Just as we were settled for the discussion of this topic, the Senate announced the receipt of a letter from President Muhammadu Buhari asking it to approve and confirm the appointment of Justice Adamu Abdu-Kafarati as substantive Chief Judge of the Federal High Court. This is coming nine months after the Chief Justice of Nigeria (CJN), Justice Walter Nkanu Onnoghen, took a proactive step to prevent judicial disorder on Saturday September 16, 2017 to swear-in Justice Kafarati as acting Chief Judge of this all important court of first instance.
The CJN resorted to power conferred on him by Section 2 of the Oaths Act, cap O1, Laws of the Federation of Nigeria, 2004 and the Second Schedule to the Act to swear-in Justice Kafarati following the failure of the Presidency to nominate successor to the former Chief Judge of the Federal High Court, Justice Ibrahim Auta who was due to retire same Saturday September 16, 2017. Justice Kafarati was then the next most senior Justice of that court.
Of course, that was not the first time when the Judiciary would revert to such provisions of the laws of the land. The former CJN, Justice Idris Legbo Kutigi lent his hands to the same laws to swear in Justices Alosius Katsina-alu as acting CJN and Justice Ayo Isa Salami as the new President of the Court of Appeal on December 30, 2009. Both had been duly nominated by ailing ex-President Umaru Yar’adua and confirmed by the Senate, but the president who should have inaugurated them left the country on health grounds without mandating the then Vice President Goodluck Jonathan to act for him. Justice Kutigi attained the constitutional retirement age of 70 years on Thursday December 31 and could not have stayed in office any day longer.
In his remark after administering the oath, Justice Onnoghen said, “The Federal High Court is a very critical court in the jurisprudence of Nigeria. It is very strategic”, the CJN noted. He said the swearing-in was done during the weekend to avoid a vacuum in the leadership of the high court. “That is why we are here today. Even if it has not been done before it has been done now”, Justice Onnoghen jokingly added.
The National Judicial Council (NJC) which forwarded Justice Kafarati’s name to President Muhammadu Buhari for appointment as substantive Chief Judge of the Federal High Court, has at the same time renewed his Acting appointment for about three times; until the President forwarded a letter to the senate for his confirmation.
COURT OF APPEAL JUSTICE NOMINEES
The CJN, Justice Onnoghen disclosed during Court of Appeal Conference on November 15, 2017 that the NJC was set to forward 14 names of judicial officers for elevation into the Court of Appeal Bench, ostensibly to cover for vacancies created by those that have left. He stressed that the replacement has become imperative as election year draws nearer.
Consequently, NJC forwarded the following names same November 2017 to President Buhari for appointment into the Court of Appeal Bench: Justices P.A. Mahmoud (Benue); Folashade Ojo (Kwara); I.G. Abundaga (Nasarawa); M.B. Idris (Niger); Abubakar Talba (Adamawa); and Kadi Alkali (Adamawa).
Others are: A.I. Adenyangtso (Taraba); Sadiq Umar (Kebbi); Danladi Senchi (Kebbi); A.M. Lamido (Sokoto); B.B. Aliyu (Zamfara); Ebowei Tobi (Delta); and Gabriel Kolawole (Osun).
FCT HIGH COURT JUSTICE NOMINEES
In the same November 2017, NJC forwarded a list of 10 judges to President Buhari for appointment into the FCT High Court Bench. They include Babangida Hassan (Bauchi); Binta Mohammed (Kaduna); Hauwa Shehu Aliyu (Zamfara); Khadija Mounir Gwarzo (Jigawa); Akobi Iyabani Anna (Cross River); Asmau Akanbi Yusuf (Kwara); Samirah Umar Bature (Sokoto); and Modupe Osho-Adebipe (Ogun). Just like others, President is yet to act on the NJC’s recommendation.
FEDERAL HIGH COURT JUSTICE NOMINEES
The NJC has at same time submitted a list of 10 new Federal High Court judges to the president for appointment, which has not been done so far.
President of the Customary Court of Appeal nominee, Justice A.M.A. Sadeeq have also not been confirmed since November 2017 when his name was forwarded to the president by the NJC.
IMPLICATIONS OF PRESIDENT’S DELAYED ACTIONS
The 2019 general elections are almost at hand. It is expected that several actions will begin to be instituted before the courts, and as usual, such electoral cases are time bound and therefore take precedence over other matters before the courts.
These are appointments were estimated by the judiciary to get the officers settled well on time before election time. It is also to afford the judiciary to have enough hands on the Bench to adjudicate on other matters, especially the anti-corruption cases that have delayed in the court.
Delaying these appointment for whatever reasons for 5 to 7 months appear not tenable. It is rather estimable if the President returns the nomination he is not comfortable with to NJC to make amend than to allow these Federal Judicial appointment files to be gathering dust and cobwebs.
THE QUESTION OF JUDICIAL INDEPENDENCE
The Chief Justice of Nigeria (CJN), Justice Walter Onnoghen had recently expressed deep grieve over the undue interference of politicians in the process of judges’ appointment.
According to the CJN, the current system of judges’ appointment in the country is such that the governor of a state might not allow the names of persons nominated for judicial appointment to be sent to NJC for scrutiny if the names of the governor’s candidates are not included on the list. The consequences of such is that the nation’s Judiciary or Bench are populated by men and women highly deficient in integrity and job performance.
