This discussion would have been captioned as’’ life after retirement as judicial officer (as court judge)’’, but better still, the Supreme Court symbolizes the judiciary, being the host of the Chief Justice of Nigeria and head of the judiciary arm of government.
While many professionals and their counterparts in the civil and public service retire without been handed down with ‘’dos and don’ts’’ or restrictions to personal freedom while in the retirement, the Nigeria Judges are guided by law of what he can or cannot do while on retirement. In other words, he’s without total freedom of choice of job to do for living in the retirement.
Section 292 (2) of the 1999 Constitution as amended, without any reservation states that ‘’Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria’’.
Cheerlessly too, Rule 6 (3) and (4) of the Rules of Professional Conduct for Legal Practitioners directed that ‘’a judicial officer who has retired shall not practice as an advocate in any court of law or judicial tribunal in Nigeria’’ and ‘’a judicial officer who has retired shall not sign any pleading in any court’’
In England, where we borrowed our laws, judges are not permitted to return to practice as advocates when they retire as well. Instead they are able to pursue options in private practice as arbitrators and mediators, offering Alternative Dispute Resolution (ADR) services. Many of them choose to do so. This is a sensible solution, which permits them to earn a living, avoid going mad with boredom and keeps them away from court, where as in the belief of some people they can do only harm.
But in the US, retired judges may practice in a court in which they sat; if there is a conflict of interest or an appearance of conflict, then the judge hearing their case would recuse themselves and another judge would hear the case. There has to be more of a relationship between the current and former judge than just that they worked in the same court for that to happen.
However, a retired Supreme Court judge cannot argue in any Court in India, whether High Courts or Lower Courts. This is because the influence of a Supreme Court Judge is nationwide, and he would have an unfair advantage over other lawyers in any Court in the country.
Unlike in Nigeria, a retired High Court judge in India is only prohibited from practicing law in any state where he has been a High Court judge. But he can practice in other states, or in the Supreme Court, and a few retired High Court judges do start practicing in the Supreme Court after retirement.
The return of retired judges to practice has been argued in many quarters worldwide as capable of posing a threat to the administration of justice. It poses a serious threat to the perception of judicial impartiality, and perceived unfairness in the courtroom.
Ian Binnie, former justice of the Supreme Court of Canada, stated, “You always have to consider in these cases the position of the losing party; are they going to go away from court thinking they got the raw deal because the other side had a former judge? Even if that’s not the reality, that will be the perception and I don’t think the courts want to give that impression.”
‘’Retired judges should be prohibited from returning to court as counsel altogether. It is difficult to imagine any exceptional circumstance where the appearance of a retired judge as counsel would not taint a litigant’s perception of impartiality. Retired judges should be permitted to provide strategic and practical advice, but should be kept out of courtrooms, where justice must be seen to be done, Ian Binnie added.
The antagonists of judges’ return to advocacy further felt the outcome of a case may suffer if a retired judge who is acting as counsel is required to argue a position that is contrary to his or her judicial decisions. Conversely, the outcome of a case may be affected if a former judge cites his or her own precedents to advance a position. The dignity of the judges will be better preserved if the retired judges remain at the background, writing legal briefs, rendering legal opinion or at best legal consultancy and arbitration.
Karin Litzcke , a Canadian commentator had on the other hand averred that ‘’the retired judges are people too, and they are people who have tremendous skills and insights with which, first of all, they have a right to earn a living, and secondly, that the legal system benefits from adding to its mix. If retired judges can never practice courtroom law again, fewer brilliant senior advocates will be interested in becoming judges even at the Supreme Court. The argument of undue influence or that a judge could be swayed by facing a retired judge can’t stand, partly because the whole design of the legal system depends on judges disagreeing with each other, so it should be nothing new’’.
Coming back home, in Nigeria, these arguments need to be weighed on our scale of prevailing circumstances. Every judgement delivered in the court appears in the eyes of the public to be predicated on ‘’buying and selling’’ syndrome; not on the merit of a case or based on the facts and laws underlining the doctrine of justice.
As far back as February 17, 2012, the then President of the Nigerian Bar Association (NBA), Mr J.B.Daudu (SAN) had accused politicians of using “consultants” to buy election cases with “incredible sums of money.”
Daudu who made the allegation at a valedictory court session held in honour of late Justice Anthony Nnaemezie Christopher Aniagolu at the Supreme Court, said NBA was aware of all the senior counsel and eminent retired judicial officers that served as conduit between election courts and parties in electoral matters.
“We are no doubt aware that some of our colleagues including very senior counsel and at times eminent retired judicial officers go about offering their services as ‘consultants’ particularly in election cases for incredible sums of money so as to act as conduit between his client and the election court.
In January last year, the Chairman, Presidential Advisory Committee Against Corruption, Prof. Itse Sagay (SAN) said two retired Chief Justices of Nigeria (CJN) had over the years, acted as conduits for corruption on the Bench.
Sagay who failed to name the two former CJNs, said they are fond of collecting bribe on behalf of serving judges to pervert the course of justice. These past CJNs, according to him, had brought ruins to the judiciary as they were still collecting bribe in dollars on behalf of their ‘vulnerable colleagues’.
The bottom-line of these accusations or the x-rays of what some judges do in their retirement in Nigeria is that they are into consultancy business, but not with registered consultancy firms that is allowed by law, call it ‘’black market or bribe and corruption consultancy’’.
