HomePublicationExamining FG’s Harmonization of Retirement Age for Judges

Examining FG’s Harmonization of Retirement Age for Judges

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In  this report, Vanguard’s Law & Human Rights examines a bill signed into law by President Bola Ahmed Tinubu on June 8, 2023, unifying the retirement age of judges of superior courts of record in the country, with a survey of the stakeholders on the desirability of the legislation and argues that though the legislation is not without its merits, yet the relevant authorities appear to have put their cart before their horse.

Background

By the stroke of a pen, President Tinubu signed into law a bill unifying the retirement age of judges of superior courts in the country.

Until now, section 291 (1) and (2) of the 1999 Constitution provides that state and federal high court judges must quit the bench once they clocked 65.

Similarly, judges of the National Industrial Court and Sharia and customary courts of appeal must retire at 65.

But judges of both the Court of Appeal and the Supreme Court can remain on the bench till they are 70.

Why constitution drafters pegged retirement age of high court judges at 65, appellate court justices at 70—Legal pundits

The law on the retirement age of judicial officers in the country has remained so since May 29, 1999 when the constitution itself was signed into law.

Legal pundits have however explained that the disparity that existed in the retirement age of trial high court judges and the justices of the appellate courts, as captured in section 291 of the 1999 constitution, was not without reason.

It is their view that the drafters of the 1999 constitution pegged the mandatory retirement age of trial high court judges at 65 years because there is a much greater physical, mental and cerebral challenge required as a trial court judge than appellate court judges who are to retire at 70 years.

For instance, a popular Delta lawyer and activist, Dr. Akpo-MudiagarOdje, explained that high court judges are usually saddled with investigating and discovering the rectitude of truth of a case brought before them, listen to evidence of the parties before them, including cross-examination, write manually,and usually deliver series of rulings on objections arising from interlocutory issues as the case may be, before they deliver judgment.

He said the trial court therefore needs a judge that will be, first of all, physically fit and mentally sound to preside over proceedings relating thereto.

Whereas, legal pundits said the job specification of appellate court justices is not as tasking as those of high court judges because they are merely saddled with reading through the records of appeal as compiled, which usually includes all relevant documents, pleadings and judgement delivered by the trial judge.

Aside from the fact that appellate court judges are not involved in taking evidence from parties as it happens at the trial court level, for each case that comes before the appellate court, Akpo-Mudiagar, also explained that there are, at least, three justices who assist one another at the Court of Appealto hear an ordinary appeal and five justices sit together on constitutional matters while at the Supreme Court level, there is a minimum of five Judges at all times to hear ordinary appeals, and seven Justices on constitutional matters.

He said while a frail looking appellate Ccurt judge can still participate or preside over hearing and determination of an appeal by entering a two, three-paragraph concurring verdict to the lead judgment or ruling of the court, same cannot handle a trial court matter because of physical rigours required to ascertain the truth before that court.

He added that in other climes like the United States, appellate judges, at a point, were even allowed to hear appeals at 90 years but same was not applicable to trial court judges in the same clime because of the high demands of sitting as a trial high court judge.

“In an Appellate Court, more of mental compos mentis and cerebral alertness is required to hear and determine appeals, whereas at the trial courts, both mental compos mentis and physical soundness must be possessed contemporaneously by the judge,” Dr. Akpo-Mudiagar argued.

But with the new bill signed into law, all judges of superior courts of record from the high court, the Appeal Court to the Supreme Court now have a uniform retirement age of 70 years.

The legislation which appears not to have taken into consideration the nature of the task before the trial high court judges is expectedly generating mixed reactions.

History of the bill increasing retirement age of high court judges to 70 years

Vanguard reports that sometimes in July 2020, the Chairman of House Committee on Judiciary, Mr Onofiok Luke sponsored a bill to alter the provision of the 1999 Constitution with a view to increasing the retirement age of judicial officers at the trial high court from 65 to 70 while those at the appellate court would have their retirement age increased from 70 to 75 years.

The explanatory memorandum of the bill explained thatthe legislation wasto secure judicial independence, protect judicial officers from pressure, and promote experience and quality in justice delivery in Nigeria, and for related matters.

Vanguardhowever learnt that though the bill was sponsored by Hon Onofiok, some state chief judges were allegedly said to be the personages behind the legislation even though justices of the appellate courts were also to benefit, at the inception, from the increment

However, the lawmakers, after heated debate spanning more than two years, at both chambers of the National Assembly agreed to increase only the retirement age of trial high court judges without touching the mandatory retirement age for judicial officers at the appellate courts.

According to OmoAgege, the bill represented one of the key elements of the Ninth Senate legislative agenda to reform the judiciary because having a uniform retirement age for the Judiciary would remove the backlog of cases and ensure speedy dispensation of justice.

The Senate President, Ahmad Lawan also expressed delight over the development saying the legislation would be part of the 9th National Assembly’s legacy.

AGF Malami opposes bill

Although the National Assembly had since May 2, 2023, directed its clerk, Amos Ojo, to transmit the bill to former President Muhammadu Buhari for assent, the immediate past Attorney-General of the Federation, Abubakar Malami, SAN, advised Buhari to decline assent to the bill.

