Senate Judicial Nominee Confirmation Hearing and the Urgent Need for Reform in the Judicial Appointment Process – By Ellias Ajadi

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“When the CJN tanks so expansively on the most elementary of legal questions and yet gets confirmed for the most important job in the judiciary regardless, we are given too many things to worry about, one and perhaps more implicating of which is the matter of the kind of technicality by which he slipped through, or was encouraged by our gazes onto such stage of monumental embarrassment not just of himself, but of institution and system. 

“There is thus a sense in which he is actually a victim of our collective absentmindedness, indolence and skewed systems. 

“We are certainly in more trouble as a people than we confess. Truly!” 

  • Andy Akporugo Jr, Lawyer & Public Commentator

“I am prepared, to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”

  • Gerald Ford, the 38th President of the United States

The last few days have witnessed quite some fascinating storms in Nigeria’s public sphere. However, the most important has been the confirmation hearing in the Senate for Justice Ibrahim Tanko Muhammad, JSC who has been acting as the Chief Justice of Nigeria since December 2018 in the wake of Justice Walter S. N. Onnoghen’s Code of Conduct Tribunal “roforofo”. Justice Muhammad was earlier in July recommended by the National Judicial Council to President Muhammadu Buhari for appointment into the substantive position of the office of the Chief Justice of Nigeria. As dictated by the principles of checks and balances under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the nominee appeared before the Senate for confirmation of his appointment. The highlight of that hearing, however, was the “technicality” question asked by Senator Eyinaya Abaribe (PDP, Abia) to which the CJN nominee gave a response that had since generated countless commentaries both from within the legal community and beyond. This writer had before now given his views but the significance of that episode in the confirmation hearing and the larger constitutional failings staring us in the face calls for some serious introspection.

Away from Nigeria, however, is the recent death of Justice John Paul Stevens, the retired senior Associate Justice of the Supreme Court of the United States. Justice Stevens died on 16 July at the age of 99 years. Encomiums and tributes have continued to pour in, in recognition of his immense contributions while on the Supreme Court bench. He had retired in 2010 after some 35 years on the high court bench following his nomination by President Ford in 1975 in the wake of President Nixon’s resignation after the Watergate scandal. Justice Stevens’ confirmation in the United States Senate was one of the finest moments of that body’s existence – a rare 98 – 0 non-partisan vote in support. Ford would in 2005, on the occasion of the 30th anniversary of Justice Stevens appointment, write to the Dean of the Fordham University School of Law that he was satisfied with that singular act and was prepared “to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”

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In his career on the bench of the Supreme Court, Justice Stevens, who was appointed by a Republican president but confirmed by a Democratic-controlled Senate, evolved to become the leader of the liberal wing of the court. To his credit, one of the most popular administrative law principles in US laws, the “Chevron deference” was formulated in a lead opinion he delivered in 1984. Every law student in American law school today know that principle well to the effect that positions canvassed or interpretations favoured by administrative agencies are to be respected by the courts, absent any contrary interpretation that may be found in the enabling statute.

Back home, the highlight of Justice Muhammad’s confirmation hearing was the law lord’s unbelievable answer to Senator Abaribe’s query of what is to be expected of the apex court under his leadership vis-à-vis the myriads of decisions that did not do substantial justice but rather determined cases based on technical points. The response from the CJN nominee has been variously described. For the sake of not saying too much, I rather call it a technical knock out self-inflicted by the CJN nominee. What baffles me however was that none of the senators was bothered or got outraged to check the CJN nominee that his response was, perhaps, a misunderstanding of the question asked. It was nothing short of a comical theatrical performance for something Andy Akporugo Jr aptly described as the most important judicial job in the land.

Confirmation hearings in our clime have been total misses through and through. We have had ministerial nominees asked to take a bow and go. No serious question of policy understanding or ideological preferences. For a judicial nominee, one would have expected serious questions to be asked about the administration of justice and how the courts can better function to ensure the sustenance of Nigeria’s democracy; how in the face of the cumbersome process for constitutional amendment, the court can develop some jurisprudence to ensure that our federal system is invigorated; or given the recent Onnoghen saga, how discipline for judges and justices can be properly structured without throwing the entire judiciary into crisis or turning breaches of their oaths of office into what politicians can use as political campaign scripts or talking points. And as Senator Abaribe queried, how can the public regained confidence in the courts given the legion of technicalities upon which the substantial justice of cases are routinely defeated.

