About six months toward the end of barely 2-year tenure of the immediate past Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, there were moves from certain quarters canvassing strongly for the appointment of the next Chief Justice of Nigeria from outside the Supreme Court Bench.
Of course, there have been series of attack on the tradition of appointing the next most senior justice of the Supreme Court as CJN, a situation they argued was akin to in-breeding, devoid of innovation and preserving corruption.
Following the persistent demand by many stakeholders within and outside the judiciary, the former Chief Justice of Nigeria, Justice Aloma Mariam Mukhtar came up with the ‘’New Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria 2014’’.
Though the National Judicial Council (NJC) feverishly attempted to implement the new criteria for the appointment of Judicial Officers in the country recently when the Nigerian Bar Association (NBA) President was requested to forward some names of senior lawyers for appointment as the Supreme Court justices. But if the rules are put to use, the anachronisms such as the limitation that saw only Justices of the Court of Appeal, as of right, making it to the Supreme Court of Nigeria which is inherent in the old Guidelines and Rules would have stopped. I’ll come back to NJC’s attempt to put into use the 2014 NJC Guideline later.
Under the new, more rigorous and transparent rules, any qualified legal practitioner with the requisite intellect has the opportunity of making it to any Court in the land and even to the posts of Heads of Federal and States Superior Courts, including the Chief Justice of Nigeria. The nation Judiciary shall continue to come under heavy criticisms until the overall appointments procedure maintains the institutional integrity of the judicial appointment process while also ensuring that only the most competent persons are elevated.
Among the first legal luminaries to cast stones against appointment of the CJN from the Supreme Court Bench was the Chairman of the Presidential Advisory Committee Against Corruption, Professor Itse Sagay (SAN).
By February 2016 he insisted that appointment of the CJN needed not be made from within, saying times are changing and such a practice might no longer be wise or best for the judiciary.
Sagay, in a piece titled, “Appointment to the office of Chief Justice of Nigeria,” said the throes of corruption in which the judiciary was writhing, had made it wise for the President to take his time to carefully study the NJC’s nominee before sending such a name to the Senate for confirmation as the CJN.
“This load has fallen on the President because of the failure of the NJC to exercise due diligence in the past when making recommendations to the President. From my own perspective, without any privileged information, I believe that this is the process ongoing right now,” Sagay said.
He argued that, indeed, nothing in Section 231 of the constitution on appointment of the CJN stopped the President from rejecting any nominee from the NJC and requesting for another, if he was not satisfied.
Furthermore, Sagay launched a merciless attack on the tradition of automatic appointment of the most [senior Justice on the Supreme Court bench as the CJN.
He argued that the practice had over the years bred both corruption and mediocrity, because without doing more to distinguish himself, “once a judge arrives at the Supreme Court, if there is no younger man amongst those already appointed before him, he can calculate, to the exact second, when he is going to be the Chief Justice of Nigeria.”
“The system is devoid of the merit, achievement and quality of the character of the appointees,” Sagay said.
He recalled how the NJC, through the tradition of succession by seniority, had “allowed at least two Justices of the Supreme Court to slip through the net of judicial vetting to become the Chief Justices of Nigeria. And that became a permanent embarrassment to the judiciary and Nigeria as a whole.”
He said, “Up till today, one of them, calling himself consultant, regularly carries money to his former colleagues, still serving in the judiciary, to buy justice for his law chamber clients. The other one specialised in dollars and distributing it amongst vulnerable colleagues. These are the types of Justices who have brought ruin to the judiciary, making it necessary for close vetting of candidates for Chief Justice of Nigeria at the presidential level.”
In concluding, Sagay called on the NJC to not only discard the tradition of CJN succession on seniority basis, but to give room for lawyers, both law academics and legal practitioners, to be appointed straight to the Court of Appeal and the Supreme Court.
He said it was time again to re-invent the era when two lawyers, late Teslim Elias and late Augustine Nnamani, who were both Attorneys General of the Federation at different times, were appointed straight to the Supreme Court, with even Elias appointed as CJN.
But the more in-depth move against the appointment of the CJN from within was made by a group called the ‘’United Action for Change (UAC)’’, which was convened by the then All Progressive Congress (APC) National Legal Adviser, Dr Muiz Banire (SAN).
This group was rumoured to have had the prompting of some personalities in the presidency, hence its pronouncements or resolution was a euphemism for kite-flying or testing public reactions.
