Judicial Officers New Retirement Age Bill: Matters Arising

A fortnight ago, the Senate directed the Clerk of the National Assembly, to transmit the Constitution of the Federal Republic of Nigeria (Fifth Alteration) Bill No. 20 of 2022, to President Muhammadu Buhari for his assent, in line with the provisions of the Authentication Act. The Bill seeks to ensure uniformity, in the retirement age and pension rights of judicial officers of all superior courts of record. It seeks to extend the retirement age of Judges, from 65  to 70 years. If this Bill receives the President’s assent, judicial officers of the various superior courts of record listed in Section 6(5)(c)-(i) of the Constitution will have a synchronised retirement age of 70 which only the Supreme Court and Court of Appeal Justices enjoy, instead of the 65 years that currently obtains. What purpose would this serve, in the justice delivery system of the country? Will it improve the efficiency and output of judicial officers, in the hierarchy? What are the pros and cons of this synchronisation? Stephen Kola-Balogun, Dr Akpor Mudiaga-Odje and Bayo Akinlade do an in-depth scrutiny of the matters arising from this issue 

Is there a Need to Increase High Court Judges’ Retirement Age?

Stephen Kola-Balogun

Introduction 

Last week, the National Assembly directed its Clerk to transmit the Constitution Alteration Bill No. 20, which purports to approve a uniform retirement age for judicial officers in Nigeria to President Muhamadu Buhari for his signature and assent. This followed the adoption of a motion titled: “Passage of Constitution (Fifth) Alteration Bill No. 20 (Uniform Retirement Age for Judicial Officers) 2023”. The Bill seeks to extend the retirement age of High Court Judges from 65 to 70 years. Currently, the mandatory retirement age of the Court of Appeal and the Supreme Court Justices as provided for under Section 291 of the 1999 Constitution (as amended) is 70 years. 

Section 291(1) and (2) of the Constitution provides as follows:

(1) A judicial officer appointed to the Supreme Court or the Court of Appeal may retire when he attains the age of sixty-five years, and he shall cease to hold office when he attains the age of seventy years.

( 2) A judicial officer appointed to any other court other than those specified in subsection (1) of this section may retire when he attains the age of sixty-years, and shall cease to hold office when he attains the age of sixty- five years.

However, the Uniform Retirement Age Bill only seeks to bring  the retirement age of High Court Judges to be at par with that of the Justices of the two appellate courts. The motion which was sponsored by the Chairman of the Senate Ad hoc Committee on Constitution Review, Ovie Omo-Agege, is said to be in line with the provisions of the Authentication Act, and that it also meets the requirements of the constitutional amendment provisions outlined under Section 9(2) of the 1999 Constitution (as amended).

1) The Position of Magistrates

To begin with, the title of the Bill namely Uniform Retirement Age for Judicial Officers and Pension Rights, is somewhat misleading. This is because the Bill merely  seeks to extend the retirement age of High Court Judges from 65 to 70 years, but Judicial Officers are typically categorised as Judges, Magistrates and even other puisne judicial office holders or officers of courts of limited jurisdiction. 

The Black’s Law Dictionary 6th Edition, at page 848-849 defines a ‘judicial officer’ as: A Judge or a Magistrate. The term in popular parlance applies generally to any officer of a court, but in the strictly legal sense, applies only to an officer who determines causes or renders decisions in a judicial capacity. This undoubtedly, would include Magistrates. This is further buttressed by Section 6(1) and 6(5)((j) & (k) of the 1999 Constitution as amended. Section 6(1) states that the judicial powers of the Federation shall be vested in the courts to which this section relates being courts established for the Federation.

Section 6(5)(j) further  provides as follows :

“such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws”; 

while Section 6(5)(k)  provides as follows :

“such other courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws”.

From the foregoing, Magistrate Courts are certainly recognised by the Constitution and Magistrates clearly fall within the scope of the definition of judicial officers under Section 291(2) of the Constitution, yet, the National Assembly appears to want to exclude Magistrates from the increased retirement age. Could this be because Section 6(3) of the Constitution only lists certain courts as superior courts of record, and the said list does not include Magistrate Courts? That being the case, Section 6(3) & (5) of the Constitution ought to be amended to include Magistrate Courts explicitly. 