NJC, the apex body of Nation’s Judiciary, is one of the Federal Executive Bodies created by virtue of Section 153 of the 1999 Constitution (as amended). The Council is vested with enormous powers and functions, which no such institution in the 1999 or any other previous Constitution had, except that it has no garrison command to enforce its decisions, powers and functions.
This is because NJC has the mandate to entrench and preserve independent judiciary and financially autonomous judiciary in the country. Besides, it is expected to evolve a pro-active and vibrant judiciary that has judicial officers and staff with proven integrity and impeccable characters.
But by the provisions of Paragraph 21 of Part One of the Third Schedule to the 1999 Constitution as amended, NJC shall have power to ‘’recommend to the Governors from among the list of persons submitted to it by the state judicial service commissions persons for appointment to the offices of the Chief Judges of the states and judges of the High Courts of the states, Grand Kadis of the Sharia Courts of Appeal of the states, and President and judges of the Customary Court of Appeal of the states.
More importantly, the council is enjoined by subsection (e) of the above provisions to collect, control and disburse all the monies, capital and recurrent, for the judiciary. The council has only able to carry out the implementation of this mandate for the Federal Judiciary and not at the state level.
Except the judiciary independence and autonomy are truly guaranteed and handy; which will require the full powers to hire and fire judicial officers vested in the judiciary, the issue of interference and politicization of appointment of judges would never be eliminated.
It is often said that ‘’he who pays the piper calls the tune’’, in other words, the person with power makes the decisions. As important as the judiciary is to the sustenance of the rule of law and democracy; it is the most vulnerable of the three arms of government. It always depends on the other arms to perform its functions. For instance, it has no absolute control over who becomes a judicial officer, the removal of judicial officers, and the powers of the purse.
Section 17 (2) (e) provides that the independence, impartiality and integrity of courts of law and easy accessibility shall be secured and guaranteed. For the judiciary to perform to its optimal, it should have some modicum of independence. It is rather unfortunate to note that this provision is under the Fundamental Objectives and Directive Principles of State Policy, whose provisions by virtue of section 6 (6) (c) of the constitution are non-justiciable. It is therefore made manifest that the constitution itself after providing for the independence of the judicial arm renders such independence unenforceable. This consequently poses a challenge to the judicial arm as to whether it is truly independent.
In Furtherance with the aforementioned, the judicial set-up does not ensure the needed independence for the judiciary to perform its functions impartially. This takes leap from the process of appointment of judges, dismissal of judges, funding and the general conditions of service of judicial officers and personnel which are basically left in the hands of the executive. This can be buttressed by taking a perusal into NJC which is the body charged with the task of recommendation of Justices and Judges by virtue of 231 (1), 238 (1), 250 (1) (2), 254B (1) (2), 256 (1) (2), 261 (1) (2), 266 (1) (2), 271 (1) (2), 276 (1) (2), 281 (1) (2) of the constitution to realize that such a body is actually a Federal Executive Body pursuant to Section 153 (1) (i). It is therefore discovered that the Judiciary of the Federal Republic of Nigeria is recommended by a Federal Executive Body, ratified by the Legislative and appointed by the Executive. The question that therefore bothers around the mind is that is the Nigerian Judiciary truly independent?
Although Sections 84 (2) (4) (7) and 121 (3) of the constitution ostensibly grants financial autonomy to the Judiciary by providing that the recurrent expenditure of judicial officers of the Federation and the States shall be a charge upon the Consolidated Revenue Fund of the Federation or State, there does not appear to be any provision in the constitution that specifically ensures the proviso of capital expenditure for the Judiciary. Section 121 (3) of the 1999 Constitution unequivocally states, “Any amount standing to the credit of the Judiciary in the consolidated revenue fund of the state shall be paid directly to the heads of the courts concerned”. No governor in Nigeria has ever observed this provision.
. More so, that which is directly provided for in the aforementioned sections, the Executive arm of the Government still has to approve how many Judges will be appointed and catered for by the Government. However, the definition of judicial officers in Section 318 of the constitution excludes judicial officers of the inferior courts and non-judicial staff. Further, Section 80 (4) of the constitution provides that no moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation except in the manner prescribed by the National Assembly. The question then rises up that what if the National Assembly refuses to prescribe a manner, what then happens? At the moment, Section 2 (2) of the Public Funds of the Federation (Disbursement) Rules made pursuant to Section 23 of the Finance (Control and Management) Act requires a warrant issued by the Minister of Finance. Another question is this, what then happens in the event that the Minister of Finance fails to issue a warrant?
In summary, it is rather unfair that the Executive arm determines the army of officers it maintains every year and the Legislature makes laws about the disbursement of revenue. Of course the Legislature and the executive between them can always vote what they want for themselves; whilst the judiciary, the ‘third arm’ is allocated what the other two deem fit. It leaves the judiciary in a position of going on bended knees to request for whatever it needs. If anything at all, the situation discussed above does not make for the independence of the Judiciary.
In the words of Chief Afe Babalola (SAN) giving a lecture on ‘The Role of The Judiciary in The Sustenance Of Democracy In Nigeria’, it is stated that ‘when appointment of men and women to the bench is premised on extraneous considerations such as god-fatherism, political connections, religious leanings, “federal character” (without any regard for merit and competence) and monetary inducements, the ultimate victim is JUSTICE. The society is bound to suffer and bear the brunt of the consequences of having incompetent judges on the Bench.’
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