ENTRENCHING THE RULE OF LAW (1)

There is urgent need to strengthen the Supreme Court by appointing more Justices

At his valedictory last Friday, retiring Justice Dattijo Muhammad of the Supreme Court made damning allegations that touch on the rule of law in Nigeria. From overconcentration of oversight and ‘absolute power’ in the hands of the Chief Justice of Nigeria (CJN) to delivering controversial judgements that have no basis in law or commonsense, Justice Dattijo was brutally frank on the rot within. After highlighting how most of the appointments rest with only the CJN, as chairman of the National Judicial Council (NJC), Dattijo noted: “Such enormous powers are effortlessly abused. This needs to change. Continued denial of the existence of this threatening anomaly weakens effective judicial oversight in the country.”

While several critical issues have been raised by Justice Dattijo, we will limit this intervention to two. One, depletion of the Supreme Court bench to 10 members. Two, how election-related cases have compromised the judiciary in Nigeria. On the first issue of vacancies, against the background that the 1999 Constitution (as amended) prescribes 21 Justices as the full complement of the court’s bench, the requisite number now falls short by 11. That has dire implications for the administration of justice and rule of law in Nigeria. “A single drop in the number of justices here brings about a sudden increase in our workload,” the CJN, Olukayode Ariwoola recently lamented.

However, beyond the issue of depletion in number, there are several concerns about justice administration in Nigeria that should also be addressed. While the NJC must ensure that the apex court is fully constituted with 21 Justices in line with the provision of the Constitution, we suggest a quick return to the glorious era of the Court when it comprised of vibrant judges appointed from the high court and court of appeal as well as from among law lecturers and lawyers in legal practice. That will not happen, if as alleged by Justice Dattijo, the CJN acts unilaterally.

The apex court is the ultimate determinant of questions of justice in the land. Beyond it, the next level of appeal is to God! Therefore, the right of every citizen to justice, the entire principle of rule of law and equality before the law which are fundamental to the existence of a democratic order reside in the apex court. Minimally then, those who are appointed must inspire in the citizenry and the international community a certain confidence derivable from the meritocratic rigour of their selection process.

Initiating the process for appointments into the court is the prerogative of the NJC. But many have also observed that the process is flawed ab initio. The first consideration is geopolitics, which is about where such nominees come from. After that comes the practice of elevating only justices of the Court of Appeal to the Supreme Court. The argument has always been that senior lawyers with pedigree and respected academics should be appointed to the Supreme Court to make it more virile. Furthermore, this may be the time to restructure the NJC in such a manner that removes it from being an appendage of the CJN.

Meanwhile, when the list of nominees is finally submitted to the Senate, the lawmakers must also recognise the enormity of their responsibility especially when it comes to the confirmation hearings. The object of these hearings is first to reassure the public that persons nominated to become Supreme Court Justices meet the criterion of ‘fit and proper persons.’ In addition, such nominees must possess the appropriate requisite qualifications in a proven manner. Reducing such hearings to the banality of ‘take a bow’ or asking questions that require no rigour will be nothing but a gross disservice to the administration of justice in Nigeria.