The group however announced in May 2016 the resolutions reached during a roundtable session in Lagos, among which to urge President Muhammadu Buhari to consider appointing the next Chief Justice of Nigeria (CJN) from outside the Supreme Court.
It said the judiciary needs someone with radical ideas to transform it, adding that the Constitution does not specify that a CJN must be appointed from the Supreme Court.
“We have so many unfit people on the Bench. Some sit by 11am daily rather than 9am. There are Supreme Court justices who are consultants. They will tell you to deposit N250 million to win a case,” he alleged.
“Most members of the NJC are appointed by the CJN. That needs to change. Who disciplines the Supreme Court judges? Time and again they do err because they are humans. Therefore, they should be answerable to a system that is independent of them.
“The CJN must come from outside the Supreme Court. For there to be a change in the judiciary, there must be radical change at the top,” the group held.
The former CJN, Justice Mahmud Mohammed referred the resolutions and prime-movers of the United Action for Change (UAC) to the Nigerian Bar Association (NBA). This was just as his media assistants took Banire to cleanser because the impression given to the general public was that his party, the APC wanted CJN to do its bidding. Perhaps, that quest for disciplinary application and CJN media counter led to apology letters Banire wrote to all justices of the Supreme Court including the current CJN.
Justice Mohammadu Lawal Uwais, the Chief Justice of Nigeria (CJN) from 1995 to 2006 had in an interview he granted and was published by The Authority newspaper on April 6, 2016 insisted that the Senior Advocates of Nigeria (SAN) and States Chief Judges should not be given automatic appointment to the Supreme Court Bench.
“It was during my time as CJN that we said no, Senior Advocates of Nigeria (SANs) who want to come to the Bench should start from the level of the High Court or at best at the level of the Court of Appeal. That was the policy when I was a member of the National Judicial Council (NJC), and I still remain with that view’’.
Justice Mahmud Mohammed kept faith to the dictates of Section 231 of the 1999 Constitution with receipt of applications, screening of nominees and forwarding of nomination to the President beginning from the Federal Judicial Service Commission (FJSC) to the National Judicial Council (NJC), when he chaired the two judicial agencies.
‘’Such critical role bankrolled by a core judiciary minds devoid of ethnic, religious or regional considerations is what makes the judiciary thick, unique and unraveled among the arms of government’’, says Barr Abanika Muktar.
On January 30, 2017, NBA President, Abubakar Mahmoud (SAN), issued a notice to effect that the then acting CJN, Justice Walter Onnoghen had asked the NBA to nominate suitably qualified legal practitioners to apply for appointment as Justice of the Supreme Court.
This notice read: “Pursuant to Section 231(2) of the 1999 Constitution, the acting CJN has invited the NBA to nominate suitably qualified legal practitioners to apply for appointment as a justice of the Supreme Court of Nigeria.
In response to Justice Onnoghen’s call, the NBA, forwarded the names of nine lawyers, including six Senior Advocates of Nigeria, for consideration for appointment as Justices of the Supreme Court.
The nominees are a former President of the NBA, Dr. Olisa Agbakoba (SAN), a former Attorney General of Abia State, Chief Awa Kalu (SAN); Yunus Usman (SAN); Chief Anthony Idigbe (SAN), Mr. Babatunde Fagbohunlu (SAN) and Mrs. Miannayaaja Essien (SAN).Others are Awalu Yadudu, Tajudeen Oladoja and Ayuba Giwa.
The nine nominated lawyers were called to the Bar between 1978 and 1988.
A total of 89 candidates were said to have submitted Expression of Interest Forms to the NBA following the invitation by the acting CJN.
Meanwhile, there are 17 Justices on the Supreme Court bench as opposed to the maximum of 21 provided for in the constitution.
The CJN, Justice Onnoghen, had on a number of occasions, expressed his view that the current 17 Justices are just enough.
During the visit of the NBA to him, Justice Onnoghen had reiterated that position.
He was quoted to have said that, “There is no need for the appointment of full compliments of Justices to the Supreme Court bench. The 17 Justices that the Supreme Court presently has is the largest in the world.
“Full compliments of Justices will not solve the problem of congestion in the Supreme Court.”
But his eventual invitation to the NBA to nominate its member for appointment as Supreme Court Justices was observed to be clearly inconsistent with his view.
The NBA had been persistent in its agitation to have his members appointed to the apex court bench, and Justice Onnoghen, and perhaps that made him to defer to the NBA.
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