In a memo dated May 23, 2023, and addressed to the Office of the Chief of Staff to the President, Malami said the bill appeared to be “far-reaching, unduly wide, ambiguous”, adding that it made no “justification” for the extension of retirement age and benefits for judges.

The former AGF said the bill if approved, might lead to further agitation for the extension of the retirement age of justices of the supreme court and the court of appeal.

The legislation divides legal community

While the legislation is popular amongst some high court judges who spoke with Vanguard on condition of anonymity and few lawyers, majority of legal practitioners are, however, of the view that the legislation should be revisited in the interest of the nation.

Lawyers and judges who are in support of the legislation argued that with the increment of the retirement age of the high court judges, the justice sector would be better served with the wealth of experience of the judges who by virtue of the nature of their job, become more seasoned by age on the bench.

They also believe that it would discourage the idea of age falsification by some judges in an attempt to extend their stay in office, a ground for which a number of them, particularly at the High Court level, has been recommended for retirement by the National Judicial Council, NJC, in recent times.

But most of the top lawyers including former President of the Nigerian Bar Association, Mr. O C J Okocha, SAN, former Attorney General of Abia State, Prof. Awa Kalu, J. S Okutepa, SAN, who spoke on the matter, believed that the relevant authorities should have left the retirement age alone for sundry reasons.

Some of them also argued that if the lawmakers had consulted widely particularly the umbrella association of lawyers, the NJC, and other stakeholders, the legislation would have been better packaged.

According to Okocha, SAN, the legislation may not serve its intended purpose.

His exact words: “Personally, I have my disagreement with the legislation. You know, sometimes, there is what we call stagnation. Some of these judges in the high court have been there for ever, as they say. Some of them are only waiting to be retired. We must realize that age is a limiting factor on a man’s performance. The older you get, the weaker you become.

“And you know, at certain level and in certain institution, you need people who are vibrant, people who are, you know, not just mentally capable but also physically capable. I am not a doctor, the individuals concerned can actually tell you about the veracity of their conditions of health.

“But the decision has been taken by the National Assembly and the President has assented to it, let us see how it works,” he said.

Also commenting on the legislation, a respected member of the inner bar, J.S. Okutepa, SAN, argued that the legislation would have far-reaching negative consequences on the mind-set of both serving and aspiring members of the judiciary.

He specifically argued that the legislation would naturally result in stagnation of judges at the trial courts, while there would be diminished chances for lawyers to be appointed to the bench due to limited vacancies.

He also raised concerns about the increased powers of Chief Judges, whom he said might now exert dominance over their colleagues on the bench, potentially creating an environment of hierarchical control.

According to Okutepa, what the Nigerian judiciary truly needs is protection from interference, both political and otherwise, to carry out their judicial functions effectively and addressing the unsatisfactory state of judicial facilities in Nigeria which has hindered the delivery of quality justice, with many judicial officers silently suffering.

Okutepa’s submission was on all fours with the position of the irrepressible social critic, human and civil rights lawyer, Chief Gani Fawehinmi, SAN, who had opined during his days, many years back, that the relevant authorities should focus on the welfare of serving judges rather than increasing their retirement age to get the best from them.

According to him, “the hardship that are continuously encountered by judges of all categories are all clear for everybody to see. Trial judges take evidence in long hand, conduct researches and write judgments, most times without the aid of well-equipped libraries. In the end, some of them die as quickly as they retire.

“No wonder, Justice Olusola Thomas who retired as Chief Judge of Lagos State on November 27, 1996 at 65 died on June 6, 1999 less than 3 years after he retired. Justice Roseline Omotos who retired as the Chief Judge of Lagos State, also died less than three years after she retired. The same unfortunate death befell Justice Fernandez, who retired at the age 65 years and died shortly after.

“Some of our judges die in office under circumstances that are related to the barbaric conditions in which they work. Justice C Idigbe of the Supreme Court –one of our best justices died in office at the age of 59 years. Justice Augustine Nnamani—the erudite intellectual of the Supreme Court died on September 22, 1990 at the age of 56 years. Justice Ligali Ayorinde, Chief Judge of Lagos State died at the age of 64 years. Justice John Conrad Taylor, one of the most courageous judges died at the age of 56 years. Justice Adeniyi Adefila of Borno State High Court, died on July 7, 1998 at the age of 60 years and Justice Yekinni Adio of the Supreme Court died in office on July 8, 1997 after a brief illness. They all died in office.

“Sadly today, some judges have strokes while in service. Judges are confronted with avoidable trauma, stress and strain while trying to dispense justice unlike their colleagues in some other countries where conditions for dispensation of justice are just simply good, very comfortable and progressive,” he lamented even as he wondered why government had perpetually failed to attend to their welfare.

Prof Kalu, SAN, was also of the view that the legislation might not achieve its intended objectives.

From the totality of the submissions by stakeholders on the legislation, it appears that the Federal Government really had good intentionby increasing the retirement age of high court judges except that it should have addressed the welfare of serving judge and the infrastructural deficits of the nation’s court first so that it would not seem that it has put its cart before its horse.

Vanguard

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