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Oguche: Number of Supreme Court justices makes mockery of the constitution

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Port Harcourt-based senior lawyer, Barrister Festus Oguche

A Port Harcourt-based senior lawyer, Barrister Festus Oguche, has described the 13-member justices of the Supreme Court as a mockery of the Nigerian Constitution. In this interview with BRIDGET CHIEDU ONOCHIE, he gave insight into the implications of such number against the backdrop of the workload of the court.

What is the position of the law concerning the number of justices to be on the Supreme Court bench at every point in time?
The Supreme Court is at the apex of the judicial hierarchy in Nigeria. It is established pursuant to the constitution, specifically Section .230 and imbued with the powers as donated to it by the provisions of the constitution and the Supreme Court Act. It is imbued with two main jurisdictions – original and appellate jurisdictions. In its original jurisdiction, it acts as a court of the first instance and functions as the regular courts where evidence could be taken, and issues raised at will by both the court and the parties as we see them done in the Trial Courts.

Then, it takes appeals from the Court of Appeal, which is next to it on the ladder in the exercise of its appellate jurisdiction, and which also is the terminal point for any adjudication for those matters that the law provides may get to that point. Remember that certain election petitions terminate at the Court of Appeal also. Neither the constitution nor the Supreme Court Act prescribe a specific number of justices for the Supreme Court, but rather state that the court shall be composed of the Chief Justice of Nigeria and a such number of justices not exceeding 21.

There is a little bit of a contradiction between the Constitution and the Supreme Court Act relating to that number because Section 230 (2) (a) and (b) talk about the Supreme Court consisting of the Chief Justice of Nigeria, and such number of justices of the Supreme Court not exceeding 21 as may be prescribed by an Act of the National Assembly. By the purport of that provision, the Supreme Court can have up to 22 justices including the Chief Justice of Nigeria. The Act, on the other hand, states that the total number of justices of the Supreme Court shall not exceed 21, and is silent on whether or not that also includes the Chief Justice. These are different statutory prescriptions on the same subject matter, but we all know that the Constitution is supreme and the provisions of the Act must surely bow to the superior omnipotence of the Constitution in that regard. Thus the constitutional position would hold sway in the circumstance which provision states unequivocally that the Supreme Court of Nigeria shall consist of the Chief Justice; and a such number of justices not exceeding 21, which thereby puts the composition at a maximum of 22.

Do you think that the 13 members as presently constituted is enough to deal with litigation issues at hand?
The full composition of the court is proper and germane to the exercise of its functions as the highest court in the land. Remember that it is part of its supremacy criteria as the court, not only to give decisions to cases before it but also to formulate policies through the precedents it sets by its rulings and judgments.

In other words, the Supreme Court is also a court of policy. The 13-member structure we currently have is abysmally low and meager as against the 22- member limit prescribed by the Constitution. There is a wide margin between 13 and 22. The Supreme Court is the prime democratic institution that regulates all the other organs and puts them in their proper stead. Even though it is true that the current number of the justices being below the constitutional prescription does not violate or contravene the provisions of the constitution or invalidate the decisions and pronouncements of the court, it makes a mockery of the Constitution itself. For, it would seem illogical that the Constitution would pursuant to its purport, give prescriptions that in practical reality can be circumvented or abridged. I don’t think it is proper to put the organic law of the land through such acts of derogation. Being the grand norm upon which our civil and democratic traditions and ambiance rest, it is imperative that all its provisions are accorded the sacredness they deserve.

