By Afe Babalola SAN, CON
As the strike called by JUSUN enters its eight week and following reported breakthrough between the Union and State governments in talks aimed at ending the said strike, it is imperative to comment on some paramount issues affecting the Nigerian judiciary, particularly with regards to the appointment, remuneration and promotion of Judges.
The appointment of judicial officers
In the 60s when I began the practice of Law, appointment to the Bench was strictly on merit. At that time, appointments were by invitation, after, at least, 10 years in practice. Sitting Judges were always quick to identify Legal Practitioners who possessed sterling qualities suitable for appointment to the Bench. Aside from sound knowledge of the law, integrity and honour marked out and propelled many Judges appointed in those days to the Bench. However, this was made possible by the 1963 Constitution which was in force at the time. Under this Constitution, the procedure for the appointment of the Justices of the Supreme Court, as well as a Judge of the High Court of Lagos, are similar – the President appoints, acting on the advice or recommendation of the Prime Minister. Though this procedure seems simple, it was yet effective and notorious for producing the most qualified and best-suited judges on the Bench. This system effectively obviated a recourse to political affiliation, nepotism or favouritism in the appointment of judges which, no doubt, has characterised the appointment mechanism today. Undoubtedly, the provision of the 1999 Constitution as to the appointment of Judges and Justices deeply encourages the politicisation of this hallowed position. A Justice of the Supreme Court now has to be appointed by the President on the recommendation of the National Judicial Council, subject to the confirmation of such appointment by the Senate; thereby making the process more politically inclined and easier to manipulate to suit the whims and caprices of the political class.
Comparatively, in some states in the United States of America, the appointment of judges is not totally in the hands of either the Governor or the legislature, but in the hands of the electorates. For instance, in Pennsylvania, an election was held on May 18, 2021 whereby judicial hopefuls were elected into office through partisan, state-wide elections, rather than being selected on merit by the Judicial Commission, or by the governor or legislature. At the moment, appointment to the Nigerian Bench is seen by many as an easy way out from the demands of private law practice. Some even aspire to the Bench to enjoy the perquisites of judicial office without giving adequate thought to the demands and responsibilities of the position.
It is for this reason that I advocate for the appointment of judicial officers from Senior Advocates of Nigeria, just like in the United Kingdom where members of the Queen’s Counsel may be appointed as judicial officers. This reminds me of Mrs. Safiya Badamasi Umar of Katsina State who was conferred the rank of Senior Advocate of Nigeria in 2019, and was sworn in as a Judge of the Katsina State High Court in 2020. The Nigerian Judiciary certainly needs more judges to be appointed from Senior Advocates. However, for this to be so, there needs to be the conferment of more Senior Advocates and, in addition, more has to be done with regard to the remuneration of judicial officers. I will discuss more on the subject of remuneration shortly.
The elevation of judges into the Higher Bench
In similar terms, it is time to shift the paradigm of elevation of judges from the official Bar alone. There should be room for the appointment of judges and justices straight from practice to all levels of Courts. This is the practice in England where some distinguished lawyers have been appointed to the Bench. However, this will engender the conferment of the rank of SAN on more legal practitioners and better remuneration for judges to make the position more lucrative. In addition, there needs to be a review of the process of appointing High Court judges from the magistracy. Magistrates should be encouraged to stay at the Lower Bench and not necessarily seek elevation to the High Court. This will create a whole lot of stability in the appointment, retention, and performance of Magistrates in Ekiti State. However, there is a need to increase the salaries and entitlements of magistrates in order to make the position more lucrative; and, of course, to ensure that their entitlements are promptly paid.
Generally, the age of appointment of judges in Nigeria calls for great concern. It is not only economically counterproductive but equally unreasonable to appoint judges who are close to the official age of retirement. There is no point in waiting till a person has attained the age of 55 before appointing him to the Bench. Younger Judges should be appointed in order to spend more years on the Bench and to allow that they develop the requisite skills and knowledge which will permit them to have longer, more productive years on the Bench.
Remuneration of judges
Remuneration and employment condition of judicial officers, as we may know, is nothing to write home about. To put this in proper perspective, I will consider the position in South Africa. The South African legislature enacted a Judges’ Remuneration and Conditions of Employment Act. Under this law, South African High Court, Constitutional Court and Supreme Court of Appeal judges have a 15-year tenure and where a judge who has attained the age of 70 years has not yet completed his 15 years’ active service, he must continue to perform active service as a judge till he attains the age of 75 years. In addition to ensuring the payment of attractive salaries and benefits to serving judges, there is a provision for continuous payment of salaries and gratuities to judges after discharge from active service. Also, there is a provision for payment of lifetime salaries to surviving spouses of judges, and gratuities for such spouses. By way of comparison, the pay of Nigerian Judges compares poorly with their foreign counterparts. At the rate of about N475 to a dollar, the following table demonstrably shows that Nigerian judges are the least paid:
In 2013, the then Lord Chief Justice of England, in his final annual report as Lord Chief Justice, expressed the fear that unless the pay of Judges was raised from its average of £175,000 per year (N43,750,000 (Forty-Three million seven hundred fifty thousand Naira) – at the then exchange rate of N250 to a pound) many top lawyers will reject the opportunity to become Judges. In his report on the matter, the MailOnline in its edition of 31st August 2014 stated as follows: “Britain’s top judge has launched a scathing attack on the decision to slash his colleagues’ pay, warning it has destroyed morale in the profession and risks compromising the quality of future recruits. Lord Chief Justice, Lord Judge, who is standing down from the role later this year, says sweeping salary cuts of as much as 60 per cent since 2011, allied to an increased workload, is seriously affecting judges’ state of mind. And he fears that unless pay is raised from its current average of £175,000 per year, top lawyers will reject the chance to become judges. In his final annual report, he said there was a growing gap between senior lawyers’ pay and that of Judges. Judges are also working harder, he said, no longer presiding over trials and hearings, but also involved in administrative and other duties. This combination of changes has lowered morale, which raised doubts about the ability to ‘recruit, retain and motivate sufficient high-quality people to the judiciary’.”
Furthermore, the fact that the appointment of High Court judges is made by the governor upon the recommendation of the National Judicial Council is one capable of abuse and therefore further eroding the independence of the Judiciary. From the clear wordings of Section 271 of the Constitution, the appointment of judges is made by the Governor. All that the National Judicial Council does is to recommend based on factors such as vacancies and suitability of candidates. Where the governor proceeds to make the appointment based upon the recommendation of the Council, the appointee may feel a sense of loyalty to the governor who appointed him.
It is clear, from the foregoing, that the time is ripe for a departure from the old way of doing things. In order to ensure a corruption-free, well-motivated, and justice-driven court system, a whole lot has to be done to reform the judiciary in its entirety. The Government must particularly act in a manner that suggests it is serious about independence of the judiciary. A situation in which the judicial arm of government yearly gets pittance in terms of budgetary allocation is not one that will portray Government in good light. Government may be perceived as punishing the judiciary for any perceived wrong doing and this will never augur well for the polity.
AARE AFE BABALOLA SAN, CON