“Government on its own should put in place remuneration packages sufficient to attract the most brilliant minds from the bar to the bench. With the current economic realities, it will be difficult to convince a lawyer who is making a lot of money in private practice to jettison his practice for life on the bench.”
Make merit the paramount consideration for appointment of judges
A few weeks back I discussed the link between a transparent process of appointment to the judiciary and the ability of members of the Bench to effectively perform their constitutional duties. I specifically compared the process of appointment as it was in times past when lawyers were invited to the Bench with the practice that obtains now by which candidates lobby and apply to be appointed as judges. Therefore In concluding my revisit of the loss of confidence in the judiciary brought about by recent events I wish to take a look at the measures recently put in place by the National Judicial Council for a revamp of the process of appointment of judges.
2015 guidelines
In 2015, the National Judicial Council released the revised NJC guidelines and procedural rules for the appointment of judicial officers of all superior courts of record in Nigeria. By the said rules, the NJC sought to revamp the process of appointment of judicial officers in Nigeria so as to remove ills such nepotism, favoritism, etc which had always characterized previous appointments. It was specifically intended that merit would be the paramount consideration in appointment of judges. To this end, it is provided in Rule 2 that vacancies in any judicial office will be advertised on the website of Judicial Service Commission of a state or that of the Federation as the case may be and also by pasting on the notice boards of the courts and the branches of the Nigerian Bar Association in the jurisdiction concerned. By Rule 4(i) emphasis is placed on competence and high moral standing. For the avoidance of doubt, the said rule provides as follows:
“4. In considering the candidates, Judicial Service Commission/Committee shall take into account the fact that Judicial Officers hold high office of State and occupy an office carrying enormous powers and authority. Accordingly, the National Judicial Council shall –
(i) Regard the following qualities as essential requirements for the selection of suitable candidates for the judicial office in any of the Superior Courts of Record in Nigeria;
In all cases:
(a) Good character and reputation, diligence and hardwork, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics;
As may be applicable
(b) Active successful practice at the Bar, including satisfactory presentation of cases in Court as a Legal Practitioner either in private or as a Legal Officer in any Public Service;
(c) Satisfactory and consistent display of sound and mature judgment in the office as a Chief Registrar or Chief Magistrate;
(d) Credible record of teaching law, legal research in a reputable University and publication of legal works, and in addition to any or all the above;
(e) In the case of appointment of a candidate to the office of a Sharia Court of Appeal, knowledge of Arabic language and grammar”.
The above is without a doubt commendable as it conforms to some extent with the United Nations Basic Principles on the Independence of the Judiciary (1985) which provides as follows:
“10.Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”
I hope that the above guidelines will be strictly complied with, as to do so remains the only way of ensuring that only competent persons are appointed as judges. In reality, some of the instances that the public perceive to have arisen because of corrupt practices may have actually occurred out of sheer incompetence or laziness. This can for example be the only explanation for the refusal of a Judge to deliver a ruling or judgment several months after conclusion of a matter.
The NJC should therefore take further steps to ensure that only competent hands are appointed to the bench of the superior court of record. While it has commendably introduced measures to make the process of appointment transparent, it should nevertheless continue to seek ways to improve in this regard. Government on its own should put in place remuneration packages sufficient to attract the most brilliant minds from the bar to the bench. With the current economic realities, it will be difficult to convince a lawyer who is making a lot of money in private practice and who by remaining in the said private practice is likely to continue to make even more, to jettison his practice for life on the bench. I will address this aspect of my recommendation in fuller details later.
In addition to the above, I recommend that government builds and strengthens institutions that will outlive individual governments. Governments will come and go but strong governmental institutions will last forever. Government should therefore strengthen institutions such as the NJC to further enhance its capacity to perform its constitutional duty. This may include an amendment to the provisions of the Constitution regarding membership of the Council.
At the moment, the Council draws its membership almost entirely from the legal profession. Only two members who are not members of the profession are to be appointed by the Chief Justice of the Federation. Furthermore, although five members of the Nigerian Bar Association are permitted to be members, these five persons are by the provisions of the Constitution permitted to sit in the Council only for the purpose of considering the name of persons for appointment to the superior courts of record.
Therefore, where the matter to be discussed relates to discipline of erring judges, the five members of the NBA cannot sit in Council. This exclusiveness may have for too long unwittingly shielded the judiciary from the pains and lamentations of ordinary Nigerians who daily complain about the slow pace of justice delivery in the country and its attendant problems. It may therefore be helpful to increase the number of members of the council who will come from outside of the profession and the judiciary itself.
AARE AFE BABALOLA, OFR, CON, SAN, LL.D (Lond), D.Litt
and then