 231 defines how Justices of the apex Court shall be appointed. The bottom line is that the President shall make the appointment by the recommendation of the NJC subject to confirmation of such appointment by the Senate of the Federal Republic of Nigeria.

“However, the recommendation by NJC will not come from the blues. It has long procedural rules which involved the FJSC, which serves as a midwife to the appointment from the advertisement to conduct of various administrative procedures, which will culminate into the selection of who to be recommended for the NJC, which eventually recommend same to the President, who will finally get the nod of the Senate for the confirmation of the Justices of the apex court bench.

“On the issue under consideration, the NJC headed by the Chief Justice of Nigeria cannot deny the knowledge of the procedure for the shortlisted Justices to be appointed. The reason being that such a list has to pass through the NJC before it gets to the president.

“The response from the Supreme Court Spokesperson may be a passing message to the journalist who made enquiry into the list of those shortlisted and for eventual appointment.”