That International Bar Association Symposium on Judicial Appointments 

‘Mr Fapohunda, I do not think any Nigerian Lawyer will take pride in washing the dirty linen of the state of the justice sector in Nigeria, in the IBA space. The reality, learned silk, is that we are all frustrated. For more than two decades now, we have witnessed a succession of governments that are simply blind, deaf and please, forgive the cliché, dumb to the unsatisfactory state of the justice sector, particularly the dire condition of the Judiciary and the harm this is having on the image of our country. May be the solution Sir, is to internationalise our frustration and hope that the shame will spur this Government into action.’

-Folakemi (surname withheld), Participant at the International Bar Association Conference, Paris, France, 29 October – 3 November 2023

A System Incapable of Producing Anything Positive 

Listening to the different contributions by Nigerian Lawyers at the Rule of Law Symposium on assessing the impact of the judicial appointments process in undermining the rule of law last Friday at the IBA Conference in Paris, reminded me in many ways of a Public Interest Lawyers Conference I attended in New York recently. 

I was the Guest Speaker, and as the only African resource person, the session drew an unusual large participation, specifically from those who wanted to listen to an African perspective in a conference that was largely dominated by American and European facilitators. I had confidently made a presentation on the Administration of Justice System in Nigeria, highlighting the challenges and of course, the ongoing developments showing that while progress was regrettably slow, there has been some positive developments. 

I had barely finished my presentation when this Nigerian Law Professor, on sabbatical leave from one of our State Universities, lambasted me for what he described as my ‘horribly misleading presentation’ and my ‘pathetic attempt to present the image of a justice system that is capable of producing anything positive’. In his words, ‘there is nothing that is worth commending about the Nigerian justice system. The Judiciary, the legal profession, the Police, the correctional services are all products of a system that is incapable of delivering justice in any of its ramifications’. He also had plenty unprintable words to say about the Government of Nigeria, singling out our former President for special derision. The Professor was so agitated, that for a moment I was almost sure he was going to walk up to the Speakers table where I was sitting and throw a punch at me. The Nigerian participants at the Conference made up of some State High Court Judges and Lawyers, were not going to take the diatribe against them lightly. Such was the uproar from them against the Professor, that the Chairperson of the session after several calls for calm, had to bring the session to an unceremonious end. 

IBA, Judicial Capture & Bribe for Judicial Appointments 

Thankfully, the IBA Symposium on Rule of law and Judicial appointments was not as dramatic, even if memorable. In summary, the Immediate Past Attorney-General of Abia State had made a compelling intervention about his experience in Abia State. He spoke about the integrity challenges inherent in the process of Judicial appointments in Abia State, citing the use of money and the influence of his Governor on who gets appointed to the Bench. He recommended a review of the process of appointing members of the Judicial Service Commission, in a manner that guarantees independence. 

It was the intervention of the President of the Nigerian Bar Association (NBA), that stirred things up. The NBA President was obviously upset by the allegation of Lawyers bribing for judicial appointments. It was clear that, he did not think the IBA was the place to make this allegation. He referred to provisions of our Rules of Professional Conduct, stating that it was a breach of those rules for a Lawyer to be aware of corrupt practices and do nothing. Such was the intensity of the back and forth that the Chairperson of the session, Barones Helena Kennedy, threatened to ask the ‘acteurs principaux’ to take the debate outside the meeting room. 

The immediate Past NBA President’s intervention, was largely in agreement with the Professor that was going to punch me at the New York Conference. He spoke about ‘judicial capture’ by the Executive. He also decried the poor condition of judicial service, particularly judicial remuneration. According to him, the process of appointment of judicial officers in Nigeria is so fraught with institutional irregularities, that it is almost impossible to produce quality judicial officers. The symposium ended amicably without any more drama, except that the former Attorney-General, Abia State lost his wallet in the heat of the debate. 

On my part, I do not think that the IBA has the solution to our justice sector problems. This is not so much about the IBA, but my loss of faith in the what is called ‘the international community’. Over the years, my thoughts have evolved from a believer in international institutions to a sceptic of the place of international regimes in solving local governance problems, specifically as it relates to issues of access to justice and respect for fundamental human rights. 

In Search of a Homegrown Solution

In my considered opinion, the solution lies at home. I am simply tired of going to these international meetings, where Nigeria is portrayed as a country of anything goes. By the way, my share in the euphoria in the aftermath of the P&ID judgement, is limited. True, judgement against Nigeria would have had serious consequences for our struggling economy, but when all the hullabaloo about victory is settled, the judgement will be cited as evidence of a country steeped in corrupt practices. In the end, it is the value of our green passport that will be diminished and its holders – Lawyers and non-Lawyers alike, will be victims of this devaluation. 

I share the frustration of my colleagues, at the slow pace of reforms in the justice sector. By next week, they will all return to the hustle of legal practice, the thoughts and outcome of the IBA will be a distant memory.  In addition to my legal practice, as Co-Chairperson of the NBA Working Committee on Judicial Remuneration, I have to work on these issues on a daily basis. Engaging with the three arms of the Federal Government and experiencing firsthand, the institutional obstacles that continue to retard progress in the sector. I hesitate to say that I have been on every Presidential initiative dealing with the reform of the justice sector, since 1999. Our input, including energy, commitment and dedication to the cause has not been matched by tangible outcomes. Such is the quality and volume of available literature on the subject-matter, that what is required is simply for an inspired administration to put these together and commence a phased, costed and time bound implementation programme. 

These reports clearly state that, the procedure for recommendation of appointment of judicial officers by the National Judicial Council (NJC) and Federal Judicial Service Commission (FJSC) or the States Judicial Service Commissions (JSC), is not open to the public. This lack of transparency, often leads to appointment of judicial officers with limited capability. That the judicial appointments process must be reformed, according to the principles of equal opportunity and fairness. That there should be competitive and fair appointment, for all Judicial officers. NJC must also begin to consider thorough examination of prospective candidates  via written tests, interviews and comments from the public. These are necessary tools, for searching for  the best candidates.

In Conclusion

My frustration is more pronounced, on the issue of judicial remuneration. What manner of country takes pride in subjecting its Judiciary to penury, and yet, demand high quality of justice delivery?How is it even possible that, despite the findings of several Presidential initiatives that judicial officers have been on the same salary for almost  two decades, there is no sense of urgency to reverse the situation. A key finding of the Presidential Technical Committee on Judicial Remuneration in its 2018 report stated that, ‘from May 1999 to March 2011, the Federal Government has reviewed the Public servants and Political Officers salary on four occasions. Specifically in May 2000, 2005, 2007 and 2011. Judicial officers have been on the same salary structure for more than 14 years, whereas the salaries of the entire workforce, the Military, Intelligence and other Chief Executives in Nigeria were reviewed in 2011. This has resulted in a situation where some of the Public Office holders whose salaries prior to 2011 were below that of the Judicial Officers, now earn more than them. Presently, the major parameters for pay fixing and pay relativities seem to have been abandoned in the consideration of the salaries of Judicial Officers. The Judicial Officer’s present salary, is evidence of a downgrade in the ranking of their job positions.’

It is time more Lawyers concerned about the current state of the justice system, especially those with international practices be more vocal at home. Within the legal profession, an important challenge is the disconcerting few Lawyers that are interested in public interest advocacy, even on matters of reforms in the justice sector. I find this strange, given that there is nothing these reports have said that practicing Lawyers do not experience on a daily basis. Delays, uncomfortable court environment, poor quality judgements, corruption within the judicial bureaucracy, are some of the every day challenges. The task of reforming our justice system, is too serious to be left to the Nigerian Bar Association. There is an urgent need for more voices.