Judicial appointments versus executive powers

IN the last two weeks, there has been a lot of debate among lawyers about the first CJN of southern extraction whose three-months acting appointment might not be renewed with the rumor that an  ‘outsider’ will be appointed as CJN. The situation has attracted a lot of comments for and against the justice, fairness and propriety of implementing this strange and divisive howbeit wicked plot of the executive. It is unfair of course for a “rookie” of 15 years’ post-call experience to be appointed straight to the office of CJN over and above seasoned justices who had risen through the career ladder to be Justices of the Supreme Court. The title ‘chief’ presupposes long service and seniority. We have chief judges, chief registrars, chief magistrates, chief state counsel, even chief drivers. The title chief signifies headship which cannot be given to a new intake. This is synonymous with calling a new addition to a family the head of the family. How logical would it be to appoint an outsider as Chief Justice of the Federation?

A careful perusal of the letters of the constitution seems to suggest that the president or state governors is obliged to appoint the most senior judge as CJN, P.J Court of Appeal, Chief Judge FHC or states only in the event that the office becomes vacant or the incumbent is unable to perform the duties of office, in which case the most senior judge so appointed can only act for a non-renewable three-month term.  Subsection 3 seems to refer to a situation where the vacancy is unforeseen and sudden maybe due to death and ill-health and not when an incumbent retires meritoriously.

By virtue of the ‘2014 Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria’, the Federal Judicial Service Commission (FJSC) shall request for applications to fill vacant judicial officers positions including that of the CJN. S.1 1999 CFRN states that the Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria……. If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail…”

How on earth did this faux pas escape constitutional review and the NJC’s scrutiny? The NJC has, through various media, advised the president to implement its recommendation of making the interim CJN substantive because the president is only to ceremoniously accept their recommendation and pass it on the Senate for ratification. The NJC did not take into consideration what next if the Senate rejects that nomination. If the correct interpretation of the constitution is that the president can appoint any person to head federal courts, it is the office of the President or Attorney General of the Federation that can call for nominations to fill the offices of all heads of court from the offices of CJN, PJ Court of Appeal, Chief Judge FHC, just as state governors should call for nominations to the office of Chief Judge of the state.

It appears that the most senior judge/justice can also apply or be recommended; there is no automatic pass. It appears after nominations are reviewed these nominations are forwarded to NJC for consideration, examinations, scrutiny and the best candidate chosen and forwarded back to the President for senate ratification and final appointment.  Therefore, the law as it is does not provide security of tenure to judges, especially as regards the age-long tradition of seniority to ascend headship of courts. The law makes the appointment of heads of courts an all-comers’ affairs. Also, there is no job security for judges on the lower bench, e.g magistrates who are not constitutionally regarded as judicial officers but are expected to observe judicial code of conduct. Security of tenure of judicial officers should begin from the lower/bottom rungs.

There is a need for reform along these lines: urgent and Immediate constitutional review of the appointment of all heads of courts, to ensure judicial independence; and review of criteria of appointment of all Judges of superior court of record. It seems unfair that any lawyer of 15 years’ post-call experience can become not only a Justice of the Supreme Court but the CJN, the same feeling of injustice all Nigerian Chief Magistrates feel when bypassed for law officers during judicial appointments. These are people with more experience at being better judges. The role of the president and state governors in appointing judicial officers must be reduced in plain letters to ceremonial roles just as in their removal.

The law should encourage specialisation in the profession of law; there should be a separation between the office of a Barrister who practices law and office of a solicitor who do not go to court.  Only Barristers who practice law can become judges and only at Magisterial level or the High Court. Law teachers with Ph.D and law professors are specialized only in one area of law and should only be appointed as consultants to Justices, they should not in any way be regarded as Judge material or appointed as heads of courts, there is more to been Judges/Justices than the knowledge of the law. A lawyer might know the law but Judges correctly apply the law which takes years of experience and progression to establish.  It is unjust for lawyers to pursue a different career path and after getting to their peak as SAN, Chief Law officer, be regarded as better qualified to becomes judges/ heads of court over the judges who started as Magistrates on a career path of ending up on higher benches as a fine progression of their career. It is tantamount to a chief magistrate being considered a better choice as an Attorney/Solicitor General over and above career law officers of the ministry.

• Ajala, a legal commentator, lives in Lagos