Getting Judicial Officers’ Appointment Right

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Eric Ikhilae’s reports.

It is gradually becoming a tradition. The frequency with which the announcement of judicial officers’ appointment generates controversy is becoming habitual in recent time.

Last year, when the National Judicial Council (NJC) made public a list of nominees for appointment as judges, hell was literally let loose. Petitions flew from right and left, with many querying the rationale for the choices made.

A group, the Open Bar Initiative (OBI), in its petition, urged President Muhammadu Buhari not to approve the list of 33 candidates recommended to him by the NJC on April 26, for appointment to the High Court of the Federal Capital Territory (FCT).

OBI claimed that no fewer than 17 of the lawyers recommended for appointment were unqualified. It added that the NJC’s recommendation was flawed and should not be allowed to stand because “the selection process violated the NJC’s laid-down rules and procedures and was fraught with judicial insider dealing, which risks turning the judiciary into an instrument for advancing narrow personal interests and patronage.

“Out of the 33 candidates recommended, at least 17 were unqualified, according to the NJC’s own rules and standards. On the basis of our own checks, nearly all of the unqualified nominees got on the list for appointment on the basis of their relationships or affinity by blood or marriage with serving or retired senior judicial figures.

“At least one candidate did not apply for the job and did not participate in the interview or selection process but was smuggled into the list for appointment after the shortlisting had been done. The suggestion that judicial service in Nigeria is an inheritance transmitted from parents to children is not supported by the constitution or any other instrument under Nigerian laws. This is manifestly an abuse of the high constitutional responsibility invested in those who must nominate judges for your appointment.

“Additionally, these appointments could violate the requirement of federal character. For example, Ebonyi State, which has no indigene on the FCT High Court, has also been denied any nominee in this current round of nominations but several states, which already had judges on the FCT High Court got two nominees, including Adamawa, Benue, Delta, Jigawa, Kano, and Kebbi states.”

In resolving the controversy generated, President Muhammadu Buhari, in July 2020, accepted only 11 out of the 33 recommended for the High Court of the FCT by the NJC,  who were eventually appointed.

The current controversy

As if no lesson was learnt, the recommendation by the NJC for the appointment of justices for the Court of Appeal has ignited another round of controversy. Immediately a list of nominees became public earlier this year, groups and individuals began raising varied issues.

The President of Nigerian Bar Association (NBA), Olumide Akpata, reportedly lamented, while speaking at an NBA meeting in Uyo, Akwa Ibom State, the shoddy nature of the screening exercise done at the NJC.

Akpata later faulted that account of events, claiming to have been misrepresented by a member of the NBA National Executive Council (NEC), who was credited with the report.

A group, the Southern and Middle Belt Leaders Forum (SMBLF), is concerned that the majority of the nominees are Muslims from the North, which does not in any way reflect the fact that Nigeria is multi-ethnic and multi-cultural.

SMBLF noted that 13 of the 20 nominated judges are from the North, including three Sharia judges, and wondered whether there is no Christian judge at all from the North and the Middle Belt, who could be considered for elevation to the appellate court.

Another group, the Global Integrity Crusade Network (GCIN) raised a petition, which it addressed to the Chief Justice of Nigeria (CJN), demanding, among others, the cancellation of the appointment process. A third group, the Alaigbo Development Foundation (ADF), led by Prof Uzodinma Nwala, argued that the choice of nominees for the Court of Appeal this time was meant to deny the Southeast its quota in the Court of Appeal based on the principles of Federal Character as enshrined in the constitution.

ADF argued that: “It is very unjust and unfair for only one justice to be appointed from the Southeast out of 20 justices that are being appointed from the six geo-political zones, whereas the other zones were allocated as follows: North-West (8), North-East (3), North-Central (2) South-West (4), South-South (2)”.

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The Christian Association of Nigeria (CAN) also questioned the composition of the list of nominees, accusing the Federal Judicial Service Commission (FJSC) of being insensitive to the reality of religious diversity in the country, alleging a gradual process at Islamising the nation’s judiciary.

Court of Appeal’s President defends process

Bothered by the barrages of criticism, which threatened the integrity of the entire process and, by extension, the judiciary, the President of the Court of Appeal, Justice Monica Dongban-Mensem, addressed the issue, faulting claims that the process of appointing justices for her court was being manipulated to favour certain individuals.

In a statement, Justice Dongban-Mensem insisted that those behind the false claim were interested in destabilising and scandalising the judiciary. She urged Nigerians to disregard such a false claim.

Justice Dongban-Mensem, who is from Plateau State, said: “A total of 80 nominees were shortlisted and recommended for the appointment of 20 justices to fill the existing vacancies. I state on my honour that any of the 80 nominees could be appointed.

