Wanted: A Bill for an Act to Alter the Constitution

By Senator Sola Akinyede

A BILL FOR AN ACT TO  ALTER THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999(AS AMENDED) BY AMENDING PARAGRAPH 20  AND PARAGRAPH 21 OF PART 1 OF THE THIRD SCHEDULE TO THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA .

BE IT ENACTED by the National Assembly of the Federal Republic of Nigeria as follows :

The Constitution of the Federal Republic of Nigeria 1999 (as amended) in this Bill referred to as ‘The Principal Act’ is amended in Paragraph 20 of Part 1 of the Third Schedule by deleting the said paragraph 20 and substituting therefor a new paragraph 20 as follows:

1 The National Judicial Council  shall comprise the following members with not less than  one member  appointed from each of the six geopolitical zones in Nigeria.

(1)To be nominated and appointed  by a majority of all the Justices of the Supreme Court voting by secret ballot:

a A retired Justice of the Supreme Court to serve in rotation for two years.

b A retired Justice of the Court of Appeal to serve in rotation for two years.

c A Chief Judge of a State to be appointed from among all the Chief Judges of the States to serve in rotation for two years.

d One Grand Khadi to be appointed  from among  the Grand Khadis of the Sharia Court of Appeal to serve in rotation for two years.

e One President of the Customary Court of Appeal to be appointed from among the Presidents of the Customary Court of Appeal  to serve in rotation for two years.

(2)Five members of the Nigerian Bar Association who have been qualified to practise for a period of not less than fifteen years nominated by the National Executive Committee of the association:   

  (i)One of whom shall be a Senior Advocate of Nigeria who has practised in that capacity for a   period of not less than fifteen years and who shall be the Chairman of the Council serving a single term of four years and no more.

      ii) Another Senior Advocate of Nigeria to serve for two years but subject to re-appointment.

(iii) Two non-Senior  Advocates of Nigeria to serve for two years but subject to reappointment (iv) A female member to serve for two years but subject to reappointment.

v) Three persons of unimpeachable integrity not being legal practitioners  and not being  card- carrying members of any political party all of whom  must be educated to at least university level  nominated by the National Executive Committee of the Nigerian Labour Congress, National Executive Committee of the Trade Union Congress and one other distinguished Nigerian academic nominated by the National Executive Committee of  the Academic Staff Union of Universities.

2 Paragraph 21 of Part 1 of  the Third Schedule of the Principal Act is amended by the insertion of a  proviso after paragraph  21 a- j as follows :

Nothing in this paragraph shall derogate from the powers of any agency  from investigating and prosecuting in a court of law or Tribunal any judicial officer whose conduct in the opinion of such agency constitutes a violation of any law or code, and the exercise of the powers of the Council shall not be a condition precedent to the exercise of the powers of such agency, court  or Tribunal.

Initiated by Senator Sola Akinyede

Dated 21^st of June 2024

                                          EXPLANATORY MEMORANDUM

The Bill seeks to alter the Constitution of the Federal Republic of Nigeria 1999 (As Amended) to reconstitute the membership of the National Judicial Council and to permit all members of the council participate fully in the affairs of the council.

               THE IMPERATIVE OF RESTRUCTURING THE NATIONAL JUDICIAL COUNCIL

‘The public reputation  of the judicial system hangs on the perceived adherence to the principles of justice. An unjust court is an illegitimate court’-  Justice Sonia  Sotomayor of the United States Supreme Court in the case of Rosales Morales v US

The credibility, reputation and public perception of the Nigerian judiciary is at an all-time low. A judiciary that once had internationally acclaimed jurists (like the late Justice of the Supreme Court Sir Udo Udoma, whose judgement as the Chief Justice of Uganda is still cited in British universities and text books, Justice Kayode Eso and Justice Chukwudifu Oputa )-now delivers judgements that are derided by  a confounded Nigerian public who to quote Justice Dattijo Muhammad ‘have become witheringly scornful and monstrously critical’ . ‘It is an open secret that  judges and court officials are bribed by litigants  to obviate delays or obtain favourable judgements’.

Among the examples of cases that shook the confidence of Nigerians:

iThe judgement of the Supreme Court in the 2020 Imo governorship election.

Iii Other  judgements of the Supreme Court  especially in political cases where such judgements are totally at variance and unrelated to reality.

Iii The judgement of the  three Justices of the Court of Appeal in the Kano State  Governorship election petition in which the court came to two opposite conclusions dismissing the appeal of the NNPP governor and  holding the APC candidate as the duly elected governor in the judgement read in open court, while the certified true copy of the same judgement upheld the appeal of the NNPP governor and declared him as duly elected.

iv The present judicial confusion in the Kano State Emirate cases in which over a 5-day period, three different judges, two in the Federal High Court which under the constitution clearly lacks jurisdiction in chieftaincy matters, and the Kano State High Court gave conflicting orders. For the Federal High Court, it a clear case of judicial impunity and utter recklessness, the chaos and confusion indicative of a weak disciplinary oversight or a dereliction of duty by the National Judicial Council (NJC) in ensuring judicial discipline.

These are all signs of a decaying judiciary and justice system

In addition to this, is the perception that the heads of the judiciary are unable or unwilling to  confront corruption  which many suspect may be responsible  for some of the bizarre judgements coming from the judiciary. There has been no serious attempt to bring to book judicial officers against whom there were clear and water-tight cases of corruption, the appellate courts preferring to save those judicial officers by deploying spurious technicalities not supported by law, our constitution or global best practices.

Example

About twelve years ago, a judicial officer  was found to have had a substantial amount of money including foreign currency in his account. The judicial officer who could not explain how he came by this amount which was clearly not fairly attributable to his income as required by the  Code of Conduct for Public Officers was charged to court for money laundering and unlawful enrichment. He did not bother to explain the source of the money, but put up a technical defence that he could not be prosecuted unless  he was first disciplined by the National Judicial Council. There is no provision in our constitution, in any law or global best practices that states that a judicial officer cannot be prosecuted unless the NJC whose authority under the constitution is restricted to  ‘exercising disciplinary control  over judicial officers’ (and not crimes) first takes disciplinary action. Indeed in the United States, and many other countries, conviction for an offence is usually a basis for commencing disciplinary action by such judicial bodies.

As expected, the high court dismissed this technical defence. But to the shock of many, the Court of Appeal upheld the technicality. The Supreme Court also agreed, discharging the judicial officer -in effect fabricating a technical immunity for judicial officers. That judicial officer is still in office today. In February 2021, in a publication in Thisday , I warned that this fabricated immunity would be extended to the police who have their own disciplinary body-the Police Service Commission as well as to the civil service which  has the Civil Service Commission. In February this year as predicted, after an eight-year trial, a Federal High Court sitting in Abuja dismissed  charges of money laundering and conversion of N21.5 billion  belonging  to the Nigeria Air Force against three of its ex-officers on the ground that being serving officers at the time of the alleged offences, they were only subject to trial by court martial. The court was obviously  relying on the same technicality  used by the Supreme Court to free the judicial officer. The  military officers could not be prosecuted in the civil courts, but since they are no longer in the military, they also cannot now be court martialled. Like the judicial officer they have been set free.

It is sad that it is the appellate courts that are deploying technicalities to enable public officers commit acts of corruption against the Nigerian state.

JUDICIAL APPOINTMENTS

To make matters worse, it is increasingly becoming common for senior judicial officers to organise the appointments of their children and relatives into the judiciary, obviously to the exclusion of better qualified candidates. In 2021, Mr Olumide Akpata former President of the Nigerian Bar Association then a member of the NJC,expressed his shock that important legal issues put to nominees for appointment to the Court of Appeal could not be answered saying that the exercise by the NJC was rushed and conducted ‘like an old school boys meeting’ with some members of the NJC saying that the candidates ‘would learn on the job.’ Learn on the job at the Court of Appeal ?!  A situation in which out of the hundreds of eligible candidates, eight of the twelve judges(almost 70%) sworn in as judges of the FCT High Court are children or relatives of senior judicial or former senior judicial officers presents a high statistical improbability without some manipulation or undue influence  and is worrisome

Nigeria has many brilliant and upright lawyers and judges and obviously what is happening is that the best are not listed for consideration. Why is this so ?

STRUCTURE OF THE FEDERAL JUDICIAL SERVICE COMMISION AND THE NATIONAL JUDICIAL COUNCIL

The body that shortlists and decides who should be invited for consideration for judicial appointments – the Federal Judicial Service Commission is headed by the Chief Justice of Nigeria (CJN)with the President of the Court of Appeal as deputy. It is also the body that advises the National Judicial Council. The body that interviews and selects the shortlisted candidates and decides who to recommend to the President for appointment as judicial officers  -the National Judicial Council  is also headed by the Chief Justice of Nigeria with the President of the Court of Appeal also as deputy.

The CJN is also responsible under the constitution for the appointment of 19 out of the 23 members (82 %) in the National Judicial Council. Almost 90%, (88%) of the members of the Council are judicial and ex- judicial officers. So when the CJN composes his list of candidates as the Chairman of the Federal Judicial Service Commission and brings it to the National Judicial Council where he is also the Chairman, who among the 19 appointees that he brought to the Council or the 88% of the judicial or ex-judicial officers most of whom are also his appointees  will have the guts or courage to oppose or challenge his decisions?

I am not aware of any country in the world  where the percentage of judicial and ex judicial officers in a body like the NJC is almost 90%.  In the United Kingdom a similar body the Judicial Appointments Commission has 15 members. Only 6 (40%) are judicial members. The Chairman as well as 5 other members are non-lawyers. In the United States of America, in most states, a majority of the members are non-lawyers and judicial officers make a minority of the membership.

To make matters worse and shocking, a proviso  to paragraph 20  of the third schedule part 1  to the constitution provides that even the five members of the Nigerian Bar Association appointed by the CJN can only sit for the purpose of appointment of judicial officers meaning that they cannot sit in respect of disciplinary matters relating to judicial officers. So a legal  practitioner who has been a lawyer for 50 years and a Senior Advocate of Nigeria for 20 years as a member of the Council  is not allowed to sit or participate if a judicial officer who has been a lawyer for just 12 years  and a judge for two years is facing disciplinary  action. I am not aware of any country in the world where this is so. In many countries even non-lawyers are allowed to, and do participate in disciplinary proceedings against judicial officers.

The present situation where  the CJN is the alpha and omega-  akin to a monarch wielding authoritarian powers leading the NJC which essentially  is a private members’ club of judicial and ex-judicial officers whose primary instinct is to at all cost protect themselves and their brother judicial officers and preserve the status quo is as follows:

1. The best materials are denied appointment as judicial officers, with members of the council preferring to appoint their relatives and favoured candidates rather than on merit.
2. Disciplinary control of judicial officers is weak and lackadaisical -a reason why judicial corruption and many scandalous judicial decisions are on the rise and the judiciary in serious decline.

This was confirmed by a retired Justice of the Supreme Court Justice Muhammad Datijjo- the second in command to the current CJN during his valedictory speech on the 27^th of October 2023 when he bemoaned the absolute powers vested in the office of the CJN. He also said ‘ As much as possible the most qualified men and women were elevated. That can no longer be said about appointment to the bench’. Finally he said ‘The institution (the Judiciary) has become something else’ Coming from a very senior judicial officer, this was damnifying.

INNOVATIONS

The anomalous and incongruous situation in which a person who heads the body(Federal  Judicial Service Commission)  that decides and prepares a shortlist of persons  for judicial offices and whose function is to advise the NJC is also the head of the NJC the body it advises and which  interviews , decides those qualified for judicial offices and sends the list of such persons to the president has been addressed by this amendment.

a)While the CJN remains the head of the Federal Judicial Service Commission, he is no longer a member or Chairman  of the  restructured NJC. The two principal stakeholders in our legal system and the justice system are the Bar and the Bench. In order to address the obviously lopsided  and monopolistic current arrangement and create some balance, while the Bench chairs one of the judicial bodies, the Bar chairs the other.

b) His powers of appointing  82% of the members of the NJC have been removed. The judicial members of the NJC are now nominated and appointed by the Justices of the  Supreme Court.

c) In order to reduce the overbearing influence of judicial officers and create a balance as in most countries, the number of judicial and ex judicial officers in the NJC (almost 90%) has been reduced to 5(about 40%) of the members. In the UK it is 40%.  The children of ordinary Nigerians- farmers, labourers vulcanisers etc have a right to aspire to judicial and high judicial offices if they have the right credentials and proven integrity. It is hoped that this amendment  will bring in fairness, transparency and balance in judicial appointments, as well as firmness and transparency in the discipline of judicial officers.

d) Members of the Nigerian Bar Association will now participate in the full affairs of the Council as in most countries.

e) In order to ensure the independence of the Council, the non-lawyer members  who are also currently appointed by the CJN are now nominated and appointed by independent and broad based organisations –  The National Executive Committees of the Nigeria Labour Congress, the Trade Union Congress and the Academic Staff Union of Universities. A person does not have to be a judge or a lawyer to understand fairness in appointments, corruption in the judiciary etc. All that is required is a good level of education and understanding. The percentage of non-lawyers in the UK is 40%. Under the proposed amendment  it is 3 out of 13 (23%)

f) Finally in the spirit of reducing  the cost of governance, the membership of the Council has been reduced from 23 to 13 with provisions that ensure that each of the six geo-political zones in the country is represented and that one of the five members nominated by the Nigerian Bar Association is a female.

PROVISO TO PARAGRAPH 21

The purpose  of this amendment is to override  the self-serving technicality manufactured by the appellate courts to prevent themselves and other judicial officers from being prosecuted by the law enforcement agencies. They should be subject to prosecution like all other Nigerians.

CONCLUSION

The National Judicial Council was established 45 years ago. Clearly, it is no longer fit for purpose. It is not working well and needs to be restructured, the membership broadened  and invigorated. That the country is in dire need of judicial reform is without doubt. That reform will not happen unless it starts with the National Judicial Council. In the last 30  or so years, high level corruption, opacity and lack of transparency in public affairs  by public officers has increased exponentially and alarmingly as a result of which access to justice by the citizen as well as access  to social rights have significantly  declined. If the judiciary, the only body that can ensure accountability by the Legislature and the Executive itself becomes enmeshed in these ills as is beginning to happen the country is finished.

SENATOR SOLA AKINYEDE  OON, LL.M – WHO WAS IN THE SENATE FROM 2007 TO 2011 SENT THIS BILL TO THE 2024 SENATE COMMITTEE ON CONSTITUTION REVIEW