Why constitution should be reviewed to allow the NJC recommend and appoint Judges

There is a dire and urgent need for a review of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to allow for the National Judicial Council, NJC, to recommend, nominate, appoint, as well as dismiss Judges at all levels across the country. This is needed to remove bureaucracies causing avoidable delays in the whole process.

Given that the NJC has never failed in the recruitment of Judges, the government must understand the importance of the process to national jurisdiction, hence it should be obligated to make its decision within a reasonable period of time.

A practicable scenario is that nine months on after the NJC recommended the appointment of four new Supreme Court Judges, President Muhammadu Buhari is yet to forward their names to the Legislature for confirmation. The recommendation which was made in October 2019, carried the names of: Adamu Jauro (North-East); Emmanuel A. Agim (South-South); C. Oseji (South-South); and Helen M. Ogunwumiju (South-West).

While president Buhari has the powers to appoint the Judges with the backing of the Legislature, Nigeria’s Chief Justice, Tanko Mohammad, had on different occasions raised concerns over the heavy workload on Justices of the apex court. Their ages and backlog of work is also worrying. The NJC currently has 12 Justices of the Supreme Court, and will be left with a lesser number in a few years, as a handful of them will exit into retirement upon reaching the mandatory age of 70.

This should be of great concern, as it contravenes section 230 (2) (b) of the 1999 constitution which stipulates that: “The Supreme Court of Nigeria shall consist of such number of Justices not exceeding 21 as may be prescribed by an Act of the National Assembly”.

Justice Paul Galumje, born in 1950, will be due for retirement by the end of the year. Following suit would be Justices Olabode Rhodes-Vivour and Sylvester Ngwuta, who were both born in 1951 and would be due by 2021. Justice Mary Odili will reach retirement age by 2022, as she was born in 1952. By 2023, the CJN himself would be due to bow out.

As contained in the procedural rules of the the NJC for the nomination and appointment of Judges, “The Federal Judicial Service Commission, State Judicial Service Commission and the Judicial Service Committee of the Federal Capital Territory shall comply with these Rules in their advice to National Judicial Council for nominations or recommendations of candidates for appointment of Judicial Officers for the Superior Courts of Record under the 1999 Constitution of the Federal Republic of Nigeria (as amended)”.

This includes that: “Whenever the Chairman of a State Judicial Service Commission proposes to embark on the process for appointment of candidates or a candidate to Judicial Office in the State, notice shall be given to the Governor of the State concerned stating the number of Judicial Officers intended to be appointed.

“Whenever the Head of a Federal Court proposes to embark on the process for appointment of candidates or a candidate to the office of Judicial Officer of a Federal Court of which he/she is the head, notice shall be given to the Chief Justice/Chairman of the Federal Judicial Service Commission stating the number of Judicial Officers intended to be proposed for appointment.

“The decision of the Chief Justice/Chairman of the National Judicial Council shall be communicated in writing to the Chairman of the Judicial Service Commission/Committee, or as the case may be, the Head of Court and shall be final unless the Head of Court shows grounds to the satisfaction of the Chief Justice/Chairman of the National Judicial Council why it should be reviewed.

“In carrying out the provisional short listing exercise, the Chairman of the Judicial Service Commission/Committee shall take into consideration as much as possible, (i) professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of 6 contested cases in the last 5 years; (ii) sound knowledge of law, (iii) seniority at the Bar and or the Bench, (iv) Federal character or geographical spread and where necessary and possible, without compromising the independence of the Judiciary or allowing politics to permeate or influence the appointment.

“The Chairman of the Judicial Service Commission/Committee shall not include in the provisional shortlist any person whose reputation in the locality is low or had been tarnished; and, where applicable, shall not include any Judicial Officer whose performance has been consistently rated low or not satisfactory in Judicial performance evaluation reports”.

Rule six of the procedures further adds that: “Every candidate/Judge/Justice/Chief Judge/Legal Practitioner, who has been shortlisted shall undergo interview to be conducted by the National Judicial Council to ascertain his or her suitability for the judicial office sought.