“It is unfortunate that some people have elected to go to the press without hard facts which are readily available to those who seek to know. I hereby state that the current recommendation pending determination by the National Judicial Council (NJC) was done without any preference for tribe, creed or association.

“If there were sufficient vacancies to be filled, all the nominees would have been recommended. I hereby totally disassociate myself from those who are insinuating that I had a list of preferred candidates based on tribe or religion. This is clearly the handiwork of detractors who want to destabilise and scandalise the Judiciary,” she said.

Although the NBA President has denied what he was reported to have witnessed during the screening exercise, and that the NJC, last week, forwarded its list to President Buhari, the agitation over the quality and choice of those nominated this time has persisted, with critics unwilling to back down.

Before now

Unfortunately, doubt about the level of objectivity and altruistic inclination of those saddled with the process of judicial officers’ appointment is on the increase today. This development may have been fuelled by the perception by some that the Buhari-led administration sometimes promotes primordial considerations in public appointment, which has, by its decisions, elevated nepotistic, ethnic and religious tendencies above the constitutionally enshrined Federal Character principles, and at the expense of competence.

Before now, the concern was about the quality of persons so appointed, not ethnic, political and other mundane considerations. People were concerned about the increasing influence of politicians and like minds in the process of judges’ appointment, insisting on the need for a process that ensures that the best makes it to the Bench from the Bar.

Mandatory tests for applicants for judicial office

This position gave rise to the suggestion that consideration should be extended to those outside the Bench when appointments for the appellate courts’ benches are being considered.

Vice President Yemi Osinbajo (SAN) stressed this point while contributing to a webinar put together by a law firm, with the theme: “Developing an Institutional Concept of Justice in Nigeria.”

Osinbajo argued in favour of the need to reform the process of appointing judges in the country to ensure that the best and most suited are appointed.  He said: “We must take a second look at the appointment of judges. The merit-based system is necessary. We need to do mandatory tests for them. We need to look at how our judges are selected.

“It is not enough to rise through the ranks in the judiciary with judges going to the Supreme Court from the Appeal Court. We must be able to bring in practising lawyers and the academic to become judges. We owe it to ourselves to change the rules. Change is necessary and reform of our Judiciary process should be urgent.”

Another Senior Advocate of Nigeria (SAN), Wole Olanipekun, who also participated in the event, echoed a similar position when he expressed discomfort about the current practice whereby judges of the appellate court were being appointed based on promotion.

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Olanipekun said: “I  reckon that judges can be appointed from the academia and the Bar and not just based on promotion from one court to another.”

CJN prefers status quo

Before he was compelled to step down, the then Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, had commenced a process to appoint established lawyers as justices for the appellate courts. The impression then was that he planned to experiment with the Supreme Court.

That plan died immediately the incumbent CJN, Justice Ibrahim Muhammad, took office. Justice Muhammad has not always been diplomatic about his aversion to such a plan. To him, appointing judicial officers for the appellate court from the Bar would work a disservice to those who chose to commence their career from the lower benches.

The CJN spoke his mind on this issue at the annual conference of the Justices of the Court of Appeal, where he said although there was pressure and calls for a review of the current appointment process that gives priority to career judges and justices, he was not ready to yield ground on the matter.

Justice Muhammad told the gathering: “I wouldn’t want to say much on the process of selecting Justices from the Court of Appeal to the Supreme Court. But one thing on which I am positively assuring you, although there is a lot of pressure, is that we will retain the old regime.

“Those of us who passed through the Court of Appeal spent a number of years in the Court of Appeal, and we had a lot of experience and created a lot of relationships in the Court of Appeal. We will feel slighted if we are made to take anybody straight from outside.

“I don’t know. There are a lot of calls, a lot of insistence that we should take a look at the process we currently use in appointment to the Supreme Court and that we should not concentrate on the Court of Appeal alone. I say no.

“But, maybe it is because I am biased because I am a son of the Court of Appeal and I know the number of years that I spent in the Court of Appeal. And I know the experiences I gathered in the Court of Appeal. I know the number of Justices that I met and made friends within the Court of Appeal, and we still telephone each other till today,” he said.

The CJN said he was not, by his position, denigrating practising lawyers, but that it would be an act of injustice against career judges and justices who have committed years to the Bench and have no other options, like practising lawyers have.

“This is somebody who has followed through the line. For example, myself. I started as a Magistrate Grade II. Going up the ladder, I wouldn’t want the authority to forget those of us who have been around.

“You grew up from the magistracy, rising through the ranks, and then they say we are not taking candidates for the Supreme Court from the Court of Appeal; we are taking from among the practising lawyers.