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I did a quick research on Justice Muhammad’s legal opinion on the issue of technicalities. It is on record that His Lordship gave a concurring judgment in Omoju v FRN (2008) 7 NWLR (Pt. 1085) 38 to the effect that: “Gone are the days when adherence to technicalities would help a counsel succeed on a bad or indefensible case. We must always subscribe to doing substantial justice as against technical justice.” Justice Muhammad is quite familiar with the issue raised by Senator Abaribe. I am sure that His Lordship must have delivered lead judgments expressing the same view on technicalities in consonance with the long line of cases by the apex court urging in favour of doing substantial justice as against technicalities. However, how and why the response given in the course of that confirmation hearing veered into the analogy of possession of technical know-how “to driving an aeroplane” will forever etch His Lordship’s name into the consciousness of many of us. Unlike President Ford on Justice Stevens, it is doubtful if President Buhari will one day look back and plead that we judge his current term in office by his appointment of Justice Muhammad as CJN.

And this brings me to my grouse with the entire processes of judicial nominations for the headship of our various courts and the role of the National Judicial Council. The Ag CJN was recommended for the appointment by the council; even though it is a common knowledge that he is the chair and its statutory head. I believe that there is something fundamentally flawed with that. There is nothing to my knowledge which prevents the President from nominating any person to the office but it is clear that the entire set up we operate makes that to be impossible. Historically, before the current dispensation, the appointment to the office of CJN is the prerogative of the President. In 1959, the most senior indigenous Nigerian on the Federal Supreme Court was Sir Olumuyiwa Jibowu. Jibowu was bypassed by the government and Sir Adetokunbo Ademola was selected as CJF (later to be restyled CJN) and he was in the saddle till 1972 when he was succeeded by Dr. Taslim Olawale Elias, the former Attorney General of the Federation. Sir Arthur Darnley Alexander took over in 1975 having been poached from his role as the Chief Judge of the old South-East state. Justice Alexander was not even a Nigerian but he was found to be suitable for the position. Even if it is admitted that that was during the heydays when the military in charge of our national life, it reflected the practices elsewhere like in the United States where it is not uncommon for persons without prior judicial background to be appointed into their apex court as justices, for instance, Thurgood Marshall in 1967, or as the Chief Justice for instance when former president Charles Howard Taft was nominated by one of his successors to become the Chief Justice. Such an appointment was always aimed to reflect some feelings and concerns of the appointor as to the direction or the needs the court is to address.

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In the last 15 years in Nigeria since the exit of Justice Muhammadu Lawal Uwais as the CJN, we have formed a patterned of the next most senior taking over, senate confirmation usually being a mere formality once the nominee was recommended by the NJC. The NJC is not perturbed about the suitability or not of such persons. The net result has been a rapid turn over rate for CJNs that we now have permutations and calculations as to those who might one day get the plum job by cheer stroke of when they first got appointed into the court and their age relative to their peers going into their mandatory age for retirement from the bench. It is high time we query the role of the NJC in a federal system like ours.

We recall with nostalgia the Supreme Court of Nigeria that boasted the likes of Justice JIC Taylor who selflessly took a step down the bench to become the Chief Judge of Lagos upon the creation of Lagos State in 1967. Similarly, like the famous Lord Denning in England who returned to the Court of Appeal to become the Master of the Rolls, Justice Dan Ibekwe stepped down to help in providing leadership for the newly established Federal Court of Appeal in 1976. The basic consideration was fitness for the role rather than seniority by default of date of appointment. The evil this assumption of office as Chief Judge through seniority has wrecked especially in our various High Courts of States cannot be exhaustively discussed here. It is certainly a cause for alarm as recently attested to by the travails of Justice Karatu in Kebbi State.

Thus, given the need for the judiciary to be properly led and to inspire confidence in all and sundry, it is important that we re-examine the modalities for judicial nominations into our various courts and especially their headship. We have been retrogressing given the recent history of the process. Right in this country not long ago, our law lords are respected as living oracles whose words inspired confidence. Pick up the law reports and read the brilliance of our eminent jurists and compare that to what we have today. We can still save the day even in spite of the seeming hopelessness. We only need to try.

Ajadi (elliasajadi@gmail.com) is a senior associate at Wale Taiwo & Co., Magodo GRA Phase II, Shangisha, Lagos.

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