Filling Supreme Court Vacancies: Issues for Consideration
The last port of call on the Nigerian Judicial ladder, is the Supreme Court. All appeals terminate at the Apex Court; they can go no further. The Constitution provides for a total of 21 Justices of the Court, but in the past few years, this maximum number has not been reached for reasons ranging from their Lordships retiring in quick succession on attainment of the mandatory retirement age of 70, or death, and the last two Chief Justices stepping down before the end of their tenures. Presently, there exist eight vacancies at the Supreme Court, but the modalities of filling those vacancies and the quality of appointees have been a source of contention amongst legal pundits. While some believe that it is only fair that the Supreme Court Justices should be selected from the crop of Court of Appeal Justices who have served on the Bench possibly for decades, hoping to reach the helm of their career as judicial officers, others believe Senior Advocates of Nigeria and Academics should also be considered for the position of Supreme Court Justice. Professor Chidi Anselm Odinkalu, Professor Paul Oboh Idornigie, SAN and Joseph Otteh proffer solutions to addressing these perennial concerns
Supreme Court Has a Crisis that Appointments Alone Can’t Cure
Chidi Anselm Odinkalu
20 years ago, Nigeria’s Supreme Court was in a very bad way. On 3 October 2002, Vanguard newspaper in Lagos led with the caption “Severe ailments ravage three Supreme Court Justices.” One of the Justices named in the story was Okay Godfrey Achike, whose judicial trajectory followed the academic route. Obi Nwabueze, distinguished law Professor and Nigeria’s senior-most Senior Advocate of Nigeria (SAN) no less described Achike as “a first-rate academic and a fine teacher”.
Death of Supreme Court Justices
After a career as a Professor of Public Law traversing six law faculties all over Nigeria, Okay Achike became a Judge of the High Court of Anambra State in May 1986. 15 months later, he was elevated to the Court of Appeal in September 1987. In November 1998, Okay Achike was appointed Justice of the Supreme Court. He was just under 66 years old and due to retire on 23 December 2002. However, early in 2002, Justice Achike suffered a stroke, forcing him ultimately to take early retirement from the Supreme Court at the age of 69 in August of the same year. He was too ill to even attend his own valedictory session the following month. One year later, in August 2003, he died.
The early retirement of Justice Okay Achike, happened at the beginning, of a bad season for Nigeria’s Supreme Court. Over the next three years, seven Justices left the Supreme Court. These were Justices Emmanuel Ayoola, Dennis Edozie, Anthony Iguh, Ekundayo Ogundare, Obioma Ogwuegbu, Pats-Acholonu, and Samson Uwaifo.
Of these, Ekundayo Ogundare died in London in December 2003 from causes associated with colon cancer while Chukwudinka Pats-Acholonu died suddenly on 14 May, 2006. Two others – Anthony Iguh and Obioma Ogwuegbu – also survived hospitalisation for critical illness shortly before retirement. Indeed, Justice Ogwuegbu described his own survival as “a medical miracle.”
In comparison to the three serving Justices who died over three years between 2003 and 2006, the Supreme Court suffered the death of three of its serving Justices over the 25 years from 1977 to 2002: Onuorah Dan Ibekwe in 1977; Chukwunweike Idigbe in 1983; and Augustine Nnamani in 1990. Indeed, no Justice of the Court had died in service in the 12 years to 2002, since the untimely passing of Augustine Nnamani.
Two weeks after the death of Justice Pats-Acholonu, on 30 May, 2006, this writer complained in an article about “the stresses our judges go through”, which argued that “mortality figures of the Supreme Court also tell a story about the working conditions of the Supreme Court.”
Dearth of Supreme Court Justices
16 years later, memories appear to have faded and the recent complaint by the current Chief Justice of Nigeria (CJN), Olukayode Ariwoola, about a triple crises of attrition, retention, and replacement at the Supreme Court appears to have inspired a reflex of hand-wringing, attended by a flurry of consciousness most of which look both undigested and hardly helpful.
