Politics and the Court of Appeal

BY REUBEN ABATI

It is most unfortunate that the proposed appointment of new judges for Nigeria’s Court of Appeal has been controversial since the announcement of a shortlist in December 2020. The President of the Court of Appeal, Justice Monica Dongban-Mensem has now found herself in an uncomfortable situation where she has to defend the integrity of her Court and the process that led to the emergence of a list of 20 preferred candidates and a list of additional 20 reserved candidates. To have the judiciary dragged into the mud of Nigerian politics and the usual culprits: ethnicity, religion, Federal Character and nepotism playing a prominent role in the matter, is disheartening. Why is it so difficult in Nigeria to have at least one sacred institution, a special symbol, that no one can desecrate? As it is, that seems increasingly impossible.

I asked this question as I read over the weekend, a statement attributed to the President of the Court of Appeal, Justice Dongban-Mensem in which she had cause to protest that persons who have been complaining about the alleged manipulation of the ongoing process of appointing Judges for her Court are seeking to destabilize and scandalize the judiciary. She argues that the appointment process has so far followed “due and usual process” and that the allegation of “favouritism” is a false campaign of calumny: “A total of 80 nominees were shortlisted and recommended for the appointment of 20 Justices to fill the existing vacancies. I state on my honour that any of the 80 nominees could be appointed”, she writes. “It is unfortunate that some people have elected to go to the press without hard evidence which are readily available to those who seek to know. I hereby state that the current recommendation pending determination by the National Judicial Council was done without any preference for tribe, creed or association.”

The problem here is that many stakeholders and interested parties do not think so, Mi’Lord. Shortly after the list was made public, the Southern and Middle Belt Leaders Forum (SMBLF) was one of the first groups to cry out in protest. The group alleged that the published list favours only Muslims from the North and does not in any way reflect the fact that Nigeria is multi-ethnic and multi-cultural. Thirteen out of the 20 preferred judges are from the North, including three Sharia Judges. The SMBLF asked to know if there is no Christian judge at all from the North and the Middle Belt who can be considered good enough to be a Judge of the Appellate Court! Along the same lines, a civil society group, the Global Integrity Crusade Network (GCIN) petitioned the Chief Justice of Nigeria to ask that the National Judicial Council should not go ahead to approve the “fraudulent” list before it. Stakeholders from the South East of Nigeria also cried foul. In a petition to the President of Nigeria and the Chief Justice of the Federation, the Alaigbo Development Foundation led by Professor Uzodinnma Nwala pointed out that the proposed list of new Court of Appeal Justices is meant to deny the South East its quota in the Court of Appeal based on the principles of Federal Character as enshrined in the 1999 Constitution.

The ADF puts the matter thus: “…it is very unjust and unfair for only one Justice to be appointed from the South East out of twenty (20) justices that are being appointed from the six geo-political zones, whereas the other zones were allocated as follows: North West (8), North East (3), North Central (2) South West (4), South South (2)”. Before the ADF, the Christian Association of Nigeria (CAN) also found it necessary to express “ïts feelings of sadness, disgust and anger at the insensitivity demonstrated by the FJSC in compiling the list. It seems undeniable that the recklessness displayed by the FJSC suggests a steady and gradual descend (sic) to a process of Islamising the Judiciary of Nigeria…”

It is possible to dismiss all of these as rather too familiar: the typical Nigerian response to appointments and processes in the public sector but it must be noted that protests such as this speak to a major crisis that Nigeria is now grappling with on a daily basis: the menace of ethnicity, religion and geography. For this reason, nobody believes that the country is fair to anybody. There is a crisis of trust between the government and the people, and among the people themselves. More than 60 years after independence, Nigerians have reduced every institution of state to the politics of proximity and advantage. There is a prolonged and unending struggle over who gets what, and who controls power. The effect is that this dominant tendency brings out the worst in all of us. The educated man in the North who is a first-class intellect is likely to defend a bandit who kills and maims just because he thinks that by doing so, he is protecting his kinsman against other Nigerians, of different ethnic and religious extraction, who are insisting that justice must be done. Similarly, a Southerner of the same pedigree would defend his own kinsman against the Northerner for no reason other than the fact that they both speak the same language or belong to the same region or religion.

This is the ugly drama being played out in Nigeria. It is not new but the melodrama is now tragic. What is disturbing is that the judiciary, the last refuge of the common man, and the expected bastion of the rule of law is now these days, dragged into the crisis of nationhood in a manner previously unseen. Before now, the Nigerian judiciary faced the challenge of military rule and the abbreviation of its Constitutional rights. It survived. Today, the same judiciary is now accused of everything from nepotism, to mediocrity, corruption, incompetence, complicity in the Nigerian mess and if care is not taken, eventual irrelevance. The last point is the main reason caution is advisable.

The judiciary must stay above dirty politics, very far away from it. Its gates must be locked against politicians by all means possible. Nigeria already suffers from too much politics: the politics of ethnicity, religion, difference and mischief. But whereas the involvement of the legislative and executive arms of government in cut-throat, dirty politics may be excused on the grounds that these two arms of government are dominated unavoidably by products of partisan politics, there is cause for worry when the third arm of government, under the doctrine of the separation of powers, becomes a pawn in the hands of politicians, or becomes even so openly mired in politics that its neutrality becomes a subject of analysis, speculation, and even protest. It is worse when the judiciary is accused of partisanship and desperately so. The court, the work-place of the judiciary, is expected to be a temple of justice and everyone who works therein, an honest, untainted officer.

