Mazi Afam Osigwe, SAN
With the many announcement of vacancies in the superior courts of many states and federation, I think it is a good time to constructively review the mode of appointing and training judicial officers.
The general perception is that appointment of judicial officers in Nigeria is influenced by politics, personal connections or status. Merit, it is believed plays a minor role. The mode of appointment of judicial officers is generally described as lacking in objectivity, transparency, prone to political interference and not open. In the communiqué issued at the end of its Annual General Conference held in Port Harcourt in 2011, the Nigerian Bar Association observed there are a lot of Legal Practitioners in Nigeria who are not only honourable, patriotic, transparent, hardworking and incorruptible but also fit and proper for appointment to the Bench and elevation to the Higher Bench but are bypassed on account of mundane and mediocre considerations especially the fact that they should allow those who have “laboured and suffered” on the bench to benefit from such appointments. After all, it is said that these private practitioners have been enjoying themselves!
If indeed it is based on connection, as many believe it is, it can only lead to the involvement and or interference by non-judicial or legal actors in the process. The involvement of politicians in the appointment will no doubt ultimately lead to interference by these individuals in the judicial process. Such interference will be wrongly justified as repayment of favour. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.
The mode of appointment of judicial officers as well the mode of their removal is a major challenge facing the judiciary. In a bid to curtail some of these perceptions about the mode of judicial officers, the National Judicial Council (NJC) issued the Revised National Judicial Council Guidelines and Procedural Rules 2014. The Revised Guidelines in essence seeks to ensure openness, competitiveness, merit and transparency in recruitment processes as well as safeguard judicial appointments from being lobbied and politicized.
As noble as the new Guidelines is, there is still doubt about full compliance with its provisions. In fact in a recent exercise for the appointment of judges for a High Court was faulted as being opaque and exceeding the number of judges approved for appointment. It was also that the NJC some of the persons appointed did not met the requirement for appointment and a person who did not apply or participate in the process was recommended for appointment by the NJC.
Two methods of appointment of judicial officers can be discerned from the Constitution of the Federal Republic of Nigeria 1999 (As Amended). First is the appointment on the advice of the NJC and subject to the Senate or House of Assembly as the case may be. The Second appointment is on the advice of the NJC and no confirmation is required either by the Senate or House of Assembly.
Discretion is vested on the President or Governor, while they cannot appoint a person who has not been recommended by the NJC, they are not bound to appoint a person in respect of whom a favourable recommendation has been made and this has led to politicking as in the case of Rivers and Cross Rivers State where the politicisation of the Chief Judge of the state led to the grounding of judicial activities in Rivers State for about a year between 2015-2016.
There is wide-spread belief that judicial appointments at the State level are often based on political affiliation and political accounts are taken into consideration on the case of recommendation. The composition of the Judicial Service Commission (JSC) is usually skewed in favour of political consideration. More often than not the Governor’s nominees in the JSC are used to block certain potential judicial officers who are seen as ‘enemies’ of the State Governor or whose nominations are not in line with the interest or wish of the Governor.
I am not to be understood to suggest that the involvement of the executive and or the legislature in the process leading to the appointment of judicial officers affects the independence per se. The IBA Minimum Standards in this regard provides that “participation in judicial appointments and promotions by the executive or legislature is not inconsistent with judicial independence, provided that appointments and promotions of judges are vested in a judicial body in which members of the judiciary and the legal profession form a majority”. My view therefore is that the power of the head of Court or a Governor, to nominate some of the persons involved in the process sometimes have an adverse effect on judicial appointment process.
I have read so many comments and criticisms which all go to show that the public yearns for a massive reform of the judiciary, particularly in regard to how appointments are made to the superior court and appellate courts. Like well-meaning citizens I believe that I should contribute to the discourse by sharing what I consider pragmatic reforms. I strongly believe the prospects of effective justice delivery will be enhanced if we can implement these recommendations some which were made by the NBA:
- Those who apply for appointment as judicial officers especially to the High Courts, Federal High Court and National Industrial Court should be subjected to written tests conducted by an independent body. The results of such exam should be published within 6 (six) hours of the completion of the same. Such examination should not only test their knowledge of the law, but equally test their verbal and quantitative aptitude. Thus, the tests should be structured in manner that enables the prospective judicial officers to show their legal writing, comprehension and legal reasoning skills.
- Judicial appointment processes should be reformed to focus on skill, professional and technical ability, in addition to integrity and personality.
- Appointments into the Bench at whatever level, the Higher Bench especially, must henceforth be predicated upon merit and the concurrent recommendation of the Bar. The recommendation must be based on discernible and objective criteria which considers factors like high professional integrity, reputation, sound knowledge of law etc. This is to ensure that only quality people are appointed as Judicial Officers and that corruption and lack of competence are reduced to the barest minimum.