It all began with the valedictory session on 15 September, 2022 for Abdu Aboki, the most recent Justice to retire from the Supreme Court, where the CJN complained that his exit had “drastically depleted” the ranks of the Bench of the Court from the constitutional ceiling of 21 to 13. When they began the year, the CJN lamented, they were 17.
From the Body of Senior Advocates of Nigeria, BOSAN, the reaction was swift and immediate. On behalf of the Body, Onomigbo Okpoko, SAN, claimed that the complaint of the CJN was self-inflicted, because of an appointment process that “appears to have been designed and operated to exclude good and competent Lawyers from being appointed Justices of appellate courts.”
The response of the BOSAN regrettably missed the point as it was premised on a failure to pause for a diagnosis of the ailment, rather defaulting to a Nigerian fixation with quick fixes anchored on a philosophy of allocation. Before proceeding to prescribe a cure, therefore, it is important to unbundle the cause(s) of the rapid attrition in the Supreme Court.
Of the departures from the court since 2019, at least four have been premature. Of the four, two Justices died while two Chief Justices (no less) took early retirement. Three of these four would still have been in service, which would have obviated any need for the CJN’s lamentations.
Matters Arising
One issue is health and wellbeing in the court. In the past year alone, Sylvester Ngwuta, a Justice of the Supreme Court, died at 69 on 7 March 2021. Another, Samuel Oseji, died barely five months later on 28 September, 2021 at 67. In June 2022, it emerged that the Justices of the Supreme Court had written to the then CJN complaining of debilitating failures of health and wellbeing, including non-provision of housing and research assistants. In particular, their letter lamented that there had been no meeting of the Justices over the entire duration of the Covid-19 crisis, pointing out that the standard of healthcare in the court had deteriorated to the point where “there is a general lack of concern for Justices who require immediate or emergency medical intervention”. These complaints naturally raise the possibility that, the rate of mortality as a form of attrition at the Supreme Court is preventable.
Second is judicial integrity. In three years since 2019, Nigeria has had three Chief Justices. Of these three, two left office prematurely in circumstances connected with negative imputations on judicial independence and integrity. Indeed, it has been said that the last CJN left the judiciary and the Supreme Court “in a mess”. When legitimate questions of judicial integrity can be raised at this level, it is rather idle to focus on access to appointments as a panacea because even the appointment process would be corruptible and probably corrupted.
Third is management access to the court. In an article published nearly 18 years ago, the present writer and Dr Sam Amadi warned that we were “killing the Supreme Court” and the court was itself complicit in turning itself into a dumping ground for mostly irrelevant appeals. Many of these appeals dwell on issues already settled in Nigerian law, and a majority also are interlocutory, filed for purposes entirely unconnected with the due administration of justice in order to either deliberately manufacture delay or to aid Lawyers in their pursuit of the rank of Senior Advocate of Nigeria (SAN).
As we wrote then, through an “inexplicable combination of practice, jurisprudence and inertia, the Court has effectively divested itself of the strategically significant jurisdiction to determine the volumes and jurisprudential significance of casework it receives for consideration.” The result is that the Supreme Court of Nigeria has become the place where appeals in cases not involving politicians or elections go to die, and the Justices have become endangered by their commitment to not filtering the appeals that they hear.
These three issues are by far the biggest causes of the attrition, retention and replacement crises in the Supreme Court. Indeed, in the face of these, the problem that the CJN complains of can’t be altered even if we were to triple the establishment size of the court from 21 to 63 or, even worse, implement the entirely unfortunate idea of decentralising the Supreme Court to each geo-political zone of the country, as some have advocated. In these circumstances also, legislating for Justices to serve until the day after eternity, as Afe Babalola SAN has suggested, would be a very bad idea indeed.