Another argument could be that, since the remuneration of Magistrates is the responsibility of State Governments and not that of the Federal Government as in the case of State and Federal High Court Judges, the National Assembly have excluded them from their amendment Bill; but, they are judicial officers and they do come within the ambit of Section 6(5) of the 1999 Constitution. The above suggests that the Uniform Alteration Amendment Bill No. 20 for Judicial Officers, is flawed. 

During the Workers Day celebrations held on the 1st of May, 2023, the President of the Nigerian Labour Congress (NLC), Joe Ajaero, demanded that the age of retirement and length of service in the entire Public Service, including the Civil Service should be reviewed upwards to 65 years of age or 40 years of service, whichever is earlier. There is currently no Bill to this effect before the National Assembly as far as I am aware. If however, Magistrates and other cadres of judicial officers are not included in the Bill now awaiting Presidential assent, this would create an ever-widening disparity between Magistrates and Judges. Magistrates may even be better off being classed under the public or civil service categories, if the NLC eventually get their way. This would greatly affect the morale of Magistrates and the overall balance amongst judicial office holders, to the detriment of the Judiciary in general. 

2) Consultation

It is due to obvious flaws such as the one highlighted above, that makes it prudent to always engage in a wide range consultation process or exercise amongst judicial officers and other relevant stakeholders. Typically this should ordinarily involve associations and regulatory bodies such as the National Judicial Council (NJC), Nigerian Bar Association (NBA), the Body of Senior Advocates (BOSAN) and other public or statutory bodies, who will take time to respond to the consultation process, give appropriate advice, and then outline their considered recommendations and relative benefits or otherwise of increasing the judicial mandatory retirement age of High Court Judges, and it’s likely effects on other cadres of judicial office holders. 

Pros and Cons

There may, of course, be justifiable  arguments for increasing the mandatory retirement age for judicial officer holders generally, in that this may be seen as essential to preserving public confidence in the judicial system, while at the same time protect judicial independence by alleviating the need for constant individual assessments and removing the possibility of judicial office holders being removed at the whim of an errant executive. It may also be seen to support judicial resource planning. 

But, on the flip side, increasing the retirement age of High Court Judges may stifle the steady flow of new appointments to the Bench. This could also affect the overall development of the Judiciary, especially if you have a crop of intellectually lazy or corrupt Judges who need to be weeded out. Increasing the retirement age will make it more difficult to get rid of these intellectually lazy and/or corrupt Judges in favour of new, forthright, honest and hardworking talent. 

Another point worth considering, is the need to be able to determine the average life expectancy of citizens here in Nigeria, so as to ensure that the Bench not only reflects whatever our life expectancy is, but also provides judicial office holders (and potential office holders) greater flexibility in either choosing the right moment when to retire, or when to apply to become a Judge or Magistrate. It is equally vital, that we have sufficient judicial resources to meet the changing demands in our courts and tribunals. For instance, I see no conceivable reason why retired Judges can’t be used in our election petition tribunals and election petition appeal tribunals, instead of the need to fill these tribunals up entirely with serving Judges, thereby causing severe disruptions to our appellate, civil, criminal and commercial law systems which invariably takes years to address. These are the sort of fundamental issues that a consultation paper would look into, and properly address. 

The only way we can strike the right balance between increasing the retirement age for judicial office holders, along with whatever benefits there may be to the justice system in retaining their judicial expertise for a much longer period instead of the need to bring in fresh and younger talent (which would invariably become a lot harder and difficult if the retirement age is increased), is by having a proper consultation process involving all stakeholders. 

Others may also argue that having a higher judicial retirement age will encourage applications from a more diverse range of candidates, including those who might suddenly consider a judicial career later in life or perhaps, those who have had to endure extended career breaks as a consequence of persistent struggles in trying to balance professional and family responsibilities. Such people could consider joining the Bench much later in life, once they become a lot less burdened.  Increasing the retirement age could equally provide opportunities for Judges who have chosen to join the Bench much later in their careers, to now have sufficient time to impress and develop the necessary skills and expertise to eventually progress up the judicial ladder and become appellate Judges, instead of having to retire from the Bench when they have just about garnered that essential knowledge and experience. 