- The Chief Justice of Nigeria (CJN) shall no longer appoint some other members of the NJC.
- The provisions of Paragraph (i) 20 (i) of the Third Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which preclude all NBA nominees on the NJC from dealing with judicial matters other than appointments into the superior courts of record (i.e. only one item out of thirteen) is certainly discriminatory and unwarranted and should be out-rightly amended. (After all Judges play prominent role in the disciplining of lawyers);
- As a result of over concentration of powers in the office of the Chief Justice of Nigeria by the 1999 Constitution, the CJN should cease to be the Chairman of the NJC and all other similar constitutional and statutory bodies. Particularly, the Chief Justice of Nigeria should not be the Chairman of the Federal Judiciary Service Commission (FJSC) which recommends persons to the National Judicial Council for appointment as federal judicial officers and in turn be the Chairman of NJC which considers the suitability of recommending such persons to the President of Nigeria for appointment as judicial officers.
- Any suitable Nigerian with requisite experience, impeccable records of service and competence (like a retired Justice of the Supreme Court, former President of the NBA, Professor of Law, or any legal practitioner etc) could be appointed as Chairman of FJSC and NJC for only one term of five years;
- Successive leadership of the judiciary should be trained on leadership, supervision, delegation, mentoring, coaching and human resource management as well as to ensure that relationships between Bench & Bar as well as amongst judicial officers are characterized by mutual respect, dignity, tolerance, civility, discretion, good humour, maturity, calmness, wisdom, transparency, tolerance and propriety, hallmarks of the esteemed learned profession;
- The assignment of cases to judges should be automated to ensure that all civil and criminal actions are assigned by a random selection process in order to ensure equitable distribution of caseload and avoid judge shopping. Each court should have a written plan or system for assigning cases. The method should provide for assignment of cases to judges who have special expertise in some areas of law. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case. Where an automated system is used a judge should be able to carry out such conflict-check and return any case he/she may have a conflict in.
- To improve judicial professionalism, the mode of continuing judicial development (retraining) must be addressed. To help improve the professionalism of judges, the use a state by state judicial academy whose mission would be to train them should be considered. The present system of having a National Judicial Institute for the training of judges in Nigeria has not achieved the desired results. It would also appear that the idea of having a large number of judges in an auditorium for purposes of ‘training’ them is not as productive as it should be. The training modules for judges should be developed for use in training smaller number of judges within their respective states. A model which does not cause large scale disruption in the sitting of judges should therefore be developed.
- The Courts must ensure that cases bordering on corruption, financial and economic crimes, violation of human rights are dealt with expeditiously to instill public confidence in the fight against corruption. To this end, the court must ensure that recourse to unnecessary technicalities are avoided or out-rightly rejected.
- Acquisition of IT skills by Lawyers, Judges, Litigants, Court Officers (i.e. Clerks, Registrars) and other stakeholders must be made mandatory. In doing this, it is essential to incorporate acquisition of information communication technology (ICT) into various programs organized both by the Nigerian Bar and the bench. This is achievable, for instance, through the inclusion of same as one of the courses to be taken during the mandatory continuing legal education. The electronic system should also be user friendly, that is, it should not be cumbersome to operate. This can be done by putting in place online help centers that will help in providing answers to frequently asked questions.
- There is need for amendment of various laws and courts’ rules to accommodate electronic method in conducting activities in courts: filing and services of processes as well as hearing of matters and applications. A lot can be learnt from South Korea and other developed countries which have fully embraced electronic method. At this point, I will not fail to commend the efforts of the drafters of the new Court of Appeal Rules (2021) for including electronic filing and electronic transmission of records of appeal in the new rules in order to encourage the use of ICT in the swift delivery of justice. Electronic method can be made less expensive, by way of financial incentives, which will attract people to adopt the system. In Korea, court’s fees were cut down by 10% for lawyers who use electronic filing. Although, Lawyers and court’s officers who are fond of unwholesome practices and benefiting from vices associated with the conventional method may be reluctant in towing this path. To prevent abuse of the method, the users should be provided with accreditation number having registered online and obtained personal identification number (PIN), which can be renewable upon payment of annual practicing fee as prescribed by the Nigerian Bar Association and/or relevant regulatory bodies This will lay to rest the argument on whether or not court’s archives can be accessible by every tom and harry.
- The courts must be properly equipped with modern facilities to be able to fast-track the determination of corruption related cases and indeed understand the modus operandi of persons accused of cases of corruption.
- The Rule of Law must prevail in Nigeria and the NBA shall keep a vigilant watch to ensure this at all times;
- The Federal and State governments should ensure that the constitutional financial autonomy given to the judiciary is given effect so as to avoid such adverse effects as ‘poor and inadequate judicial infrastructure, low morale among judicial personnel, alleged corruption in the judiciary, delays in administration of justice and judicial services delivery and general low quality and poor out-put by the judiciary.