It is nevertheless important not to totally ignore the advocacy by BOSAN, to look to the ranks of its members for appointments to the Supreme Court. Former CJN, Mohammed Lawal Uwais, has explained that he instituted the policy of confining Supreme Court preferments to serving Justices of Appeal, because “there is the issue of integrity. If you have been a Judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where whether you are a corrupt person would have been discovered”.
It should be recalled that the Chief Justice governs preferment to the privilege of SAN. If he says in that capacity that he is unable to trust the integrity of the persons whom they choose to prefer to the rank, then it is hardly a response to the crisis of appointment in the Supreme Court to suggest that the answer lies in choosing from the ranks of persons whose integrity can’t be guaranteed. What is required in the face of this claim is not to insist on preferring people to the Supreme Court from these ranks, but to first reform the system of preferment in order to guarantee the rank of SAN as a quality mark of unquestionable integrity and excellence, which it can hardly be said to be presently.
Conclusion
In the end, it is necessary to admit that there is no one magic bullet to address or resolve the crisis that the new CJN has called attention to. Rather it requires a multi-dimensional approach beginning with an internal reform of the operations and management of the Supreme Court itself, to improve wellbeing among its personnel both judicial and non-judicial. Caseloads in the court will need to be governed much better, through appropriate filtration devices. This will require a combination of both legislation and reform of the rules and doctrines of the court. Standards of judicial ethics at all levels, will need improving. If these are done, then attention to appointments could be part of the package. Absent these reforms as a package, a focus only on appointments will not be part of the solution. Rather, it will only deepen the problem.
A Lawyer and a Teacher, Chidi Odinkalu can be reached at chidi.odinkalu@tufts.edu
Chidi Anselm Odinkalu
Appointment of Supreme Court Justices from the Bar or Academia
Professor Paul Idornigie, SAN, PhD
Qualifications for Judicial Office
Constitutionally, the qualification for appointment to the position of a Judge of the High Court of the Federal Capital Territory is 10 years post-call [Section 250(3), Constitution of the Federal Republic of Nigeria, 1999 as amended (“Constitution”)]; Court of Appeal, 12 years post-call [Section 238(3)] and the Supreme Court, 15 years post-call [Section 231(3)]. The same 10 years applies to High Courts of the various States. There is nothing in these provisions that state that for appointment to the Supreme Court, the candidate must be elevated from the Court of Appeal or anywhere else. Indeed, there is no other qualification in the Constitution. Similarly, nothing in these provisions refer to federal character, though there are other enactments on this. However, over the years, it has been the practice that Justices of the Supreme Court are appointed from the Court of Appeal, and those of the Court of Appeal from the High Court, either the Federal or State High Court. Invariably once you get to the High Court or even Magistrate’s Court, you will get to the Supreme Court. In such appointments, the principle of federal character is observed.
I remember with nostalgia that late Hon. Justice Taslim Elias, a renowned law academic, former Dean of Law, was appointed straight as the Chief Justice of Nigeria, and late Justice Augustine Nnamani was appointed from the Bar, being the Attorney-General of the Federation. Although eminent scholars like the late Justice Niki Tobi, JSC and late Adolphus Karibi-Whyte, JSC came from academics, I do not support subjecting Professors of Law to start as High Court Judges. Justice Niki Tobi, for instance, was not only a distinguished scholar, he was Dean of Law and Deputy Vice-Chancellor. Incredibly, he started as a High Court Judge before his elevation to the higher Bench. Other than those in full time legal practice, there are academics who are also in active legal practice. I remember that Hon Justice C C Nweze, JSC a distinguished scholar was also in active legal practice, and started his judicial career in the High Court of Enugu State. I think that such scholars should not start their judicial careers at the High Court.
I also recall that when Mr Augustine Alegeh, SAN, was President of the Nigerian Bar Association, this matter was pursued vigorously to the point of shortlisting outstanding scholars and members of the Bar. I am also aware that the immediate past Chief Justice of Nigeria, also started this process. The reform should be sustained.
