The National Judicial Council’s (NJC’s) new list of judges for state and Federal High courts, among other levels of courts, has raised eyebrows from some members of the Bar. Senior lawyers have offered tips on how the process of judicial appointments can be made more transparent, writes ADEBISI ONANUGA.
The National Judicial Council (NJC) has approved the appointment of 70 judges to various courts. Four of the judges were appointed as heads of special courts. They are: M.B. Dongban (President of the Court of Appeal); Muhammad Salihu (Grand Khadi of the Sharia Court of Appeal, Jigawa State); Muhammad Usman (Grand Khadi, Sharia Court of Appeal, Sokoto State) and Aderonke Aderemi (President, Customary Court of Appeal, Oyo State).
Sixty-four were appointed judges of state and Federal Capital Territory (FCT) High Courts and two others as Kadis, Sharia Court of Appeal.
NJC Director of Information Soji Oye said the list was approved by the council at its 91st meeting held online. Oye said the NJC members considered the list of candidates presented by its Interview Committee and resolved to recommend the 70 successful candidates to their respective state governors for appointment as Heads of Courts and judicial officers.
The new appointees are expected to be sworn into office soon by their respective state governors.
How judges should be appointed
Judges of the Federal High Court are appointed by the President, and must have been qualified as legal practitioners for at least 10 years. Appointments are on the recommendation of the National Judicial Council.
Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution, as amended, empowers the NJC to recommend persons to be appointed justices and judges of the various courts.
Is the reality different?
However, the list of the newly-appointed judges, particularly those of Federal High Courts, has raised eyebrows from some members of the Bar.
Last Tuesday, a former Publicity Secretary of the Nigeria Bar Association (NBA), Abuja, Silas Onu, criticised the list in a statement entitled: “You’re welcome sir As Nigeria Gradually Dies From The Hands of Those it Fed”. According to him, it was “another reminder of everything that is wrong with Nigeria today,”
Onu faulted the composition of the NJC saddled with the responsibility of appointing judges and called for a reform of the council “through a constitutional amendment that will remove all serving and retired judges from the council.” He argued that their presence made the judiciary seem like “a family institution.”
Onu said the situation was similar with the conferment of the rank of SAN. To him, ”the rank is shared by a few in an effort to place their children above their peers undeservedly”.
He also faulted the appointment of 33 of the 64 approved for state and FCT High Courts.
“Apart from not meeting the minimum expectation of the Federal Character principle, it is replete with the names of the children of serving and retired Supreme Court Justices, one was even a Chief Justice. The child of retired FCT Chief Judge and other cronies. Some of these privileged children are magistrates with questionable qualities for the job, yet they got elevated ahead of known magistrates who have served for a longer period with years of experience and dedication to duty. These experienced magistrates will be frustrated out of the job over time as their parents were never superior Court judges. How can a nation progress with such an attitude?” he said.
Allegations of nepotism, godfatherism
Onu’s allegations are weighty, but allegations of nepotism and godfatherism in judicial officers’ appointment are not uncommon. Last October, the Warri Branch of the NBA rejected a list proposed by the Delta State Judicial Service Commission (JSC) to the National Judicial Council (NJC) for the appointment of judges in the state.
The branch alleged that the state’s Chief Judge nominated his son and a blood relation of the President of the Customary Court of Appeal as High Court judges, saying that due process was not followed.
On March 3, 2018, a former Chief Justice of Nigeria (CJN), Justice Mariam Aloma Mukhtar, blamed ‘godfatherism’ and lobbying in appointments as responsible for the judiciary’s falling standard.
Mukhtar, the first female CJN, was reputed for taking strong disciplinary actions against erring judicial officers during her tenure from July 16, 2012 to November 20, 2014.
Speaking in Abuja, at a book presentation in honour of a retired female Justice of the Supreme Court, Justice Clara Ogunbiyi, warned stakeholders and the NJC to discourage the trend, or risk having incompetent and weak judiciary.