It is the duty of the judiciary to interpret the law and ensure justice, and provide a refuge for all persons whose rights may have been violated, and at the same time, punish according to the law, those errant characters in society who violate the public order and return society by their conduct to the state of nature as defined by Thomas Hobbes. The law exists therefore, to restrain animal conduct and remind all of us of the need to be human. The judex are at the apex of the ladder. Given the privileged position that they occupy, they are expected to be above board, unimpeachable in terms of integrity, most deserving of their positions and of such moral and professional competence to be able to deliver justice without prejudice. When the judiciary however, becomes a target, subject, victim of partisan politics, or rank emotionalism, this goal cannot be achieved. A politicised and compromised judiciary is a threat to the same rule of law that it is required to uphold and enforce.

This re-affirmation is necessary against the background of what looks like the current politicisation of the proposed appointment of additional Justices for Nigeria’s Court of Appeal. Justice Monica Dongban-Mesem is in order to defend her Court. The Court of Appeal is too important in the hierarchy of courts to become a playground for public prejudice and suspicion. Men and women who sit on the Appeal Court must be seen to merit their positions on the basis of their accomplishments and experience. Trust and confidence in the “due and usual process” of the appointment of judges is relevant to the subsequent level of confidence in their performance in office. But with due respect, Her Lordship’s rebuttal does not go far enough. The “hard evidence” that she talks about in terms of what is available in the public domain and what is known contradicts her own declarations. It provides a strong justification for an interrogation of the queries that have been raised and why the National Judicial Council must review the list of proposed Judges before it takes any action.

A review of all the complaints so far would suggest that the Court of Appeal indeed followed “due and usual process” in the screening of the judges that applied for appointment into the Court of Appeal, but problem arose after the President of the Court forwarded the decision of the Committees to the Federal Judicial Service Commission (FJSC). The key allegation is that the FJSC turned the list upside down and ignored the recommendations of the Court of Appeal. Is the President of the Court of Appeal defending the FJSC? Would she be willing to publish the original list that she submitted to the Judicial Service Commission to provide greater clarity and allow the public to compare and contrast? And just in case the list that is in circulation is incorrect, no one has said so. The hard evidence that is currently in circulation is that 13 out of 20 nominated judges are Northerners and Muslims. The 13 Muslim Judges are from Niger, Plateau, Adamawa, Yobe, FCT, Kano, Kaduna, Kebbi, Sokoto, Zamfara, and Katsina, the home state of the incumbent President, which has two nominees. The entire South East is represented by one Judge from Imo State. The South South has two slots: Bayelsa and Delta State. The entire South West has 4 – Ondo (2) plus Ogun, and Lagos. The reserve list of 20 follows more or less the same pattern! By what criteria on earth did the FJSC arrive at such a list which can only fuel the anger about how under the present dispensation, there is an alleged deliberate attempt to grant undue advantages to a section of the country – from cattle rearing, to public appointments?

It may be argued that ordinary people have no business raising questions about the appointment process in the judiciary. But that would be a terribly wrong thing to say. Judges are first and foremost human beings. They are part of society. They have rights too. A lawyer who has chosen a career on the Bench expects that he would be promoted according to his ability. If he is denied the opportunity for advancement and self-actualization, just because his kinsman is not in power or he does not know people in high places, he would be disturbed. He or she will be demoralized. We expect the judiciary to dispense justice, but should such an institution also promote injustice and unfairness within its ranks? However, where are the judges who believe that they are qualified to be on the preferred list? Why are they not the ones writing petitions? Civil society groups may crow as they wish, but their efforts will ultimately raise the question of locus standi? Should judges who push this same principle be seen to be sleeping on their own rights?

There have also been snide remarks about the competence of some of the judges on the FJSC’s proposed list. I have no “hard evidence” in that regard. Elsewhere in the United States for example, there will be open access to the judgments that judges about to be elevated have written, their positions on key judicial matters and their contributions to the development of the law. Here in Nigeria, there is so much politics and secrecy. Judges who think that they are more deserving are bound to feel discouraged. Last year, there was so much controversy over the appointment of the Federal High Court Judges in Abuja. This year, we are at the same point with the appointment of Justices of the Court of Appeal. At other times, there have been issues over the appointment of Chief Judges at the state level, and the thorny issues have been more or less the same: merit, ethnicity and religion (re: Kebbi, Adamawa, Cross River). Who will judge the judges? It has also been said that the current list before the National Judicial Council does not include senior members of the Bar and persons from the academia whose inclusion in line with the enabling Guidelines can broaden the scope of the Court of Appeal, and provide needed depth.

Finally, the President of the Court of Appeal is a Christian. Right under her watch, we have this controversial issue of 13 nominee-Justices of the Court of Appeal out of 20 who are Muslims and Northerners? Whatever she says, it will be recorded that the deed is hers. Was she intimidated or influenced? What other “hard evidence” do we need? What else would she be willing to defend on “her honour?” These are issues that the NJC must consider.