The number of Justices of the Supreme Court has been reduced to 13, out of the 21 provided in the Constitution. In filling these vacancies, I think that the selection policy should be revisited, as well as the disposition of the Justices.
Federal Character & Judicial Appointments
I support the position of the Body of Senior Advocates of Nigeria (BOSAN) that the best should be at the Supreme Court – whether from the Court of Appeal, the Bar and Academia. I think that we have abused the principle of federal character in this country – its starts from the Secondary School, where there are different cut-off points for the States (quota system); continues through admission into the Universities (catchment area, merit list, educationally disadvantaged areas, etc) to employment in the public service. While I believe that all the zones in the country should be represented in the Judiciary, I think that a percentage should be reserved for merit. Even at the level of the High Court, it has become an all-comers affair, or positions reserved for the children of elites or former judicial officers. Realising that once you are a High Court Judge, you stand the chance of being elevated to the Supreme Court, I think that we should revisit the selection process at the High Court. I really do not care where one comes from or is a product of the federal character principle from secondary school; merit should not be sacrificed at the altar of federal character.
Appointment on Merit, Not Promotion
The Constitution provides for ‘appointment’ to the Supreme Court, and not ‘promotion’ from the Court of Appeal. Why are we restricting ourselves to only those from the Court of Appeal? I think that the time has come for us to revisit the policy regarding appointment into the highest court of the land. In doing this, I think that we should reconsider the meaning of ‘practice of law’. Is it only those in active legal practice, that practice law? For instance, I am an Arbitrator and I write arbitral awards regularly that are equal to judgements of the High Court [Section 31 of the Arbitration & Conciliation Act, 2004]. If I am interested in joining the Bench, why should I as a Professor of Law & Chartered Arbitrator, be subjected to starting from the High Court? Most academics will find this unattractive.
I really do not want to talk of the quality of some judgements, and yet being able to write judgements is one of the reasons why only Justices of the Court of Appeal are ‘promoted’ to the Supreme Court. We all know what judgements of the appellate courts were in the past, and what they are today. As a law student, I was flabbergasted by the industry, intellectual depth, fluidity, sagacity, rendition and diction of Justices like Hon Justice Andrew Obaseki, Hon Justice Kayode Eso, Hon Justice Karibi-White, among others.
In scholarly writings like thesis or research projects, we are always asked about ‘contribution to knowledge’. What have some of these judgements contributed to our jurisprudence? I think that the Judiciary will be the better for it, if it is inclusive of members of the Bar whether in academics or full time practice. There are fine scholars in academics and the Bar, that will contribute in deepening our jurisprudence. They ought to be encouraged. We have men and women of impeccable character, unquestionable integrity and high moral standing. Such men and women can go through a proper scrutiny, for the purpose of determining their eligibility for recommendation by the Federal Judicial Service Commission to the National Judicial Council for appointment into the Judiciary.
I really do not think that I need to be the ‘good boy’ of a Governor, to be made a High Court Judge. We all know how some Governors have abused their powers, in this regard.
Suggestions
I also support the view that the Judiciary should be decentralised, and the jurisdiction of the appellate courts revisited. It is not every matter that should get to the Supreme Court. This way the workload of Justices of the Supreme Court, can be reduced.
One way of improving on the quality of the judicial officers, is structured continuous training. I appreciate what the National Judicial Institute is doing in this regard, but the Institute should be strengthened and properly funded. The Institute can collaborate with other agencies, like the Nigerian Institute of Advanced Legal Studies. I will prefer that the National Judicial Institute is properly funded to carry out this training, than other agencies sponsoring judicial officers to attend their specialised training. We should protect our institutions, from the possibility of being seen to have been compromised.
Can we also look at the composition and powers of the Federal Judicial Service Commission and the National Judicial Council? It is the Federal Judicial Service Commission that advises the National Judicial Council, in nominating persons for appointment of judicial officers. It is also the Federal Judicial Service Commission that recommends to the National Judicial Council, the removal of judicial officers. Both the Federal Judicial Service Commission and the National Judicial Council are chaired by the Chief Justice of Nigeria, and the President of the Court of Appeal is a member of both bodies. There ought to be checks and balances, and some level of independence.
