In the last one week, a list of candidates shortlisted for appointment as Justices of the Court of Appeal has dominated the social media. The list contains 20 names of Judges as priority candidates, and an addendum of 20 others as reserved list. The list indicates that those shortlisted are to appear before the National Judicial Council (NJC) for interview. The list, allegedly compiled by the Federal Judicial Service Commission (FJSC), has received ponderous condemnation from the general public, civil society groups and ethnic nationalities, on grounds ranging from allegations of politicisation, ethnicisation, nepotism and religious bias.
As far back as December last year, the Nation newspaper had carried out an investigation and reported that the on-going process of appointment of Justices to the Court of Appeal had been hijacked by Politicians. It was further stated in the report that sources in legal and judicial circles privy to the process, described the list prepared at the FJSC as being dominated by candidates nominated or sponsored by Politicians, with scant regard for competence, excellence or hard-work. The exercise, said to have been shrouded in secrecy from the beginning, was believed to be marred by lack of transparency and merit.
FJSC’s List and NJC Guidelines for Appointment of Judges
The FJSC’s list, now in circulation, is said to have been prepared under the guise of the principle of Federal Character and geographical spread. Under the NJC Guidelines for Appointment of Judges, Federal Character is the least factor for consideration for appointment of judicial officers. It is dwarfed by such considerations as professional expertise and competence, quality of judgements, performance, demonstration of judicial skill and sound knowledge of law. The Guidelines only make Federal Character a permissive consideration, with a caveat that the principle should not be used as a cover to politicise or compromise judicial appointments. For the avoidance of doubt, Rule 3 (6) provides that in carrying out provisional shortlist, Federal Character or geographical spread shall be taken into consideration, “where possible, without compromising the independence of the Judiciary or allowing politics to permeate or influence the appointment”.
Considering the names that appeared in the FJSC’s list, the influence of politics and application of quota system became clearly dominant. First, as alleged by the Middle Belt and Southern Elders Forum, the names of candidates from the North consists of only Muslim Judges. No single Christian Judge, featured in the list. Describing the list as appalling, the forum noted, “it is quite surprising that, of the 20 candidates on preferred list, all the candidates picked from the North exclude Christians and with three Khadis on board for a court that needs experts in various areas of law, including customary law.” The forum, while threatening a law suit, firmly asserted “we cannot accept that a multi-ethnic and religious country is being treated in this way. It is therefore, demanded that the National Judicial Council (NJC) should trash the FJSC list immediately for the original list prepared by the President of the Court of Appeal.” This is embarrassing enough.
Second, the list is most uninspiring. Many of the Judges are relatively unknown. And, regrettably, some of those in the list, whose names ring bell, can easily be associated with one political case or another, in which the current government had received favourable judgements or convictions of perceived political enemies. It is, therefore, clear that the FJSC’s list might have been a veiled attempt designed to reward such Judges. A particular Judge on the priority list, is known to have failed the security test in the last exercise. The list, in effect, reads more like a sop to judicial patronage than to legal proficiency, and a disingenuous abdication to wholesale quota rather than merit. The list, on this score, stands discredited.
The PCA’s List
On the other hand, it is said that there exists, a particular list of the President of the Court of Appeal, Justice Dongban-Mensem (PCA), which was compiled in strict compliance to the NJC Guidelines. Documents of nominated candidates were dutifully screened. Committees of eminent Justices of the Court of Appeal were set up to scrutinise the candidates on the basis of their qualifications, quality of their judgements, performance, judicial skill, knowledge of law and needs of the court. The candidates were accordingly rated. The shortlisted candidates that emerged through this rigorous exercise were said to have been presented to FJSC, but for some politically-motivated reasons, rejected in a very controversial manner. It is baffling that the highly revered PCA was somehow unable to stand by her list, and had to bow to the FJSC’s questionable antics of the political manipulations and horse-trading.
It is a sad commentary that unity of purpose or synergy is lacking between the Court of Appeal and the FJSC, over an exercise as important as appointment of Justices of the Court of Appeal. The existence of two divergent lists in the exercise, demonstrates a scenario of a house divided against itself. It also depicts the existence of differences that became irreconcilable between the Court of Appeal President and FJSC. This requires the urgent dispassionate intervention of the National Judicial Council, given its pre-eminent position as the topmost supervisory body of courts and judicial body in Nigeria. It is hoped that the NJC would not wholly surrender to FJSC’s shenanigans, and shirk her own supervisory and regulatory responsibilities to the entire judiciary.
It is also curious, as can be observed from the list circulating all around, that only members of the Bench were nominated for appointment to the Court of Appeal, to the exclusion of the Bar and Academia. By recommending only members of the Bench for appointment, the FJSC has obviously acted in bad faith, and in contravention of Rule 3(1) (b) of the NJC Guidelines. One way by which the scope of the capacity of our appellate courts, particularly, the Court of Appeal and the Supreme Court can be broadened, is to inject senior members of Bar including those in the Academia to the courts.
Role of the Judiciary
The Judiciary, it bears repetition, is an important arm of government. It exclusively plays the prominent role of settling disputes among citizens and governments. It determines the rights of individuals and governments. It is also saddled with the constitutional responsibility of providing essential checks on both the executive and legislative arms. The art of dispensing justice, is also undoubtedly a sacred power with grave responsibilities. Every decision of a Judge has consequences. Every error, even an unintentional one, can have serious negative effects for the parties and the society at large. The Nigerian Judiciary at this critical stage of its history needs justices who are honest, hard-working, conscientious, brave, patient, cultivated, intellectually curious and gifted with an intuitive sense of justice; men and women who carry the gravitas of judicial officers with all the boldness, dignity and nobility possible. Only a process of selection and appointment devoid of politicisation, ethnicity, and nepotism can secure this.
Every Nigerian, including members of the NJC, knows that the quality of judgements coming from Nigerian courts are no longer as unimpeachable as in the past. The NJC should indeed, be disturbed that increasingly, the intellectual capacity of Judges in Nigeria is dwindling, with jurists of global standard – in character and learning – remaining in abysmal short supply. The first step towards filling this yearning gap, is the enthronement of the recruitment process of Judges that would lead to the appointment of brilliant and qualified jurists, where a 60:40 ratio in favour of merit is maintained. This is strongly recommended.
A solid Judiciary that enjoys public confidence is an essential feature of any successful democracy. Several studies have shown that countries with strong rule of law credentials, tend to be more economically stable. Most theories of judicial independence also highlight the significance of a credible judicial selection system, as a key and indispensable element of judicial independence. Therefore, it is extremely important to design judicial selection mechanisms that produce Judges whose independence, integrity, and impartiality are not in doubt. Judges are the ultimate guardians of the law and must be appointed in a manner that engenders public confidence. Ultimately, Judges are at the very heart of our legal order, and their decisions can have a long-lasting societal impact. Only Judges that are a product of fair appointment processes can apply the law fairly, rationally, predictably, consistently, and impartially.
It is in the light of the foregoing that the National Judicial Council is called upon to subject both the PCA’s and FJSC’s lists to a careful scrutiny, with a view to producing the best Justices for the Court of Appeal. The criteria for choosing good Judges, are not difficult to identify. Merit should be the sole criterion. Surely, various factors such as intellectual capacity, personal qualities, ability to understand and deal with issues fairly, amenability to team work etc, can feed into the merit of a candidate.
Yemi Gbolade, Legal Practitioner, Lagos