There are indeed many pros and cons, but it’s not for the executive or the legislature to decide upon these salient issues in their respective Assemblies or Ministries, without first embarking upon a proper consultation process and exercise. It is highly essential that the Judiciary and other relevant stakeholders are carried along and fully consulted as an independent arm of government, so that all these important issues of concern are fully assessed and deliberated upon. Unfortunately, the National Assembly have fallen well short, even if there was some sort of meaningful attempt to do this. Neither does it help, when the likes of the Senate President Ahmad Lawan, openly asserts that: “This is a very important amendment to the Constitution, and we are happy that it is going to be part of our legacy as the 9th National Assembly”. It is not just about securing a constitutional amendment and a legacy for legislators, but more about ensuring that the relevant stakeholders have been consulted in line with the doctrine of separation of powers, and that the majority of those consulted approve of the constitutional amendment for the right reasons. 

Conclusion 

As the judicial needs in the operation of our courts and tribunals across the country continue to widen, we need to focus more on the resourcing needs of the Judiciary. The frequency and volume of judicial recruitment, have increased in recent years. It is expected that high levels of recruitment will continue to be required in the foreseeable future, in order to meet the demands of the various judiciaries across the various States of the Federation. There are not really any real  constraints on the vast pool from which Judges are drawn, so why the need to hurriedly increase the retirement age for High Court Judges, without due and proper consultation amongst relevant stakeholders?

The Magistracy remains an important judicial office position, at least for the common man here in Nigeria. The National Assembly should not therefore, widen the divide between them and their more illustrious judicial office holders who happen to be Judges. by openly declaring that Magistrate Courts they are not a superior court of record, thereby creating and magnifying the gap between them. For all the above reasons, President Muhammadu Buhari should desist from signing into law the Uniform Retirement Age for Judicial Officers Bill No. 20 of 2023,  and instead, call for further consultations between Lawyers, judicial office holders and other relevant stakeholders.

Stephen Kola-Balogun

Retirement Age for Judges, Ought to be Lower than Appellate Court Justices 

Dr Akpo Mudiaga Odje

We retrospect in Biblical times, when Jethro, the father-in-law of Moses, saw Moses settling all disputes himself between the Israelites. Jethro then advised Moses that the settling of disputes himself will wear him down, and as such, he ought to appoint special Judges with the fear of God Almighty to help him with the settling of disputes, which also accounted for the book of Judges

Judges whether in the Trial Court or Appellate Court, are seised with the responsibility of discovering the rectitude in cases brought before them. They are seen as persons who represent the God of justice, in the discharge of their duties on earth.

The gravamen of today’s discourse is whether, we should standardise the retirement ages for Judges at all levels in our Courts.

It’s our modest view that this will be difficult, though it’s not impossible to implement.

Trial Court Judges are Involved More in the Proceedings Before Them

Indeed, the Trial Courts, for instance a Federal High Court, High Court, Magistrate Court and allied inferior courts, are usually saddled with the hearing and determination of cases filed before them. They are the ones charged with investigating and discovering the rectitude of truth of a case brought before them, in our legal system.

They write manually, listen to evidence of the parties, including cross-examination, and usually deliver series of Rulings on objections arising from interlocutory issues as the case may be, before they deliver judgement. Thus, there is a much greater physical, mental and cerebral challenge required as a Trial Court Judge, than an Appellate Court Judge.

I would therefore, suggest the age for retirement of a  Judge ought to be lower than that of an Appellate Court Judge, because of the intensity of work required to be done at trial court, before judgement is eventually delivered.

Even though the Rules of Court have tried to reduce the hectic task of writing down evidence at the trial court by the introduction front-loading system, the trial Judge is still nevertheless, encumbered with the herculean task of writing, questioning and consistently  intervening in the proceedings before them. 

To that extent therefore, the Trial Court needs a Judge that will be, first of all, physically fit and mentally sound to preside over proceedings relating thereto.