She said: “I will, at this junction, revisit the issue of lobbying and in addition favouritism and godfatherism in the appointment of judicial officers. It is sad that we allow the rising culture of lobbying to influence appointments in the judiciary.
”If we are to revive what held sway in the past, that is, maintaining a strong and competent judiciary, then merit should be the watchword. Lobbying, favouritism and godfatherism should be discouraged and discarded, as they lead to the fall in the standard, and instead of enhancing the institution; they devalue and weaken it because of incompetence of the personnel.”
Two Fridays ago, Justice Francis Abosi, the acting president, Imo State Customary Court of Appeal, and Justice Aliyu Musa Liman of Bauchi State High Court, were recommended for compulsory retirement by the NJC by their respective state governors.
Oye said the council recommended Justice Abosi for compulsory retirement for falsifying his date of birth from 1950 to 1958. He said findings showed that he was supposed to have retired in November 2015 when he clocked the mandatory retirement age of 65.
He also stated that Justice Liman was recommended to the Bauchi State Governor, Bala Mohammed, for compulsory retirement for his failure to deliver judgment in suit No BA/100/2010, between one Abubakar Isa and Sheik Tahir Usman Bauchi, within the three months period stipulated by the 1999 Constitution of the Federal Republic of Nigeria.
The Council, he added, viewed his failure to deliver judgment for nearly four years as a misconduct, contrary to Section 292 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Rules 1.3 and 3.7 of the 2016 Revised Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.
Some observers believe that the NJC’s compulsory retirement of two judges lends credence to Onu’s claims that some appointments of judges of High Courts were lacking in merit.
What then should guide judicial officers’ appointment? Should children of serving/retired members of the upper courts be appointed judges? What is morality’s place in judges’ appointment?
How to solve the problem?
Lawyers, with many years of experience at the Bar differed in their reactions to the issue. They included Kemi Pinheiro (SAN), Seyi Sowemimo (SAN), Louis Alozie (SAN), Former member, Ogun State Judiciary Service Commission, Abayomi Omoyinmi, Former Chairman NBA Ikorodu Branch, Dotun Adetunji,
Appointment process evolving, says Pinheiro
Pinheiro, while admitting that no system is perfect, said it was unfair and uncharitable to the NJC as well as the nominated judges to say and conclude that the process was flawed because some children of retired and serving judges were nominated as judges.
“We should be proud that persons from such a background and pedigree are aspiring to the bench.
“I am not quick to accept the criticism that the recent nomination of persons to the Bench was flawed. What disqualifies a child of a retired or serving judge from being appointed to the bench if he or she merits it? Bearing in mind that the qualifications for such an appointment are prescribed in the Constitution,”
He said the NJC was also a creation of the Constitution and beyond having retired and serving justices as members also has respectable and independent-minded senior members of the Bar. “So, I think it is unfair to cast aspersions on their persons merely because after the process some children of judges were nominated,” Pinheiro said.
According to him: “The system of appointment of judicial officers is still evolving and I think we should focus more on the conditions for the appointment. For example while I recognise that in Lagos, the nominated judges all went through a rigorous process which included tests and interviews that cannot be said in some jurisdictions. I am not aware that the nominated Judges for appointment in the High Court of the FCT went through such a process.
“I, therefore, suggest that the system for appointment into the FCT should be re-engineered. Once a process is perceived to be transparent, there will be little or no complaints.
“Finally, criticising a process as sensitive as the appointment of judges on the pages of newspaper should not be encouraged particularly as the process presented an opportunity for persons to make complaints against any of the candidates.” he argued.
Sowemimo: sound legal knowledge, integrity should be main criteria
Sowemimo suggested that a sound knowledge of the law and integrity should be the paramount criteria for the appointment of judges.’’ I have no information on the criteria used in these recent appointments,’’ he said. He also believed that the process needs to be transparent.’’I have no information on how this recent exercise was undertaken’’. He, however, found nothing wrong in the appointment of serving or retired judicial officers.
According to Sowemimo: “Children of serving and retired judges are entitled to be considered but it should be on merit and the the process should be open to scrutiny
“The composition of the NJC must be reviewed to ensure that it is comprised of persons who are fiercely independent minded and passionate about maintaining the integrity of the judiciary.