The sacrosanct nature of its provisions, both in their letters and spirit is what gives the Constitution its value and from where it derives its authority and supremacy as a fundamental and inviolable law. The Constitution did not give us any inkling as to what number of justices in addition to the Chief Justice of Nigeria should sit in the Supreme Court, but it will be wholly absurd for instance, if it is only comprised of the Chief Justice and one or two more justices. Pundits may argue that any number of justices in addition to the Chief Justice may suffice to satisfy the constitutional requirement but then, it raises questions as per the degree of respect and sanctity that is accorded to our constitution when there is a shortfall that is far below the constitutional prescription. Constitutional provisions may allow some exercise of discretion in meeting its requirements but such exercise must conform to the provisions and not set loose on individual considerations. Professor Ronald Dworkin notes that “discretion, like the hole in a doughnut, does not exist except as an area left upon by a surrounding belt of restriction.” It is, therefore, a relative concept. It always makes sense to ask, ‘discretion under which standards or discretion as to which authority? Under the authority of the Constitution, there is not much room for discretion even though the same Constitution created the leeway for such exercise. That it provides for a maximum of 22 justices does not give anybody the authority to have less than the number. That is why the venerable Professor Ben Nwabueze views constitutionalism not necessarily from the point of view of what it provides, but essentially from the extent and of the limitations it placed on powers and authorities and their willingness or readiness to honour and abide by its provisions.

To my mind, the current composition of the court translates also to a lowering of its essence and the tenacity in the execution of its constitutional mandate. It creates certain hiccups in the justice system, which could result to gradual corrosion and emasculation of its true nature and form as the court of last resort and the last hope of the common man, as contemplated by the constitution.

Also, do you think that the 13 presently constituted members are enough to deal with litigation issues at hand, and what implication does that depletion have on the nation’s judicial system?
The implications of the current number of justices are felt more on the negative aspects of its fallouts than the positive. The current number which is considered rather meager is largely insufficient to deal with the volume of appeals that go to the Supreme Court from all the courts in the country on a daily basis. It has become so disturbing that cases are adjourned for up to three years and even more. One of the prime attributes of justice is the quick disposition of cases. It is part of the hallmarks or standards upon which every judicial system is measured. Justice delayed is justice denied and we have instances where some cases remain pending and undetermined in some courts even long after the litigants have passed on. The implication is that in most circumstances, the end of justice is defeated and the whole cause and cost of litigation defeated by long delays in determination of cases.

As it is currently constituted the Supreme Court can accommodate or constitute itself into two panels; that is, going by the provisions of section 234 of the Constitution. As far as I am concerned, two panels of the Supreme Court sitting to determine the avalanche of cases before it is grossly insufficient. For some reason, they may not sit every day and even if they do, no matter how they try to live up to the challenges that set in, only an infinitesimal proportion of the cases can be dispensed with in record time. Cases could remain in the Supreme Court for up to 20 years without even getting a mention. A 22-justice structure could allow for as many as three or four panels for each day of sitting, in spite of which I still think the number has to be increased, and in which case, it requires a constitutional amendment. The Supreme Court can have as many as seven panels sitting at the same time and the present load on it so requires that the court be so enabled constitutionally.

Additionally, the jurisprudence of the court, which in effect relates to the development of law in Nigeria, is crystallized in the different opinions of the justices and the more the number of justices the better for it. Even though our case law has developed to such large proportions that make recourse to foreign decisions unnecessary, there is still room for improvement and further development of the law, particularly in areas that are still recondite within our jurisprudence or jurisdiction. The sphere of the law keeps expanding every day, be it medical law, cyber law, terrorism law biotechnology law, human rights law, engineering law, and intellectual property law, and these require specializations even on the bench for a thorough understanding and proper comprehension of cases that are embedded in such highly specialized areas of law, for the demands of justice to be met. The Supreme Court Justices and indeed officers of other courts must comprise of persons who are knowledgeable in the diverse areas of law and jurisprudence to enable them meet the justice criteria in such adjudications. But a 13-member composition may not allow for such expanded scope and crystallization as envisaged by the Constitution in its prescription as per the number of justices and this shortfall would impact negatively in the overall justice delivery system.

Thus, it is not only for the need for quick disposal of cases that the number of justices was prescribed for the Supreme Court by the Constitution but also for a more intellectually rigorous wholesome and sound determination of the cases before the court, in line with global standards and practice. It is equally to make for good precedents to be set and case laws to be developed in tandem with the demands of justice, the dynamism of society and global trends, well outside the ‘finality’ emphasis of the Supreme Court, which appears to be its current passion and disposition.