“The mode of interview shall be determined by the Council. The result of the interview shall form a major part of the decision on the candidate’s suitability for the judicial office for which he or she has been interviewed. A candidate who is unsuccessful at the interview shall not be recommended for appointment by the Council”.

Renowned Legal Activist, Olarewaju Suraj, urging the government to do the needful, noted that the delaying tactics which is the hallmark of the current administration, could be justification for the delay experienced in the transmission of names of Judges to the National Assembly.

“The internal selection of judges is subject to security vetting and there are factors to be considered by the government. Unfortunately, many of those cases are not subject to public knowledge and engagement. For whatever reason and purpose, the government is obligated to take a decision within a reasonable period of time.

“This government must be made to understand and realise the imperative of prompt and timely response to national matters of this nature. You can imagine that accusations and counter-accusations of political parties against justices of the Supreme Court by political parties on the Imo and Bayelsa governorship appeal matters,” he affirmed.

Similarly, the Governor of Kaduna State, Mallam Nasir El-Rufai while swearing-in four newly appointed High Court Judges in the state recently in May, admonished that the NJC be allowed to select Judges for appellate courts. The names which included Judges Amina Bello, Ambo John, Rabi Oladoja and Andow Edward, were forwarded to the NJC and acted upon within just three months.

El-Rufai who regretted that the state had been seeking for the appointment of the high court Judges for the past three years, said the only bottleneck in the process is the NJC’s bureaucracy, which he said unduly delay appointment of Judges.

“Though, only four were appointed, the state requires about 20 judges to compliment the current ones, who are overworked. Each of our High Courts in the state has a minimum of 200 cases, which is too much for them to handle and therefore, affect the administration of Justice.

“To this end, the State needs more judges as we have the capacity to make their work easier with the provision of housing and vehicles, among other necessary things to make their stay memorable. In my opinion, the NJC should only select judges for the appellate and Federal courts and leave the selection of judges for State high courts to an equivalent Council at the State level, either the State Judicial Service Commission which now appoints Magistrate or the State Judicial Council which select judges.

“I do not believe that the appointment of high court judges at the State level should be within the purview of the NJC. We are trying to operate a unitary judiciary when we have a Federal Executive and Legislature, this needs to be corrected,” he added.

At state levels, appointment to the office of Chief Justice is made by the governor on the recommendation of the NJC and subject to confirmation of the appointment by the state Houses of Assembly.

With recourse to the Cross River state scenario, the state government in March this year, was enmeshed in controversy over the appointment of a substantive Chief Judge for the state. In line with the NJC’s provisions and Nigerian constitution, the most senior Judge in the state at the time was Justice Akon Ikpeme, who ought to be appointed Chief Judge, but was disqualified by the state assembly allegedly because of her family ties with neighbouring Akwa Ibom.

The state governor, Ben Ayade, instead nominated the second most senior Judge, Maurice Eneji, who was considered a full indigene, to replace Mrs. Ikpeme as Acting Chief Judge, an action which was constitutionally unacceptable.

Just as this was a gross violation of the legal provisions for appointment of Judges, can one now be deprived of an appointment that he or she Merits because he or she is a non-indigene? Given that Mrs. Ikpeme at the time was not of unquestionable character or seen as a security threat, she was legally in line to be appointed.

The Chief Judge of Rivers state, Justice Adama Iye Iyayi Lamikanra who was sworn-in four years ago to replace Justice Daisy W. Okocha, is originally from Delta state, just as Justice Rabi Talatu Umar, the Chief Judge of Bauchi state, is of Kogi state decent.

Born in Calabar when both states (Cross River and Akwa Ibom were still a single state), Mrs. Ikpeme is of Akwa Ibom parentage. Noteworthy also is that she is married to a man from Cross River, and had worked for decades as a Judicial Officer, including being a Director of Public Prosecution, and a Judge in Cross River.