“We are not denigrating the practising lawyers. That is why I said let’s call a spade a spade. A practising lawyer may have a lot of openings. Tell me: what are your openings? What is the way forward for you? Please, let’s put our heads together. Don’t entertain that kind of thing.

“As far as I am concerned, the Supreme Court is the last stage. Any one of us who grew up with the system and has continued to grow, why stagnate him? We know that it is not every one of us that will get to the Supreme Court. That is destiny.

“If somebody is brought from outside, it will take time to train such a person to fit in. I am with the old regime that we should train those who are already on the line. If you want to be a judge, you should join at the High Court; most of them do not want to join at the High Court. That is the best place for you to start.

“I don’t think it will be the right thing to appoint somebody straight to the Court of Appeal, because you have to train and teach him/her,” he said.

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Agbakoba: Make appointment process fully transparent

Despite the disagreement about the process of appointment, stakeholders are, however, united that a well-constituted Bench, made of quality and independent minds, not besotted to extraneous forces and interests, would work to ensure, not only a better Judiciary but a better nation.

A former President of the NBA, Olisa Agbakoba (SAN) has suggested that a way to ensure the appointment of quality judges was the adoption of the recommendation of a committee led by former CJN, Justice Dahiru Musdapher.

Agbakoba was recently quoted to have said: “In order to remove these challenges, simply make the appointment process fully transparent as recommended by the high-level committee set up by Chief Justice Dahiru Musdapher.

“The committee comprehensively reviewed the justice sector and recommended a root and branch transformation of the judicial process. I was very honoured and privileged to be part of that committee.

“Unfortunately, on the voluntary retirement of Mr Justice Dahiru Musdapher, who became one of the great reformers, everything came to a screeching halt. My suggestion is that the Dahiru Musdapher recommendations be implemented immediately,” Agbakoba said.

Ozekhome: subject applicants to rigorous, thorough scrutiny

Another lawyer, Mike Ozekhome (SAN) warned that a faulty process of judges’ appointment was not beneficial to the Judiciary and the country, noting that a shoddy screening of applicants for any position in the Judiciary would lead to shoddy results.

Ozekhome added: “Shoddy results lead to a shoddy Bench. A shoddy Bench leads to a shoddy justice delivery system. A shoddy justice delivery system leads to miscarriage of justice. Miscarriage of justice leads to injustice. Injustice leads to anger. Anger leads to violence. Violence leads to destruction. Destruction leads to insecurity. With insecurity, our dear nation is imperilled. It’s a never-ending cycle of misfortune that can be avoided by doing the right thing.”

He said a functional system that subjects applicants to rigorous and thorough scrutiny was necessary to ensure the emergence of a virile, independent and courageous Judiciary, peopled by men and women of courage, integrity, honour and dignity.

Akinwunmi: NJC must set clearly defined criteria

On his part, Babs Akinwunmi, an Abuja- based lawyer stressed that appointing competent judicial officers was important for the safeguard of the principle of rule of law and the dispensation of justice.

Akinwunmi argued that the process of appointing judicial officials should always serve as a veritable platform to identify persons who possess the highest standard of intellectual abilities, moral qualities and practical skills.

“These are all the qualities required in a judicial officer. Thus, this process should be well guided and seen by all to be transparent, in order to sustain public confidence in the judiciary. Therefore, they should set clearly defined criteria and process that is known to all and sundry, probably etched in a document that is accessible to all. The process must be seen to be transparent by stakeholders. This will imbue confidence in people and would not attract any uproar,” Akinwunmi said.

Falola: NBA should screen applicants for judicial office

Another lawyer, Tunde Falola urged the President (who is the appointing authority in the case of justices for the appellate courts and other federal courts, and who acts on NJC’s recommendations) to ensure fair and equal representation, in terms of the geographical diversity of the country and strict adherence to the Federal Charter Principles as enshrined in the Constitution.

Falola argued for the NBA to be given constitutional responsibility to screen applicants seeking appointment as judicial officers, adding that since part of the constitutional requirements to be appointed a Justice of the Court of Appeal include being a legal practitioner of not less than 12 years post-call, the NBA should be allowed to recommend and screen its members, who aspire to be so appointed.

“This will promote transparency, competence and ensure that members, who have integrity crisis do not get to the Bench. Doing this will also have positive impacts on the administration of Justice in Nigeria. Since the Appeal Court plays a pivotal role in the efficient administration of Justice in Nigeria, an intending applicant to this court must be a legal practitioner, who is worthy in character and in like manner. His/her appointment must be devoid of any extraneous, parochial or political considerations,” Falola said.

The Nation

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