THe decision of the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen and the President of Appeal Court, Justice Zainab Bulkachuwa to appoint Senior Lawyers directly to the Court of Appeal and the Supreme Court is causing uneasiness among Justices of the Higher Courts. In the recent past, particularly since the advent of democratic rule, appointments into the two highest benches in Nigeria have by convention been restricted to serving judges from the lower courts. Under the military, however, a couple of appointments to the Supreme Court were made directly from the bench, the first being Justice Teslim Elias, an academic who was appointed CJN by General Yakubu Gowon in 1972, having been Attorney-General of the Federation and Minister of Justice at various times since 1960.
Another lawyer so appointed was Justice Augustine Nnamani (SAN), who was nominated by Obasanjo to the Supreme Court in 1979 from his position as the Attorney-General of the Federation and Minister of Justice. He was at the Supreme Court for 11 years. However, the CJN and the President of the Court of Appeal, are now leaning backwards to this old and rare selection process, sending notices to the Nigerian Bar Association (NBA) for the nomination of qualified lawyers to be appointed justices of the Supreme Court and the Court of Appeal. Many justices of the higher courts, are however opposed to the new proposal and while choosing not to express their opposition publicly, have decided to block the idea by not recommending the selected lawyers to the National Judicial Council (NJC) for appointment into the two higher benches.
The Supreme Court is established by Section 230 of the 1999 Constitution. It states: “(1) there shall be a Supreme Court of Nigeria. “(2) The Supreme Court of Nigeria shall consist of: (a) the Chief Justice of Nigeria; and (b) such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.” Furthermore, Rule 3 of the NJC Guidelines states: “In the case of appointment of Judicial Officers for Court of Appeal and Supreme Court of Nigeria, the President of the Court of Appeal/Chief Justice of Nigeria shall as the case may be, write to Heads of Courts, serving Justices of Court of Appeal/Supreme Court of Nigeria and President of the Nigerian Bar Association asking for nomination of suitable Judicial Officers/Legal Practitioners for appointment as Justices of the Court of Appeal/Supreme Court of Nigeria.”
However, rule 3(1) (b) of the guidelines add: “except a sitting judge supports a lawyer’s application for appointment as a judge, his application will fail.” Also Rule 2, which equally applies, provides: “Any person nominating a candidate must do so in writing and indicate clearly and in detail that he/she has sufficient personal and professional knowledge of the candidate’s requisite attributes for a reasonable period of time as would make him competent to make the nomination. “He/she shall expressly certify that from his/her personal knowledge of the candidate, the candidate possesses the qualities set out in Rule 4 (4)(i)(a)-(b) of these Rules; and, where applicable the qualities set out in Rule 4(4)(i)(d) and/or (e).” Under Rule 4, serving and retired justices are also requested to give their opinions on the suitability of persons seeking to be appointed a judicial officer. It is not clear whether all retired justices support the appointment of lawyers directly to Supreme Court and the Court of Appeal. However, a former CJN, Justice Muhammadu Uwais, has openly voiced his opposition to the proposal.
Should lawyers go straight to Supreme/Appeal courts? The Nigerian Bar Association (NBA) has nominated nine lawyers, including six SANs, for appointment as justices of the Supreme Court at the instance of CJN. Also, the NBA has nominated 12 lawyers for appointment as Justices of the Court of Appeal. However, some lawyers have called for the suspension of the process, claiming that it can kill the morale of judges. Others have hailed it, saying it will make the apex court vibrant. It is a rare occurrence in the Judiciary. The late Dr Taslim Olawale Elias was appointed from the university, where he was a Senior Lecturer, as Chief Justice of Nigeria (CJN) in 1973. Six years later, the late Dr Augustine Nnamani joined the Supreme Court from being Attorney-General of the Federation and Minister of Justice during the Gen. Olusegun Obasanjo military regime.
Section 231 (3) states: “A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.” Section 237 (3) states: “A person shall not be qualified to hold the office of Justice of Court of Appeal, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 12 years.” Some observers see the nomination of some lawyers for appointment as justices as a negation of the tradition of succession by seniority and one capable of causing latitude amongst senior members of the court system. Others see it as an attempt by Justice Onnoghen to reposition the judiciary, having taken it over when its image has been battered.
Some of the prominent lawyers and SANs are like businessmen who will want to cover their own interests. Some of these SANs have represented political parties in different suits and they must have lineage/connection to these political parties. Some of them are huge financier of the parties. We should not allow such blind policy to ruin the judiciary. The working condition and emolument of judges should be improved so as to tackle corruption. For instance, a judge earns about N500,000 in a month while a Legislator earns millions of Naira per month. The salaries of judges are not commensurate with the load of work they handle.
The retirement age of State High Court judges should be increased from 65 years to 70 years because at the age of 65 years, judges still have more to offer to the administration of justice. Since the retirement age of a university Professor is at 70 years, such should be applied to State High Court judges too, given the enormous investment and training it has cost the nation. There is nowhere in the world where lawyers were appointed from the Bar into the Supreme Court or the Court of Appeal bench. Therefore, I humbly submit that this appointment should be jettisoned. The NJC should sponsor a bill inputting the NJC Guideline into the Constitution to restrict future occurrence.
- Gbagi, a legal practitioner, writes in from Abuja.