The nation has a choice to make between keeping the retired judges in the confinement, boredom or with the risk of sounding immodest, at the departure lounge for journey to live hereafter. Most of them were into practice before going into the bench. They were neither allowed to socialize nor could indulge in any trade while in the services of the states or Federal Government. Adjudication and advocacy are the only businesses he’s aware of till 65 or 70 years of age when he retires. An arbitration or ADR concept is still at primordial level in the country. With paucity of opportunities or alternatives to his known trade of arbitration and advocacy, he reverts to devil’s alternative, midwifing between litigants and sitting judges. Perhaps, this is the greatest fountain by which green shoots of corruption are watered and kept sprouting in the Judiciary at present.
Let us go into moment of reality and take cursory look on why ours and it is succeeding in other climes.
The Supreme Court of the United States was created in 1789 by Article III of the United States Constitution. The Act fixed the number of justices at six (one chief justice and five associate justices). Later legislation increased its size to seven members in 1807, to nine in 1837, and to ten in 1863. However, the Judiciary Act of 1869 restored the Court’s size to nine members, where it has remained since.
A total of 113 justices have served on the Supreme Court since 1789. Justices have life tenure, and so they serve until they die in office, resign or retire, or are impeached and removed from office.
Since the Supreme Court was established in 1789, 17 persons have served as chief justice. The first was John Jay (1789–1795). The current chief justice is John Roberts (since 2005). Four—Edward Douglass White, Charles Evans Hughes, Harlan Fiske Stone, and William Rehnquist—were previously confirmed for associate justice and subsequently confirmed for chief justice separately. In other words, appointment of the Chief Justice of the United States is not mostly from the Supreme Court bench or the next most senior on the Supreme Court bench.
Of the 113 justices, 109 — or 96.5% — have been men and 4 women; of those 113, 107 have been white men. Until 1981, every Supreme Court justice was male. The only two African-American justices, Thurgood Marshall and Clarence Thomas, have served on the court so far. The rest non-white are Hispanics and Portuguese.
Since World War II, the average age when a judge leaves the court, either through retirement or death, has been increasing. With two current justices more than 80 years old and a third joining them next year, the projected age when a justice will leave the Supreme Court is now about 83—that’s a 10-year increase from the 1950s.
At the same time, modern justices are joining the court at a younger age than in decades past. In 1900, justices tended to be in their late 50s when they joined the court. Today, the average age is about five years younger, and President Donald Trump’s nomination of Neil Gorsuch, currently 49 years old, only furthers that trend.
For their day jobs, the eight associate justices earned a healthy pay raise to $244,400, while Chief Justice John Roberts gets a bit extra at $255,500 per year; that’s about N102 million per annum or N8.5m per month in Nigeria context.
In 1963, the Federal Republic of Nigeria was proclaimed and appeals from the Federal Supreme Court to the Judicial Committee of the Privy Council were abolished, and consequently, the Supreme Court became the highest court in Nigeria.
The Supreme Court is composed of the Chief Justice of Nigeria and such number of justices not more than 21, but has never exceeded 17 which appears to be what the Supreme Court facilities can rightly accommodate in the meantime. So far, a total of 103 justices have served on the Supreme Court of Nigeria, just as Justice Walter Nkanu Onnoghen is the 15th indigenous CJN from 1963 or the 17th since 1946.
By virtue of the ‘’Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) (Amendment) Act, 2008’’, CJN’s annual basic salary is N3,353,972.50 (or N279,497.71 monthly), while other Justices of the Supreme Court receive N2,477,110.00 as basic annual salary or N206,425.83 monthly. These earnings are exclusive of tax. By the time other allowances are posted, the CJN and other Justices of the Supreme Court receives monthly salary alert of N480, 766.89 and N751, 000 in their bank accounts respectfully.
However, while total number of the Supreme Court Justices in USA are nine, United Kingdom’s apex comprises a President, a Deputy President and 10 (puisne) Justices, for a total of 12 judges, of which — by convention — nine are from England, two from Scotland, and one from Northern Ireland. At the court’s creation, 10 judges were appointed from the House of Lords, and one was appointed directly to it.
The Supreme Court of Canada consists of nine judges, including the Chief Justice of Canada. There are currently 22 judges (including Chief Justice of India) against a maximum possible strength of 31, of course that is for a billion population.
In South Africa, the court is composed of a President, a Deputy President, and the number of ordinary Judges of Appeal determined in terms of an Act of Parliament; at present there are 22 positions on the court. Cases before the court are generally heard by panels of five judges.
Ghana’s 1992 Constitution sets no ceiling to the number of Justices that may be appointed to the Supreme Court. Article 128(1) only prescribes a minimum number of nine Justices in addition to the Chief Justice.
While the apex court Justices have life tenure in USA, in Canada, Supreme Court Justice, as with all federal judges, may sit on the bench until age 75, at which age retirement is mandatory; in UK they are obliged to retire at age 70 if first appointed to a judicial office after 31 March 1995 or at age 75 otherwise; but in Nigeria, they are to retire at the age of 70.
The most interesting aspect of this comparative studies is that the retiring justices in many climes have conducive houses to accommodate their tired bodies, electricity and water supplies are constant, just as there is retirement plans to avoid boredom for the retired justices.
In USA, while the justices of the Supreme Court are appointed for life, many have retired or resigned. Beginning in the early 20th century, many justices who left the Court voluntarily did so by retiring from the Court without leaving the federal judiciary altogether. A retired justice, according to the United States Code, is no longer a member of the Supreme Court, but remains eligible to serve by designation as a judge of a U.S. Court of Appeals or District Court, and many retired justices have served in these capacities.
This is just as some stakeholders have advocated lately that we can make it mandatory for only retired Court of Appeal or Supreme Court justices as eligible for appointment into ECOWAS Community Court of Justice; as well as the African Human Rights Court being developed presently; at least to absorb some of the teaming retired justices of our appellate courts.
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