Rumble in the Judiciary

With four months left to the retirement of the incumbent Chief Justice of Nigeria, Justice Mahmud Mohammed, tension seems to be enveloping the judiciary over allegations of plans to truncate the seniority rule in the appointment of his successor at the Supreme Court. Davidson Iriekpen writes

It is no longer news that the current Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed is due to retire on November 10, after attaining the mandatory retirement age of 70. What is however of interest to many pundits is the plot by the power-that-be to truncate the age-long seniority rule in the judiciary.

Investigation by THISDAY revealed that some forces are plotting to alter the seniority rule that would probably see the second-in-command at the Supreme Court, Justice Walter Onnoghen, take over after Justice Mohammed retires from the bench on November 10. The forces trying to truncate the seniority rule at the apex court have argued that anybody appointed to be CJN must not necessarily be the most senior justice of the Supreme Court.

There are fears that if President Muham­madu Buhari bows to the pressures from some northern elite and their All Progressives Congress (APC) collaborators not to send Onnoghen’s name to the Senate for confirmation as CJN, the South will miss the golden opportunity to occupy the office. The last Southerner to be the CJN was Ayo Irikefe, who held the position between 1985 and 1987.

Justice Onnoghen was born on December 22, 1950 in Cross River State. He became a Justice of the Supreme Court in 2005 and if appointed, he will be the country’s CJN till 2020, when he would be 70 years old. The incumbent CJN hails from Taraba State while the next after Justice Onnoghen is Justice Tanko Mohammed from Bauchi State.

As CJN, the occupant of the office is also the Chairman of the Federal Judicial Service Commis­sion (FJSC) as well as the Chairman of the National Judicial Council (NJC), the post power organ of the judiciary. Both commissions are involved in the process of promoting anybody to the position in the federal judici­ary and that includes anybody, who has to become CJN.

Investigation revealed that if Justice Onnoghen is denied the position, the chances of having a southerner as CJN could be 15 to 20 years from now since most of the justices in the apex court would remain on the queue till they are 70.

Since Nigeria attained independence in 1960, headship of courts is usually based on seniority. From the high court to the Supreme Court, the tradition has not changed. Of course, the Supreme Court knows this. This is why each time state governors want to alter the seniority rule in their state, the apex court, through the CJN, would step in and resist.

The only instances where the CJNs were picked from outside the Supreme Court were on two occasions in the 1950s and 1960s when Justices Adetokunbo Ademola and Teslim Elias were appointed by the colonial and military governments, who did not have deep partisan political interests like what politicians have today.

Investigation by THISDAY showed that while the North is not favourably disposed to having a southern as CJN for a whopping five years, members of the ruling APC in the South in collaboration with their northern cohorts want Buhari to look beyond the Supreme Court in appointing the next CJN. The party also wants to have ad­equate control of the judiciary ahead of the 2019 elections and is working towards having trusted persons in the hierarchy of the courts.

The plot to stop Onnoghen started to gather momentum, when the APC expressed anger with the Supreme Court’s fa­vourable verdict for the opposition Peoples Democratic Party (PDP) in most South-south states. Sources said the par­ty is still shocked that the Supreme Court decided against its gover­norship candidates in Rivers, Akwa Ibom, Taraba and Delta States.

Against this backdrop, there is a strong perception in the APC that the current crop of Supreme Court justices are pro-PDP and any at­tempt to make one of them the CJN would spell doom for the ruling par­ty in future elections. They also alleged that the justices of the court are corrupt and needs to be headed by someone from outside, who is financially comfortable and is unable to be tempted by any inducement.

The idea to bring someone from outside the apex court was allegedly mooted by the incumbent CJN, who while speaking at the Commonwealth Chief Justices meeting in Wellington, New Zealand recently, said to the gathering: “My lords, the need for a change in the criteria for the appointment of Judicial Officers in Nigeria prompted me to direct the National Judicial Council (NJC) to implement the new revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria 2014.

“It was clear that the old Guidelines and Rules had become unworkable as it saw anachronisms such as the limitation that saw only Justices of the Court of Appeal, as of right, making it to the Supreme Court of Nigeria. Under the new, more rigorous and transparent rules, any qualified legal practitioner with the requisite intellect has the opportunity of making it to any Court in the land and even to the posts of Heads of Federal and States Superior Courts, including the Chief Justice of Nigeria.

“As chairman of the National Judicial Council, I have had to take up the responsibility of ensuring that the overall appointments procedure maintains the institutional integrity of the judicial appointment process while ensuring that only the most competent persons are elevated.”

Forces plotting to have a big say in the affairs of the court henceforth were said to have capitalised on the above submissions to justify the need to also jettison the seniority rule in the apex court.
First to publicly voice it out was a group, United Action for Change (UAC), led by Dr. Muiz Banire (SAN), who is also the National Legal Adviser of the APC. At a press conference in Lagos recently, it called on President Buhari to appoint Supreme Court Justices from outside, arguing that the constitution does not specify that such an appointment should be from within the court.

The group, which claims to be made up of lawyers and activists, at a roundtable with the theme: ‘Repositioning the Judiciary,’ to push the agenda, said the judiciary needs individuals with radical ideas to transform it.
The convener, Banire also condemned a situation where individuals, who had abandoned legal practice for many years, were appointed judges and magistrates. He said NJC ought to have an effective monitoring system by sending its observers and investigators to courts rather than always wait for petitions before taking action against erring judges.