Professor Paul Obo Idornigie, SAN, PhD, Fellow, Nigerian Institute of Advanced Legal Studies/Chartered Secretary/Chartered Arbitrator; Faculty of Law, Veritas University, Bwari-Abuja
Supreme Court Appointments: Nigerians Deserve Our Best Foot Forward
Joseph Otteh
Introduction
Seats on Nigeria’s Supreme Court Bench, are now in more constant flux. Eight positions currently require to be filled. This revolving door of entries and exits, do not create the stability that is required for the highest court of the land. In July 2022, the Federal Judicial Service Commission (FJSC) published a list of 29 names of persons who will be considered by the National Judicial Council (NJC) for filling six of the available vacancies in the Supreme Court, and it is possible that efforts have begun to include candidates for the new position vacated. All indicated names in the list, are current Justices of the Court of Appeal.
The Role of the Supreme Court in a Democracy
The Supreme Court, in Nigeria, and indeed, other constitutional democracies, is a court of supreme legal and extra-legal importance. On paper, its role is legal or constitutional. But, its extra-constitutional role – denoted as its “political” or institutional role – is likely bigger in significance.
As Nigeria’s Supreme Court Justices said in a leaked Memo to the former Chief Justice of Nigeria, Ibrahim Tanko Muhammad GCON, the Supreme Court is a “policy court”! It (that is, the Court) sets out, in broad strokes, what is the direction of the law. Through its interpretation and exposition of law, it is able to set the tone for how law is interpreted by all courts in Nigeria. A literalist or textualist-oriented Supreme Court will likely deliver a system of national jurisprudence that is constrictive and sterile, while a socially conscious Bench will likely breathe life into the living texts of the Constitution and blend interpretation to suit the needs of justice.
While the policy function is important, the political function of the Supreme Court is no less so. The independence and strength by which a Supreme Court is defined, is the marker for the degree of autonomy a country’s Judiciary as a whole can exercise. A weak or tepid Supreme Court will ultimately signal a weak and timorous judiciary collectively, because lower courts generally will look to the body language of the Supreme Court for direction in those situations where significant government interests are implicated. Therefore, most governments will want to control or emasculate the Supreme Court when strategic political interests are at stake, or when they want to push through controversial policies.
We’ve seen this happen, for instance, in 2007, when then Pakistan President Pervez Musharaff, suspended the Pakistani Chief Justice at the time, Iftikhar Chaudhry and ultimately suspended him, so he [Musharaff] could run for another term of office. We’ve seen this too under the President Rodrigo Duterte government in Philippines, when he removed a sitting Chief Justice and packed the Supreme Court with Justices of his choosing who, according to one writer, were “… sympathetic toward – and in salient cases, unwilling to rule against—the President”.
In a sense too, we’ve seen this happen under the current Nigerian government. In 2019, President Buhari asked the CJN to fill existing Supreme Court vacancies. Later that year, the NJC recommended four Justices to President Buhari for appointment to the Supreme Court. The President sat on this recommendation, for nearly a year. It was not until another set of four names of nominees for Supreme Court positions was submitted to the President in September 2020 by the NJC, did the President send the names of the total of eight Supreme Court nominees to the National Assembly for confirmation as Justices of the Supreme Court. In spite of this brazen arm-twisting blackmail of the Presidency, the Nigerian Judiciary sat back quietly, without muttering a word.
When a Supreme Court of a State is “politically captured” by the government, the entire Judiciary of the State, in a sense, almost is. The Judiciary as a whole, becomes a paper tiger, strong on paper, but weak inside, unable to assert its independence – and authority – stand up to the government, defend the rule of law or the civil liberties of citizens. A Judiciary constrained and constructed in this form, will naturally find much of its role in interpreting law in an austere, technical form, exploring any angles from which it can avoid asking difficult questions, taking the government on, or making government accountable.
