Reviewing Nigerian Supreme Court appointments

Career progression in one’s chosen profession is an entirely natural and legitimate aspiration. Whether overtly or opaquely expressed, it is entirely reasonable for able and willing judicial officers to aspire to becoming Justices of the Supreme Court and of course,the topmost role of the senior judiciary, the position of Chief Justice of Nigeria, or correspondingly similar positions in other jurisdictions.

The orthodoxy of appointments to the Supreme Court, the final appellate court in the country, and the main focus of this essay, demands high intellectual capacity, presence and soundness of mind, proven legal practice expertise over several years straddling civil and criminal cases; unimpeachable integrity in actions, words and deeds; a politicism, balance, consistent objectivity, judgment and the right temperamental disposition at all times. These and related prerequisites are also crystallised in statute.

Section 231 (1) of the 1999 Nigerian Constitution (as amended), for instance, imposes an additional criterion of at least 15 years prior legal practice experience before appointment to the Supreme Court. The preceding section 230 of the Constitution, limits the number of Supreme Court Justices to 21as determined by the National Assembly.

From the latter provision, the inference of extremely fierce competition for the limited opportunities on the final appellate court is not far-fetched, especially when counter-balanced against Nigeria’s federal system of government within its 36 states’ model, in a country of approximately 222 million plus people.

Over the years, Justices of the Supreme Court (JSCs) have typically been appointed from the Court of Appeal, which in the hierarchical appellate order, lies just beneath the Supreme Court (SC),without, in recent decades, appointees emanating from academia and private legal practice.

For elucidation, the advanced contention that the pool from which Supreme Court Justices are drawn, ought to be widened to accommodate, on merit, outstanding legal scholars and private legal practitioners who meet the rigorous appointment criteria to the highest judicial offices in the land, perhaps on an 90/10 basis where 90 per cent of the appointees would still emanate from within the pool of serving senior judicial officers and the remainder10 per cent from outstanding academics and private legal practitioners.

Three key reasons, justify the proposition. First, introducing demonstrably brilliant scholars and legal practitioners to the Supreme Court would enrich the jurisprudence, philosophical plurality necessary in the critical analysis and determination of cases, and by implication, the quality of decisions emanating from that institution.

This proposal is exemplified by Professor Taslim Olawale Elias (1914-1991), Nigeria’s former Attorney-General, who was appointed to the position of Chief Justice of Nigeria in 1972 from his position as Dean of the Faculty of Law, University of Lagos. He later served, with distinction, as the pioneering African President of the International Court of Justice and subsequently at the Permanent Court of Arbitration, both at the Hague.

Second, the emerging trends in the development and sharper articulation of international jurisprudential best practice is being collaboratively framed by senior judicial officers in the superior courts (High Courts and Courts of Appeal) and, importantly, appointees from academia and private legal practice in countries with a common law patrimony like Canada, United Kingdom and the United States.

Take Jonathan Sumption K.C.,the historian, ex-columnist and former speech writer; and a retired Law Lord of the UK Supreme Court through 2012 and 2018. He was appointed to the UK Supreme Court directly from successful private legal practice without having served a single day as a full-time judge.

He currently serves as a Non-Permanent Judge of Hong Kong’s Final Court of Appeal. Similarly, Justice Elena Kagan, was appointed to the U.S. Supreme Court in 2010 after a lengthy career including as former Dean of Harvard Law School. Plus, Justice Suzanne Cote, was appointed to the Canadian Supreme Court in 2014 following a glorious academic and private legal practice career.

Third, is the continuous challenge of an insufficient number of appellate Court Judges, which invariably means that cases tediously meander through the appellate courts which can often take years. The adage justice delayed is justice denied, strikingly reverberates here if litigants can neither make head nor tail of their matters after many years, which in turn upends the very essence of the rule of law.

Surely, this conundrum demands attention and innovative judicial policy reform. What then are these? For a start, no aspect of the administration of justice is, nor should be, static. As society evolves so should the administration of justice in all its interdependent facets.

Thus, whilst the thrust of this paper is the review of appointments to the Supreme Court, of necessity, an efficient and effective administration of justice is only as resilient as its weakest link. So, competent, well-trained and motivated legal and administrative support staff; ditto, functioning IT and digital technological systems are quite simply non-negotiable in this day and age.

In many courts across Nigeria, Judges still record cases longhand and are heavily reliant on standby generators because of erratic power supply on the national grid. Invariably, this creates a ginormous backlog of cases,which is quite simply unsustainable. The perverse manifestation of the latter ispartly evident by the fact that tens of thousands of suspects are on remand/awaiting trial in various correctional centres(prisons!) across the country.

This itself violates the overarching ethos of the Administration of Criminal Justice Act (ACJA) 2015. The statute aims to embed seamless administration criminal justice in Nigeria,the proficient management of criminal justice institutions and speedy dispensation of justice. It also seeks the protection of society from crime; safeguarding the contending rights and interests of suspects, defendants and victims as was enunciated in Federal Republic of Nigeria v Lawan (2018) LPELR-43973 CA, per Uwa JCA.

However, according to the Director-General Nigeria’s Legal Aid Council, Aliyu Abubakar, out of 70,000 prison inmates in the country, 66,000 (94.2 per cent) are awaiting trial owing largely to crippling capacity constraints!

Summing up, this essay recommends a holistic review of Nigeria’s administration of justice to include, but not be restricted to, the meritocratic appointment of eminently qualified jurists and private legal practitioners to the Supreme Court bench. This will enrich the Court’s jurisprudence as those appointees experientially, as illustrated above, bring a broader socio-legal perspective to the development of the law, which does not and is not intended to exist in vacuo.

It is suggested that the mechanics of such appointments be executed on a 90 per cent to 10 per cent basis, in favour of serving senior judicial officers who meet the requisite selection criteria. Ditto, terms and conditions of service of all judicial officers should be reviewed in the light of current socio-economic realities.

Equally, the aforementioned apropos, highlights the case for additional resource allocation to the judiciary and its financial autonomy. This implies the meritocratic, qualitative and quantitative engagement of judicial officers for the overriding function of adjudicating matters before them according to law; and to help cut the suffocating backlog of cases.

This does precious little to advance epic aspirations pertaining to the effective and efficient administration of justice in the country; but perversely, invokes the spectre of upending the important overarching objectives of ACJA 2015 and the Preamble to the 1999 Constitution which seeks to promote good government and the welfare of all persons, the principles of Freedom, Equality and Justice.

Financial overheads pertaining to the administration of courts nationwide including the costs of procuring and maintaining new generators, diesel, vehicles etc speaks to the issue of recasting the existing operational delivery model. What, if any, is the compelling logic of the Federal Government or state government owning court houses?

These could be concessioned applying Public Private Partnership models and strict contractual terms such that the concessionaire owns, leases or procures physical assets, like generators, solar energy alternatives, ICT infrastructure, office equipment, etc and courts applying hypothecated budgeting models simply pays for its usage.

These models are tried and tested in other countries and could certainly be piloted in parts of the country to gain important lessons prior to any decisions on roll out. The net effect here is that Judges focus and adjudicate on the cases before them, not worrying about incessant power-cuts and transactional costs relating to generators and alternative power supply chains.

In short, new models are pivotal in the quest for sharper, more efficient and effective administration of justice in Nigeria and innovative approaches justify a re-examination of the mechanisms for appointments to the Supreme Court bench.

No doubt, these proposals will engage the attention of the National Assembly, Nigerian Bar Association, Law Reform Council and other stakeholders, which is entirely proper and gives meaning to the imperfect, albeit living, democracy called Nigeria. So, let the policy debates commence!

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.