“It may be helpful if more persons who are not judges but representative of other segments of our society are allowed to play a role in the appointment process”, he said.
Alozie: Appointment process must be transparent
For Alozie, the solution does not lie in Onu’s proposal for constitutional amendment to alter the composition of the NJC which serves as the regulatory body for the judiciary.
“The point we are making is that appointment to the Bench ought to be transparent and competitive so that the best crop of lawyers are recruited into the Bench. There is no criteria showing children of serving or retired justices are better than others.
“For me, the only problem with NJC is the usual Nigerian factor where every process is manipulated by the powers that be. What is the guarantee that NJC will be free from external and even internal influences and manipulations if otherwise constituted?” Alozie said.
‘Family institution allegation unfounded’
Leaning on his experience as a former commissioner of Ogun State Judiciary Service Commission, Omoyinmi said the process of appointment of judges did not commence with NJC rather it ended with it by ratification.
He said calling for the reconstitution of the NJC on the basis that it had or was turning judiciary into a family institution through such appointment was not founded on any facts and or evidence.
According to him, it is the Judicial Service Commission in the case of federal judges, the Federal Judicial Service Sommission that are solely responsible for the appointment of judges. He added that such appointed judges then proceeded for interview with the NJC and upon satisfactory performance, the NJC then ratifies and sends such names to be sworn in.
“There has been no evidence whatsoever that NJC ratifies any candidate outside the list submitted to it by the Judicial Service Commission. The appointment of judges is based on good character and reputation, diligence and hard work, honesty, integrity and, most importantly, sound knowledge of the law with consistent adherence to professional ethics. Any would- be judge must have also shown active successful practice at the Bar, including satisfactory presentation of cases in court as a legal practitioner, either in private practice or as a legal officer in any public service, consistent display of sound and mature judgment in the office as a chief registrar or chief magistrate, and credible record of teaching law, legal research in reputable university and publication of legal works.
“Once any candidate meets up with the qualities highlighted, be you children of serving or retired judges, consideration to be a judge should not be based on ulterior motive and favouritism”, he contended.
Fair system needed, says ex-NBA chair
Adetunji said it is the desire of the Bar that the judiciary should foster a justice system that is fair, speedy and meets the hope of all men.
According to him, it is natural that lawyers will call for reforms of the NJC through a constitutional amendment when it is felt that the NJC has turned the Judiciary into a private entity and also when it is seen that appointment of new Judges fails to meet the expected regulations put in place for such appointments.
Adetunji said there are some procedural rules in the appointment of judges which the Federal Judicial Service Commission, State Judicial Service Commission and the Judicial Service Committee of the Federal Capital Territory must comply with in their advice to the NJC for nominations or recommendations of candidates for appointment as Judicial officers and anything short of that in considering any appointments to the bench should be dispensed with. Better put, the laid down rules and procedures guiding the appointment of Judicial officers must be strictly followed.
“However, there should be some decorum when criticisms are coming from members of the Bar on issues that borders on the Bench. We can only criticise the procedure for appointment of Judges and also call for reforms rather than to attack members of the Council all of whom are respected Senior Judicial Officers. We can take a stand that appointment of judges should be fair and transparent thereby giving room for all qualified lawyers inclusive of the sons and daughters of these Judges to also throw in their hats and get appointed if found suitable, going by the laid down rules and procedures. For the recently concluded exercise, I say we can do better, he stated.
He, however, pointed out that being the child of a serving/ retired members of the upper courts should not be a hindrance to the rights or entitlements of their children to get appointed in any sane clime, ours inclusive.
“All we are asking for is fairness, equity and transparency in the process of appointments. Also, the Nigerian Bar Association should be carried along by asking for nominations of suitably qualified candidates, the exercise be given the right publicity and opinion of the Bar in the process should not be treated with levity as it is often the case. There should be acceptable justification for all appointments so that the judiciary will not be put into disrepute,” he said.