And, unfortunately, we see patterns of this kind of weakness in our Judiciary, and, connotatively, in our Supreme Court. In its defence of civil rights and resistance to the culture of impunity that has bedevilled governance, our Judiciary has struggled to register a footprint. After citizens do the only thing they can do when abuses occur, that is, approach the courts, court judgements and orders have now turned out to be largely hollow, pyrrhic victories. They are routinely ignored, flouted or disobeyed by government and its agencies, and no court has mustered enough conviction to use their robust authority to stamp their foot down and enforce their decisions.
Even the Supreme Court, when one such matter came up before it, found a way to say that a security agency could hold on to a person who had been granted bail by a court with as much shenanigans as it can muster. Kolawole Olaniyan, Amnesty International’s Legal Adviser says over 40 judgements and orders of courts have been disobeyed by the current government. Even that number is likely to be under-reported, all things considered, but no government official has been held in contempt of a court’s authority. Yet, on the very day a young Lawyer would raise an issue about safety in the courtroom, a presiding Chief Judge dispatched him to prison for contempt with implacable haste.
Indeed, up till this time, many court judgements in favour of victims of abuses by security and law enforcement agencies cannot be enforced, because courts are insisting that the government must consent to being made accountable through monetary payments to victims of abuses before they, that is, the courts, can exercise their own constitutional powers to do so, as obnoxious as this sounds. Unless a Judiciary is able, in word and action, to stand as a bulwark against tyranny, that Judiciary is a false hope, and a false emblem of democracy.
Nigerians feel short-changed by their Judiciary, and by what many feel is a surrender of its constitutional authority. Olumide Akpata, outgone President of the NBA, in his characteristic forthrightness said recently that: “There is near-universal agreement that public confidence in the Judiciary and indeed, the legal profession, is at an all-time low”. This is why the Supreme Court matters, and why appointments into that court must assume high importance. If we do not get appointments into the court right, and if the next appointments do not target a revitalisation of the true spirit of that Court, and represent Nigeria’s best foot forward, nothing will likely change. And Nigerians will be poorer for it.
The Advocacy to Broaden the Stripes of the Bench
Could the limitations of the Supreme Court reflect the fact that, for decades now, the Court has had a fairly homogenous stripe of backgrounds recruited into it? Since November 2014 when the current Judicial Appointment Guidelines were made, 14 Justices have been appointed into the Supreme Court. Although the Judicial Appointment Guidelines provide that persons who meet the constitutional qualifications and can demonstrate the requisite track record can be considered for Supreme Court appointments, no person outside of serving Justices of the Court of Appeal have been appointed into the Court. This longstanding pattern of bias against the consideration of “outsiders” for appointment into the Supreme Court, should even offend the Constitution of Nigeria which in Section 17(2)(a) expressly states that “every citizen shall have equality of rights, obligations and opportunities before the law”.
Conclusion
The advocacy to diversify or amplify the backgrounds and credentials of candidates appointed to the Supreme Court is, in some sense, rooted in the belief that, as the Judiciary casts its net further ashore, it can attract those who represent its front foot, and offer the best possibilities for invigorating the court, and entrenching the vitality, scholarship, but more importantly, the spirit we want restored in that distinctive court of policy. A Judiciary that is unafraid of standing up to unruly governments.
Going forward, Nigerians want to see, not more of the Supreme Court of Nigeria, but of the Supreme Court for Nigerians; a Supreme Court that possesses the right kind of vision, creativity, versatility, conviction and inventiveness for building the blocks upon which we can found our hopes for equal and true justice in our nation, not the Supreme Court of cut-and-dried legalisms. A Supreme Court that gives the Judiciary a new identity, and renews respect for it from the other branches of government. And more importantly, from the Nigerian people.
Joseph Otteh, Executive Director, Access to Justice; Recipient of the Gani Fawehinmi Award of the Nigerian Bar Association
