The delay by President Muhammadu Buhari in the confirmation of judges of the Court of Appeal and other courts forwarded to him by the National Judicial Council (NJC) is generating controversy among lawyers.
The list of 14 newly appointed justices of the Court of Appeal and the FCT High Court, which are presently before the president have yet to be confirmed.
When contacted, the spokesman of the president, Femi Adesina, referred our correspondent to the Attorney General of the Federation (AGF) and Minister of Justice Abubakar Malami (SAN). Malami, however, could not be reached last night.
The NJC had in November, 2017 recommended the judges to the Federal Court of Appeal. The names of the judges are: Justices P.A. Mahmoud (Benue); Folashade Ojo (Kwara); I.G. Abundaga (Nasarawa); M.B. Idris (Niger); Abubakar Talba (Adamawa); and Kadi Alkali (Adamawa).
Others are: A.I. Adenyangtso (Taraba); Sadiq Umar (Kebbi); Danladi Senchi (Kebbi); A.M. Lamido (Sokoto); B.B. Aliyu (Zamfara); Ebowei Tobi (Delta); and Gabriel Kolawole (Osun).
Also, within the same period, the NJC submitted a list of 10 judges for the FCT High Court. They include Babangida Hassan (Bauchi); Binta Mohammed (Kaduna); Hauwa Shehu Aliyu (Zamfara); Khadija Mounir Gwarzo (Jigawa); Akobi Iyabani Anna (Cross River); Asmau Akanbi Yusuf (Kwara); Samirah Umar Bature (Sokoto); and Modupe Osho-Adebipe (Ogun).
Also, the NJC submitted a list of 10 new Federal High Court judges to the president for confirmation, which has not been done so far. Observers are worried that the delay in confirming the Federal High Court judges could be an extension of the non-confirmation of the Acting Chief Judge of the court, Justice Abdul Kafarati. He was sworn in by the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen to replace retired Justice Ibrahim Auta on September 16, 2017. But his Acting appointment has been renewed twice without confirmation to substantive position.
Similarly, the Grand Khadi of the FCT Sharia Court of Appeal, Justice Ibrahim Rufai and President of the Customary Court of Appeal, Justice A.M.A. Sadeeq have also not been confirmed since November 2017 when their names were forwarded to the president by the NJC.
The NJC submitted the lists to the president in line with the provision of Section 238 (2) of the 1999 Constitution as applicable to all the positions thus: “The appointment of a person to the office of Justice of Court of Appeal shall be made by the President on the recommendation of the National Judicial Council.”
It was argued that sub-section one of the 2014 Revised Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria’, which emphasizes performance, was not adhered to as primary consideration was given to sub-section four of the Rules, which is based on state of origin.
The Rule 6 provides thus: “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 six contested cases in the last five years; (ii) sound knowledge of law (iii) seniority at the Bar and or 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.”
But the NJC in a statement by its Director of Information, Soji Oye denied the allegation and explained the procedure for the appointment of judicial officers to the Court of Appeal is done on merit and geographical spread.”
However, a fresh controversy was stirred recently by the President of the Nigerian Bar Association (NBA), Abubakar Mahmoud (SAN), when he threatened to go to court to challenge the delay by the president in confirming the nominees.
Mahmoud accused President Buhari on constitutional dereliction of duty in governance by the lack of confirmation of the list of judges, which was submitted in November, 2017.
Speaking at the two-day National Executive Committee (NEC) meeting of the NBA in Kano on May 11, Mahmoud noted that appointments to the Bench of the Federal High Court and other federal courts were also pending many months after recommendations to the president.
“Acting on the recommendations of the NJC is not a matter of presidential discretion, to be exercised whenever the president deems fit. It is a constitutional duty,” Mahmoud was quoted as saying.
“Whilst the president is not bound to accept the recommendations, failure to act is a breach of the constitution.
“I therefore call on the president to act without further delay! This failure to act is causing unnecessary delays and avoidable negative consequences on the administration of justice across the country,” he added.
However other lawyers have argued that the constitution did not make any time limit for the president to deal with the list of judges, even though in this instance it has stayed for six months.
Ahmed Raji (SAN) said there is no timeframe for the confirmation of the list sent to the president, but it must be within a reasonable time. He cautioned that the president must be given benefit of the doubt to do due diligence so that undesirable elements do not find their way into the judiciary.
“It calls for constructive engagement by stakeholders in the industry and not a law suit. Not long ago the president received in audience members of the NJC I believe that window should be exploited, I don’t believe NBA president called for a law suit,” he said.
Also speaking, Abeny Mohammed (SAN) said there is no time limit for the president to forward the name to the Senate for confirmation.
In his submission, Hammed Ajibola Jimoh stated that there is provision that mandates the president to do so within any particular time.
“So, in my view, the time within which to make the appointment is discretionary to the president and he cannot be compelled to either make such appointment or to make the appointment with a particular time. Though, the president is to be guided by the national interests for a quick appointment of those justices and judges,” he added.