“Someone may have been a lawyer for 10 years and then decides to go into catering, and such a person will then be appointed a judge. That is wrong. Only those in active practice should be appointed judges,” he said.
With the tone of the press conference set, others who spoke at the event toed the same line of argument.
But human rights lawyer, Mr. Festus Keyamo, rejected the call for the appointment of the CJN and the Justices of the Supreme Court straight from the bar, saying such an appointment would “be preceded by intense lobbying, recruitment of politicians into the scheme and some disgusting genuflection before the powers-that-be by the candidates jostling for the position.”

Keyamo argued that once appointed such a CJN would have automatic reciprocal loyalty to his benefactors and appointer. He said the development would open up such a revered office as that of the CJN to political manipulation.

“We can then safely say goodbye to an independent Supreme Court and, by implication, our budding democracy. The current “seamless, apolitical and non-controversial mode of succession at the Supreme Court over the years, especially since the civilian era, has produced a Supreme Court that has engendered respectability and dignity. It has also emerged as a rancour-free institution.”

Though Keyamo acknowledged two instances in the past, where the CJN was picked from outside the Supreme Court – the cases of Justices Adetokunbo Ademola and Teslim Elias – he, however, noted that the colonial masters and the military regime that appointed them did not have deep partisan political interests like what politicians have today. He argued that the other advantage of rising through the judicial hierarchy to the Supreme Court is that the very many attributes of a judicial officer become evident and tested as the progression takes place. He identified these attributes to include productivity, hard work, patience, integrity and sagacity.

“There is no greater interview for an aspiring Justice of the Supreme Court than to look into his records at the lower judicial level and see the display of these attributes mentioned above. But there is hardly any trusted yardstick to test these attributes in a member of the Bar other than perception,” he said.

Keyamo admitted that there is no constitutional restriction as to where those to be appointed as Justices of the Supreme Court or Chief Justice of Nigeria could be picked but warned that in this era of deeply divided political interests, any attempt to introduce politics into the appointment of the Chief Justice of Nigeria would inevitably introduce deep divisions and rancour at the Supreme Court.

According to him, it would also compromise the independence and integrity of the Supreme Court. Keyamo faulted the suggestion that appointments made directly from the bar would add vibrancy to the Supreme Court, saying what is paramount is to ensure that Justices at that level are substantially detached from various interest groups in the society.

He pointed out that over the years, lawyers develop deep ties with these various interests and individuals, stressing that when appointed to the Supreme Court as Justices or even the CJN, these interests cannot be shaken off overnight.

“Your Excellencies and my Lords, I cannot fathom what is meant by “introducing vibrancy and integrity to the Supreme Court” by the advocates of this change. Are they telling us the present Justices of the Supreme Court lack these qualities? The Supreme Court has handed down some of the most radical judgments over the years that have re-shaped our democratic landscape. If that is not vibrancy, what then is vibrancy?

“If these distinguished jurists did not have integrity, how come they have given so many judgments against the ruling parties in the past and present, which have aided the survival of the opposition in Nigeria? If not for judicial intervention, how would the present ruling party have made it to power? I find this rationale of ‘introducing vibrancy and integrity to the Supreme Court’ extremely insulting and demeaning to the present crop of distinguished jurists at the Supreme Court,” he explained.

On his part, human rights lawyer, Ebun-Olu Adegboruwa, has called for the status quo to be maintained. He said “The appointment of any qualified legal practitioner to occupy the office of the CJN, whether from among the existing Justices of the Supreme Court, or from among the senior members of the Bar, will surely not usher in any radical departure from the rot that we are currently experiencing in the administration of justice in Nigeria. This is because the problem with the judiciary presently is systemic not that of any individual.

“The major issue confronting the judiciary is that of lack of funding. Across the land in Nigeria, the judiciary has more or less been castrated and brought to its knees by the executive arm of government. The courts are dilapidated, there is no infrastructure, the judges and judicial staff are not well paid and indeed the whole system is reeking of total neglect. Next to that is that of undue interference in the affairs of the judiciary by the other arms of government, especially the executive.

“Presently, the judiciary is more or less an appendage of the executive, as most judges now consider the thinking of government, the body language of governors and indeed the president in the consideration of judgments and rulings and indeed the conduct of court proceedings. No CJN can change this pattern, whether he is appointed from the Supreme Court or from the Bar.

“The other issue is that of corruption. There is so much perversion going on within the judiciary, not necessarily that of monetary gratification. There are so many other factors that now intervene to shape the face of justice administration in Nigeria, such as ethnicity, religion, consanguinity, business partnership, and lately, public opinion, etc.

“The conclusion of all these is that it is no use altering the existing pattern of appointment of the CJN without a corresponding revolution of the issues plaguing the system. Even if an angel is appointed to head the Supreme Court now, he will most certainly be swallowed by the existing hiccups in the system.

“Thus, while a holistic approach is being adopted to cleanse the system and fund it properly, it will be good to follow the existing pattern of appointing the CJN from most senior Justice of the Supreme Court, so as not to shave the head only and leave the body rotten. If and when we are ready to declare a state of emergency in the judiciary, then it will be necessary at that point, to consider its total overhaul, by appointing the CJN from outside the court system.”

Quote
Investigation by THISDAY showed that while the North is not favourably disposed to having a southern as CJN for a whopping five years, members of the ruling APC in the South in collaboration with their northern cohorts want Buhari to look beyond the Supreme Court in appointing the next CJN. The party also wants to have ad­equate control of the judiciary ahead of the 2019 elections and is working towards having trusted persons in the hierarchy of the courts