The State House of Assembly on its part said it declined to confirm Mrs. Ikpeme as the Chief Judge on the grounds that she could become a ‘security risk’ to the state because of her ties with Akwa Ibom. The new Acting Chief Judge was however said to be related to Mr Ayade and is also from the same Senatorial District with him.

Reacting, the Nigerian Bar Association, NBA, solidly threw its weight behind Mrs. Ikpeme and subsequently called on the NJC not to recognise Mr Eneji. The NBA countered the argument by the Cross River Assembly that Mrs. Ikpeme could be a security risk.

NBA President, Paul Usoro in a statement said: “This absurdity and naked injustice and prejudice must not be allowed to stand. To the best of our knowledge, Ikpeme J had security clearance from the Department of State Security, DSS, the body saddled with handling security issues and appropriately screening candidates for judicial appointments – before her name was sent to the NJC by the CRS Government as the preferred candidate for the position of CRS Chief Judge in December 2019.

“Now that the CRS HoA is revising the DSS security clearance that was given to Ikpeme J prior to the NJC recommendation, neither the CRS Governor nor the HoA has supported their security risk assertion with any revised report from the DSS.

“In any case, what security challenges could there possibly be between two neighbouring states whose indigenes historically come from the same pod? We know of no such fantasised security challenges and even if there were, that would not justify denying a fit and proper Ikpeme J the position of the State’s Chief Judge and committing an unconstitutional act.

“To be clear, Ikpeme J, upon her appointment as a judicial officer, swore to an oath to dispense justice to all manner of persons without fear or favor and without affection or ill-will. Nothing has been proffered by the CRS Governor and HoA to suggest that Ikpeme J has reneged howsoever from the obligations of that oath to warrant any concerns about the discharge of her functions as the State Chief Judge if she is so appointed.

“The CRS Judiciary is in any case not in a position to determine disputes, if any, between CRS and AKS the exclusive jurisdiction thereon belonging as it does, constitutionally, to the Supreme Court. Even where disputes between federating States deflect from that apex Court, they end up inexorably before the Federal High Court and not the State High Courts. The question does not therefore, even arise as to where Ikpeme J’s allegiance would be in the event of any conceivable dispute before His Lordship’s court between CRS and AKS.

“The administrative functions of the State Chief Judge do not also involve issues of security between Nigeria’s federating States, howsoever. In effect, whether from a judicial or administrative prism, Ikpeme J as the CRS Chief Judge would have nothing to do with purported security challenges, if any between CRS and AKS”.

Commissioner for Information in the state, Asu Okang, replied that people were unnecessarily attacking the state government over Justice Ikpeme’s matter, adding that the state assembly had the constitutional right to reject Justice Ikpeme.

“A potential chief judge of the state shut down all the court, shut down the entire judiciary, mobilised thugs to the assembly, members of the assembly scampered for their safety, just to ensure that she was cleared (by the assembly).

“Are you aware that Justice Akon (Ikpeme) was asked as part of the screening exercise, ‘In case there was an issue between Cross River and Akwa Ibom State Your Lordship, who would you stand for?’ You know her response? She said, ‘I would stand down on the case and reassign it to someone else.’ A chief judge of the state?

“There are over 200 of them who are non-Cross Riverians, very recently the appointment of special advisers Muslim affairs, first in the entire South-south. Cross River has two commissioners in the state executive council who have no ‘fatherly’ lineage to Cross River origin, members of Cross River State Executive Council, the apex body of decision-making and policy-making in Cross River State Government.

“The governor was the same governor who swore in Justice Akon (Ikpeme) as acting chief judge three months ago…. In this case, the NJC recommended, the governor forwarded to the assembly, and the assembly declined consent with a simple majority of 15 to eight.

“We are in a democracy. Fifteen members voted no to the confirmation, eight members voted yes to the confirmation. A clear democratic process! Are we saying that the House of Assembly has no such legislative powers?” the commissioner said.

Atavti, is the Judiciary Editor of Nigerian Pilot Newspaper.

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