However, at the Appellate level, the Justice is merely saddled with reading through the records of appeal as compiled, which usually includes all relevant documents, pleadings and judgement delivered by the Trial Judge.

Appellate Court Judges Have Lesser Work to do on Appeals, Unlike Trial Court Judges

In addition, in the Appellate Courts, we have three Judges who assist each other and the Supreme Court has a minimum of five Judges at all times to hear ordinary appeals, and seven Justices on constitutional matters. And, as such, an Appellate Court Justice has a lesser need for sound physical disposition to work in his court, as he does not really write, investigate or deliver series of Rulings like a Trial Court Judge.

In other words, whilst a frail looking Appellate Court Judge can still preside over hearing and determination of an appeal, same cannot handle a Trial Court matter because of physical rigours required to ascertain the truth before that court.

In other climes like the United States, at a point, Appellate Judges were allowed to even hear appeals at 90 years! However, same was not applicable to Trial Court Judges for reasons highlighted and cited above.

In an Appellate Court, more of mental compos mentis and cerebral alertness is required to hear and determine appeals, whereas at the Trial Courts both mental compos mentis and physical soundness must be possessed contemporaneously by the Judge.

Under our Constitution, a High Court and Federal High Court Judge are required to retire at the age of 65, whilst Appellate Courts must retire at 70 years.

Conclusion

It is our view, that based on the foregoing adumbrations, the retirement age for Trial Judges, should be retained, whilst Appeal Courts can be increased to 75 or even 80 years, once the mental and cerebral status of the Justice is still intact, notwithstanding physical constraints, as at the Appellate level, a Justice is more or less acting as a Judicial Lecturer, examining the judgement delivered by a Trial Judge from the rigorous process required by Law and Rules of Court at that level.

Consequently, and to my mind, it will be very difficult and highly unfair to harmonise or make as same, the retirement age for a Trial Judge and that of an Appellate Court Justice in Nigeria.

Dr Akpo Mudiaga Odje, LLD, LLM, (Merit), (London); Member, British Council, Honorary Member NIM, RDN; Fellow of Human Rights Network International (HURNETI); Fellow, Institute of Human and Natural Resources (FHNR)

Retirement Age of Judges and Justices is Irrelevant

Bayo Akinlade

Extending the retirement age of all Judges of the superior courts, is not as encouraging as we had hoped. I would have expected the National Assembly to pay more attention to the infrastructure and funding of the Judiciary, with a view to appointing more Judges and Magistrates.

 The unfortunate issue I grapple with, is the state of our Magistrate Courts and Customary Courts, where more than 60% of all disputes and litigation exist.

Challenges

We also have a challenge within the Judiciary, with the use of technology. Many of our current Chief Judges, Justices of the Court of Appeal and the Supreme Court are not internet savvy, and are used to the old ways of justice delivery. By extending the retirement age we have inadvertently set ourselves back, because most Chief Judges will now have five more years or even more, to maintain the status quo.

 With the financial restrictions or challenges being faced by the Judiciary, we also now have the problem of stagnation. We will be unable to employ new minds into the Bench, as a result of this new law.

 With the current workload and docket of an average Judge, it is practical suicide to extend the age to 70 years old, when Judges currently in their 50s have numerous health issues they are dealing with, as a result of low income and the general economic pressures of the nation.

Corruption is bound to increase, with this new law coming into play.

The Government ought to have considered the economic situation and the work pressure of Judges, before extending the age limit. The Government should also focus on lower courts, provide more support and funding for the lower courts, ensure that there are enough Judges and Magistrates who handle less than 20 cases a week. It makes more sense to extend the age limit when Judges only handle five cases a day;  but, our Judges are handling 15 to 30 cases per day, which means that in one year they may hear one case fives times only in one judicial year.

 The Government now needs to provide an enabling environment for Judges to operate in full capacity after the age of 65, or we may have a breakdown of the judicial structure.

Bayo Akinlade,  Immediate Past Chairman,  NBA Ikorodu Branch;  National Publicity Secretary, the Nigerian Law Society