WAY forward: Constitutional Reform
THE fact that appointments of judicial officers in Nigeria are made by the Governor upon the recommendation of the National Judicial Council is one capable of abuse thereby further eroding the independence of the Judiciary. From the clear wordings of Section 270(2), the appointment of judicial officer is made by the Governor. All that the National Judicial Council does is to recommend based on factors such as vacancies and suitability of candidates. Where the Governor proceeds to make the appointment based upon the recommendation of the Council, the appointee may feel a sense of loyalty to the Governor who appointed him.
In a situation in which a Governor serves long enough to appoint a vast majority of Judges in the State Judiciary then the whole judiciary might be inclined to do the bidding of the government one way or the other. One of the cardinal rules of the principle of natural justice is that a person cannot be a judge in his cause. However, suits are daily filed in courts against governments in which judges appointed by the said governments are expected to adjudicate. To a large extent, most judges acquit themselves well. However, the effect of those who do not reverberate more than those who do.
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 as nepotism, favouritism, etc., which had always characterised previous appointments. It was specifically intended that merit would be the paramount consideration in the 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 the 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:
1. Good character and reputation, diligence and hard work, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics;
As may be applicable:
2. 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;
3. Satisfactory and consistent display of sound and mature judgement in the office as a Chief Registrar or Chief Magistrate;
4. 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;
5. 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.”
Also, one of the most profound provisions is contained in Rule 3(i)(b) which opens up appointment to the Court of Appeal and the Supreme Court not only to suitable judicial officers but also legal practitioners. In effect, appointment to the two appellate courts is now open to any legal practitioner who satisfies the provisions of the Constitution regarding eligibility for appointment to those courts and is no longer restricted to judges of either the High Court or the Court of Appeal as the case may be. However, the extent to which this will be practicable both in terms of the appointment process and in terms of the ability of any legal practitioner outside of the judiciary to fully integrate himself into the demands of such high office is still subject to debate.
Autonomy: The judiciary in Nigeria still lacks autonomy in the real sense of the word despite attempts made in recent times to give it a semblance of such autonomy. At the moment, the executive arm of government at the federal and state levels still do not see the Judiciary as a separate and independent arm of government. To bring home this point, I will from next week refer to the practice in some other countries which have rightly placed emphasis on judicial autonomy.
BY: Afe Babalola