This paucity in the number of justices could also mean that the present composition of the Supreme Court, which by all standards is inadequate is the function of the manipulations of the political elites and the undue interference and influence they wield over the judiciary. A smaller number of justices would reduce to its minimal proportion, the level of activism or radicalism that could churn out from the court’s hallowed chambers. I had very strong premonitions to reflect along this vein immediately upon the removal of Justice Water Onnoghen as the Chief Justice of Nigeria.

I sometimes incline to ponder over some of the bizarre developments from the Supreme Court in more recent times, where parties return to it to ask for a review or reversal, but then I am consoled by the fact that the strength of the entire judicature lies in the Supreme Court, and the confidence members of the public reposes on the judicature also lies in the strength and integrity of the court.

Ronald Dworkin reminds us that the empire of law “is defined by attitude, not territory or power or process.” We take solace in those words and state that the integrity of the Supreme Court and the sanctity of its decisions cannot in any way be impugned, no matter the challenges that pose themselves against the realization of its mandate as being the last hope of the common man.

How can the bureaucratic bottlenecks associated with the appointment of justice be eliminated?
I don’t understand what you mean by bottlenecks here, but if you are construing it within the context of the appointment of judges, justices and other law officers and members of the bench, I think it is more of a problem created by the Constitution, than bottlenecks in administration per se.

The procedure for the appointment of justices areas contained in the constitution Section 250 (S. 231, 238). For the Federal Courts beginning with the Supreme Court, the President appoints on the recommendation of the National Judicial Council. The same also goes for the Governors with regards to appointment to judicial offices of the state courts. That arrangement obtains everywhere including the United States of America, although with some modifications. The financing of the judiciary, discipline, and removal of judicial officers are also at the instance of the executive. But in making the enactment, the drafters of our Constitution failed to put into consideration the character of our political elites and their manipulative tendencies on democratic institutions pursuant to a desperate end and how this could impact on judicial sanctity. Those provisions are what provide the impetus for the spate of interference and manipulation of the judiciary by both the elites and the executive arm of government. The idea of the judiciary as envisaged under the Constitution is one aimed at securing within it, a freedom from political, legislative and executive control. That is the whole essence of Baron Montesquieu’s doctrine, as per why and how, inspite of the visible fusions, powers are separated in such manner as to keep each arm at a distance from the other, as a necessary imperative to keeping tyranny at bay. But then, as we have so far seen, when an organic instrument such as the Constitution imbues certain powers relating to appointment and discipline either directly or indirectly to political actors who act in the mould of desperadoes, then you are bound to encounter problems here and there on keeping those provisions afloat. And so, we once had a whole judicial system locked-down for almost two years by the authorities here in Rivers State over some political tug of war on the appointment of the Chief Judge. More recently, a subterranean process was invoked for the removal of the Chief Justice of the country outside constitutional provisions and the process sailed through.

Whatever bottlenecks exist that impede against the appointment of the rest of the justices of the Supreme Court to bring the number to 22 or thereabout are embedded more in political considerations or exigency than any dearth in the availability of qualified persons for the positions in the making of such appointments. And like I said, some persons may just be satisfied with the current composition of the apex court as it may well pander to their self-serving and egoistic purposes. I strongly doubt if there are any bottlenecks or obstacles in the way of the National Judicial Council to make its recommendations, except if there is a likelihood of reluctance on the part of the executive or any interested party to have them make such recommendations. We have seen that the NJC is equally vulnerable to executive bullying in the Ayo Salami and the Onnoghen cases.

The veritable antidote to these visible loopholes and inadequacies is the creation of an ambiance that will make political interference in the judiciary less possible. The only practical way to do this is to amend the Constitution in the areas of the mode of appointment of judicial officers, funding, and discipline. The judiciary can be a self-regulating organ that can operate optimally if given the necessary independence and autonomy, without extraneous influences. Then again, the National Judicial Council must not be composed of serving judicial officers. See, we must put these checks in place to meet the peculiarities of our needs and circumstances. My idea of an NJC is one composed of retired judicial officers, professional bodies, NGOs, representatives of an international commission of jurists, etc, as to give it the requisite form and functionality that will make it stand firmly on its mandate without fear of intimidation.


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