JUDICIAL APPOINTMENTS AS NETWORK OF CORRUPTION

Chidi Anselm Odinkalu argues the need for judges to be appointed on merit

“Fools at the top would cause damage to any system not to talk of the fragile institutions of a fledgling democracy.” 

Charles Archibong, A Stranger in Their Midst: A Memoir, 97 (2021)

            In the last week of April, 2024, Chief Justice of Nigeria, (CJN) Olukayode Ariwoola, co-convened and chaired a “National Summit on Justice” in Abuja, Nigeria’s federal capital. Addressing the participants “with a profound sense of responsibility”, the CJN invited them “on a journey of comprehensive reform to ensure that justice is not only dispensed but also perceived to be dispensed fairly and impartially.” More specifically, he asked them to identify “gaps and inconsistencies that hinder the efficient administration of justice.”

            No issue is as afflicted with such gaps in knowledge and inconsistencies of practice and yet so dispositive of outcomes in justice administration as judicial appointments in Nigeria. Yet, it is the one area about which little is public and debate is discouraged.

            On 21 December 2023, the Senate consented to the appointment of 11 new Justices of the Supreme Court, all of whom used to be Justices of the Court of Appeal. In addition to the 11 vacancies, mortalities and retirements together combined to create a total of 22 vacancies that the NJC approved to be filled on the Court of Appeal bench. On 24 January 2024, the President of the Court of Appeal, (PCA), Monica Dongban-Mensem, with consent of the National Judicial Council (NJC) led by the CJN, wrote to all heads of courts in the country to request nominations to the Court of Appeal.

            Three years earlier, when they met on judicial elevations to the Court of Appeal on 19 November 2020, the Federal Judicial Service Commission (FJSC) had approved a rule proposed by Monica Dongban-Mensem, that “judges that had not spent up to five years on the Bench” and “those who would not spend up to five years if appointed before retirement” should not be considered.

            On 2 April 2024, the same FJSC approved 22 nominees by Monica Dongban-Mensem for appointment to the Court of Appeal, including six from the north-central; five from the south-east; four from the south-west; three each from the north-west and south-south; and one from the north-east. To reprise the formulation of Chief Justice Ariwoola, this list is full of “gaps and inconsistencies.”

            One of the nominees from the north-central is Eleojo Enenche from Kogi State. He was only appointed a judge of the High Court of the Federal Capital Territory (FCT) in November 2021 from his then position as personal assistant to the Chief Judge of the FCT High Court. Enenche spent nine months attached to Olukayode Adeniyi, a senior judge of the same High Court. At less than three years as a judge of the FCT High Court, few of his cases would have come to judgment and it is unlikely that any of his judgments would have been tested on appeal. On any objective reading of the applicable criteria, this is at best a profoundly premature preferment.

            Eleojo Enenche is not the only one in this category. Sister-in-law to a senior politician and former junior to an influential Senior Advocate of Nigeria (SAN), Victoria Nwoye, the nominee from Anambra State, became a lawyer in 2005 and worked in the Customary Court system in Abuja before being sworn in as judge on 2 December, 2019. She is currently reading for an LL.M at the Nnamdi Azikiwe University in Awka, the State capital. Of the 30 judges currently in service in Anambra State High Court, she is dead last at number 30 in seniority and clearly below five years as a judge.

            Born on 9 March 1959, Henry Aja-Onu Njoku, the nominee from Ebonyi State, does not have five years before mandatory retirement at 70. Nominated from Lagos State, Lateef Lawal-Akapo was born 6 August, 1959. From Nasarawa State and born on 2 November, 1959, Abdullahi Liman is currently the third most senior judge in the Federal High Court. None among these three has judicial shelf-life to spare for the Court of Appeal.

            The applicable rules of the NJC require all judicial nominations to be accompanied by a “detailed medical certificate of fitness issued by government hospital or medical institution.” Although health information is ordinarily confidential, this requirement makes the health status of judicial nominees a matter of public interest and for good reason too

In June 2023, Nyesom Wike, the husband of one of the nominees from the south-south, Eberechi Nyesom-Wike, publicly announced that she had been diagnosed with cancer in 2022. Ordinarily, cancer survivorship is computed at the threshold of five years post-diagnosis. It is proper and human to wish a cancer patient full recovery. It is a brutal and relentless disease. But it is doubtful that advancing a cancer patient to an equally relentless judicial office necessarily enhances the cause of their wellbeing (unless the administration of justice is not the primary consideration).

On this list of nominees to the Court of Appeal, Oyo State, which already has two Justices of Appeal, will receive another two, the only state to be so favored. This will bring to four the number of Justices from the State from which the out-going CJN hails. By contrast, Ogun State, which is also in the south-west, has only one Justice of Appeal – Adebukola Banjoko. In this round of appointments, they get none.

To understand the perverse incongruities in the Court of Appeal preferments, it is relevant to mention that there is also a contemporaneous process of hire into the bench of the FCT High Court. That list contains a daughter-in-law of the CJN, a daughter of the PCA, and a daughter of the current CJ of the FCT, among many judicial daughters on it.

It does not take a major feat of insight to figure out that the CJ of the FCT High Court, the PCA and the CJN are clearly doing mutual back-scratching in judicial appointments. The CJN gets whom he wants into the Court of Appeal and the FCT High Court in return for looking the other way with what goes on in the court systems run by the PCA and the FCT Chief Judge. Meanwhile, the FCT Chief Judge and the PCA square nomination accounts too. In so doing, these three arbitrarily retrench applicable rules and reduce judicial appointments to cynical transactions. There’s no need to add “for profit”.

A recent article about this CJN notes “his nepotistic appointments, especially his unbridled appetite for Iseyin-centrism and shamelessly keeping too much in the family.” Iseyin is the community in the Oke-Ogun area of Oyo State, south-west Nigeria, from which the CJN hails. The author seems oblivious to the contradiction when in another breadth he invites his readers to commend the same man for “being prudent and transparent with public money.” It is too much to expect anyone to produce evidence of financial breach by a person whose auditor is his own blood brother.

But such evidence not necessary in order to show that the methods of the CJN and his coterie is corrupt. He sits at the top of what is clearly a conspiracy by those responsible to subvert the rules governing judicial appointments in order to prefer members of their own families or intimate networks. It is condemnable because it makes judicial appointments hostage to irrelevant considerations and the judiciary liable to capture. It also disincentivizes honest, hardworking judges.

This is also a clear violation Rule 11(iv) of the Code of Conduct for judicial officers in Nigeria which requires that “in the exercise of his administrative duties, a judicial officer should avoid nepotism and favoritism.” The irony is that Olukayode Ariwoola would not be able to get away with this tendency if he were to be Adajo Agba (Chief Justice) of Iseyin or of Oke-Ogun. That is a sad commentary on the current state of the judiciary that he will leave behind when Olukayode Ariwoola departs from office on 22 August 2024.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu