In general terms, the judiciary is the arm of government saddled with the responsibility of interpreting the laws of the state and the general administration of justice. These roles are carried out by various judicial personnel, from the staff in the registries of courts to the judges who make pronouncements on the law.
In this wheel of our jurisprudence, every cog is critical for the quick and fair dispensation of justice, but the judge is especially vital. It is his sacred duty to uphold the spirit and letters of the law and he is required to do so with professionalism, with integrity and with dignity. He is not a mere civil servant exercising the functions of his office, he must, like Caesar’s wife, be seen to be above reproach.
It follows therefore that the appointment of such a person must be transparent, and only the best in terms of knowledge of the law, moral rectitude and competence would be put in charge of, not just adjudicating disputes, but in dispensing justice as well.
In Nigeria, the nomenclature ‘judge’ is restricted predominantly to the State and Federal High Courts, and National Industrial Courts. ‘Justice’ is reserved for even higher courts, to wit: Court of Appeal and Supreme Court. However, for the purpose of this paper, we will use the blanket term ‘judicial officers’ across board and restrict our scope to the courts mentioned above.
It is our intention to examine the appointment requirements of judicial officers in Nigeria, how the system has affected the course of justice, and what areas require urgent reforms.
Although the provisions of the Nigerian Constitution are clear and rather simplistic on the requirements for the appointment of officers into the bench, the predominant practice toes a more pragmatic approach. For clarity, the requirements for appointment of judicial officers are hereunder reproduced:
The apex court of the land, the Supreme Court, is established by Section 230 of the 1999 constitution and recommends a maximum of 21 Justices to make up the court. They are appointed by the president of the federation upon the recommendation of the National Judicial Council and confirmed by the Senate, as provided in section 231(2) of the constitution. A person is qualified for such a recommendation and appointment if he has been a qualified legal practitioner in Nigeria for a period of not less than 15 years.
The Court of Appeal is the 2nd highest ranking court in Nigeria. It is established by section 237 of the Constitution and is constituted by not less than 49 Justices of which not less than three shall be learned in Islamic personal law, and not less than three shall be learned in Customary law, as may be prescribed by an Act of the National Assembly.
Similarly, they are appointed by the president of the federation upon the recommendation of the National Judicial Council and to be qualified the person must have been a qualified legal practitioner in Nigeria for a period of not less than 12 years, according to section 238(3) of the constitution.
The Federal High Court is established by section 249 of the 1999 constitution and is composed of such numbers of judges as prescribed by an Act of the National Assembly. A person is appointed into the office of a judge of the court by the president, upon the recommendation of the National Judicial Council. Such appointee must have been a qualified Nigerian legal practitioner for a period of not less than 10 years -section 250 (3).
The State High Court is established by section 270 of the 1999 constitution of Nigeria and appointment as a High Court Judge is precedent on such person being a qualified legal practitioner for a period of not less than 10 years as stipulated in section 271 of the constitution. Such appointment is made by the Governor of the state, upon the recommendation of the National Judicial Council and confirmation by the State House of Assembly: The High Court of the Federal Capital Territory (FCT) Abuja and other Courts of record at the State and the FCT have their peculiar provisions.
The National Industrial Court of a State is established by the National Industrial Court Act, 2006 to adjudicate on matters bothering on employer –employee relationship. A person is appointed as a judge of this court by the president upon the recommendation of the National Judicial Council – such person being a qualified legal practitioner for a period of not less than 10 years section 2 of the National Industrial Court Act, 2006.
As is obvious from the above, the constitution and the National Industrial Court Act simply stipulate certain durations of legal practice to enable a legal practitioner’s appointment as a judicial officer. However, in practice, predominantly, a legal practitioner of 15 years for instance cannot become a Justice of the Supreme Court simply by that fact. He has often to rise through the ranks, sometimes beginning from as ‘low’ as the magistrates’ courts then to the high court and all the way up to the apex court. Again, it is also very rare to see a legal practitioner of 10 years post call being appointed a high court judge.
All these happen because of the general perception or presumption that such individuals have not garnered enough experience to adequately handle the job, regardless of how active they have been in legal practice.
We wish to reserve any discourse on extraneous factors such as godfatherism for another day, but we must agree that there are certain exceptions wherein legal practitioners who have been in active legal practice are appointed as Justices of the Court of Appeal or Supreme Court without any experience on the bench, and judges elevated from the high court straight to the apex court and similar tendencies.
One point must be made here, to the effect that the frequent deviation from the basic requirement of the constitution is to ensure that people are not appointed simply because they have practiced for the time duration but they must show that they have also been active and astute, be it in the judiciary or in private legal practice.
In any case, although few people still managed to get appointed into these higher courts by simply meeting the basic criterion set by the constitution, the vast majority of appointments were of people with longer experiences, and this has since become the practice even though it is not so stipulated in the constitution.
This paper finds these exceptions inadequate and suggests that it is high time we broke the barrier and appoint people with proven track record into the bench, even if they have only just reached the stipulated years, as long as they show outstanding performances. The key indices should be competence, and integrity, irrespective of whether they have no more than the minimum timeline of experience.
In other words, let us stop demanding more than what the constitution stipulates, waiting till we are sure people have acquired more than the required experience before we appoint them judges. The overall effect of this rigidity in such appointments, the emphasis on the number of years of practice, is having a deleterious effect on the productivity of judicial officers.
On average these days, people get appointed as high court judges when they are well into their 40s as opposed to say in their late 30s when most judicial officers would have attained their minimum timeline requirements.
The fact is that as things stand, judicial officers are losing an average of 9 years of practice because of the insistence that even an energetic, conscientious and impeccable record of practice is not enough to make you get appointed once you hit the constitutionally stipulated mark that qualifies you.
Right now the nation’s judiciary is predominantly occupied by personnel of an advanced demography, and courts regularly get adjourned after a few cases a day because the judges, mostly in their 50s or 60s needed to rest more regularly. These people would definitely have been more productive if they were given the opportunity in their younger days when they had the energy and the youth to handle much more workload.
Furthermore, this rigid attention to more years of practice has affected continuity in policy and style which is necessary to engender greater trust in the judiciary. As a result of the rising age demography of judicial officers, it is often the case that before a judge rises through the ranks to attain the position of a Head of Court, he is already so close to retirement, that he or she often has about 3-4 years to spend as Chief Judge (Justice), and in some cases just 1 or 2 years, before they retire. A new head of court comes into office and discards most of the policies of the preceding justice, which are barely beginning to take effect, and a new circle begins. Continuity becomes very untenable in such situations.
Another area requiring more openness or expansion in the appointment process is the number of judicial officers obtainable in the Supreme Court. It is important that the constitution be amended in this regard to accommodate more competent hands. This would naturally translate to the establishment of judicial divisions in the six geo-political zones of the country.
To be sure, we are already witnessing some relaxation of previously rigid codes following the recent move by the NJC to accommodate members of the bar in the appointment of Supreme Court justices. This is a step in the right direction and it is hoped that the current exercise will not be jettisoned like the earlier one embarked upon in 2017, which is still gathering dust on the NJC shelf.
For the avoidance of doubt let this be clear: the argument put forward in this paper by no means deny the need for experience within the judiciary nor suggests that a judge who has garnered much experience be jettisoned for a legal practitioner of less than sterling quality at the time of appointment into higher courts. The point being made here is that as long as the legal practitioner has met the minimum requirement as stipulated by the constitution, is found worthy in knowledge and character, nothing should stop him from being appointed side by side an already serving judge. There is no need to keep adding years of requirement beyond the demands of the constitution.
The time for openness is now. Appointments must be transparent, meritorious and not biased against youth. The Nigerian judiciary should take advantage of the abundant pool of young legal practitioners and bring them to the bench, especially in this era where technology and vibrancy is very key to the smooth dispensation of justice.
