ISSUES relating to the independence of the Judiciary have pervaded the country’s political landscape in recent times. Many discussions on the issue have focused on the need to guarantee financial independence of the judiciary by ensuring that the budgetary needs of that arm of government are not tied to the executive. I have also in the past emphasised the need for such independence.
However I have overtime, identified certain factors such as reforms to the process of appointment of judges and the need for certainty of tenure as being of paramount importance in any meaningful discussion on the subject of judicial indolence. Where for example the process of appointment of judges is heavily influenced by political considerations or where judges’ tenure of office is dependent on their ability to satisfy political objectives rather than their oath of office, the judiciary can hardly be said to be independent.
It is for this reason that I intend to focus yet again on an issue which in my estimation, given our social and political realities, is capable of affecting the ability of judges to effectively and dispassionately discharge their duties. This simply put is the restriction placed on judges from engaging in the practice of law after retirement. As I will discuss, this restriction has prevented many brilliant lawyers from applying to join the bench and also kept many serving judges from leaving a job which may no longer hold for them the level of satisfaction they had or aspired to when they were freshly appointed.
Legal restriction on practice after disengagement from the bench
Under the Nigerian jurisprudence, judicial officers, upon exit from the Bench, are precluded from returning to active legal practice. Two major legislations – the Nigerian Constitution and the Rules of Professional Conduct for Legal Practitioners – are instructive in this regard. Section 292(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides 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’ Similarly, Rule 6 of the Rules of Professional Conduct for Legal Practitioners, 2007 states thus: Rule 6(3):A judicial officer who has retired shall not practice as an advocate in any Court of law or judicial tribunal in Nigeria. Sub rule (4) further provides that a ‘judicial officer who has retired shall not sign pleading in any court’. The Supreme Court, in Atake v. Afejoku 1994 9 NWLR (PT 368) 379, equally held that a retired judicial officer cannot practice as a legal practitioner in Nigeria.
The effect of the above is that a person who has held the position of a judicial officer in Nigeria can no longer act as a legal practitioner upon ceasing to hold such position. This position is however not without its demerits and the resultant outcry from certain factions, albeit few, for a major reform in the proscriptive law. Before proceeding with a consideration of the pros of ensuring the reabsorption of judicial officers into active legal practice and its long-term effect on the advancement of the Nigerian judicial system, it is proper to firstly examine some arguments already canvassed – by proponents and antagonists alike – on this issue.
Arguments for and against proscription
It has been argued by some in favour of the proscription that the return of retired judges is capable of posing a threat to the administration of justice, perception of judicial impartiality, and perceived unfairness in the courtroom. Those who hold this view wonder how else it will be perceived if a retired judicial officer appears as an advocate before his former colleague, in the adversarial Nigerian judicial system, citing and relying on a case which he himself had adjudicated upon and perhaps, worse still, canvassing an argument that is contrary to his own judicial decisions in the past?
Graeme Colgan, the former Chief Employment Court Judge in New Zealand, who retired as a judicial officer after serving for 28 years, opined on why retired judicial officers ought not to return to courtroom advocacy, thus: “It might be perceived that a former judge would bring an unfair advantage to the opponent because you’ve been behind the bench and you probably know the person who is sitting behind the bench, and in my particular case, I’d almost certainly have known the sitting judge. The perception of fairness and objectivity in court hearings is very important… I could understand the position of a litigant and turning up to a court hearing and then finding out the lawyer on the other side was a former judge and a colleague of the person on the bench”
In sharp constrast, Karin Litzcke, a Canadian commentator stated that: ‘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… As a member of said public, I see no reason why a judge would be swayed by facing a retired judge, partly because the whole design of the legal system depends on judges disagreeing with each other, so it should be nothing new. In fact, it should sharpen up the quality of courtroom dialogue and analysis considerably, making the whole thing something the public is more justified in having confidence in.
Examples from abroad
Notwithstanding the diverging opinions on whether retired judges should be permitted in the Bar, many judicial systems world-over seem to have shifted from the old order and lent more credence towards the return of retired judges to their respective court rooms. In the United States, in the state of New Jersey, a retired judge may be associated in the practice of law with other attorneys and may draft pleadings, frame interrogatories, prepare briefs, motions and other papers. However, he may not sign any of the papers filed in court, including pleadings, even if he prepares same. His name must not appear on any papers, including any indication that the judge is “of counsel,” “on the brief,” or is connected in any way with the litigation. In Canada, retired judges are equally permitted to practice law, subject to certain restrictions. In India, a retired High Court judge is only prohibited from practicing law in any state where he has served as High Court judge, but he can practice in other states.
Calls for change in Nigeria
In Nigeria there has been a clamour for a review of the legislations barring retired justices from appearing in our courts – a call for a paradigm shift. This call is coming in the wake of the subtle realization of the need for a reform in the Nigerian judicial system: the return of retired judges to the Bar being a major consideration. It has been noted that retired judges practicing law elevates the practice of law. During a special court session to mark the beginning of the 2018 legal year, Justice Umeadi, the Chief Justice of the Anambra State High Court openly threw his weight behind the call for retired judges to return to practice, noting that many jurisdictions abroad have long waived the rule barring Judges from returning to practice and further stating that a judge will be more relaxed, bolder and more resolute if he is aware that regardless of any untoward occurrence, he can still dust the wig and gown and return to legal practice.
Certainly, the return of retired judges to active legal practice has both private/personal and public considerations. Perhaps, private/personal consideration in the sense of saving retired judges from solitude of retirement and ensuing boredom, and public consideration having regard to the fact that advocacy from a retired judge will sharpen courtroom dialogue and jurisprudential analysis. According to a writer, the nation has a choice to make between keeping the retired judges in confinement, boredom or at the risk of sounding immodest, at the departure lounge for journey to life hereafter.
To be continued
You may send your comment to email@example.com
AARE AFE BABALOLA SAN, CON, LL.D, D.Litt, FCIArb, FNAILS, FNSE