Chief Justice Walter Onnoghen is complaining about politicians’interference in judges’appointment. The practice, he said, undermines the power of the National Judicial Council (NJC). ROBERT EGBE examines some of the cases that led to his complaint.Justice Onnoghen and Justice Elelu-Habeeb (Retd)The National Judicial Council (NJC) is often at loggerheads with governors over who to appoint Chief Judges of their states.Despite the provisions of the 1999 Constitution and judicial precedents, politicians often insist on filling the exalted post with those they prefer.Political interference in judicial matters was one of the issues that Chief Justice Walter Onnoghen addressed last Monday at the first Biennial Lecture of the Lagos State Judiciary, which held at the City Hall on Lagos Island.

Justice Onnoghen observed that the system of judges’ appointment is such that governors sometimes prevent  nominees’names from being sent to the NJC for scrutiny, if the names of the governor’s candidates are not included on the list.Speaking on “Judicial standards, integrity, respect and public perception: A comparative analysis from independence in 1960 to the present millennium” Justice Onnoghen, who was represented by Justice Bode Rhodes-Vivour of the Supreme Court, also decried the falling standard at the Bar.The CJN said: “Appointment of judges have become highly politicised as a governor of a state will not approve the names of persons nominated for the bench for the NJC’s scrutiny if the names of his candidates are not included on that list.“Our system of making appointment to the judiciary, which we inherited from Britain, is such that the whole of the judiciary is dependent upon the practising lawyers for its personnel. For this reason, it is suggested that our system of training lawyers for the Bar should be reviewed.“We cannot build a strong judiciary from a weak Bar. A situation where our current Law undergraduates cannot take notes nor write exams with a good command of English language is regrettable.“It is, therefore, suggested that Law is made a second-degree course. This will help to reduce the current influx of young people into the faculties of Law across the country and in turn help to produce more mature minds who truly desire to be lawyers.

“In addition, it is suggested that lawyers desirous of appointment to the bench should, in addition to the 10 years post-call (experience) requirement, have a post-graduate degree in Law.“All these are in aid of sharpening the intellect and widening the educational horizon of lawyers and of course the future judges.”Cases of political interferenceAssaults on the integrity and independence of the judiciary by the executive arm of government, at times in collusion with the legislature, are not new.Several cases of political influence of judges’ appointment have been recorded in Adamawa, Rivers, Kwara, Abia, among others.AdamawaOn December 23, 2013, the Adamawa State House of Assembly rejected Justice Ishaya Banu, who was nominated by the National Judicial Council (NJC) for appointment as Chief Judge on the grounds of low performance and ill-health.Both the legislators and Governor Murtala Nyako insisted on making the Acting Chief Judge, Justice Nathan Musa, a substantive Chief Judge  because  he was “a better hand in view of his efforts to transform the judiciary” in the state.The problem was that Justice Musa was third in rank in Adamawa’s judiciary. He was called to the Bar in 1983 and appointed High Court Judge in 2003. He was 10 years behind Justice Banu, who was called to the Bar in 1979 and appointed a High Court Judge in 1993.Justice Musa was also a junior to Justice Bobboi Umar, who was the second most senior judge in the state. Justice Umar was called to the Bar in 1980 and appointed High Court Judge in 2003.The former governor appointed Musa as the state’s fourth Acting Chief Judge since July 2011 when the Chief Judge, Justice Bemare Bansi, retired.A few months earlier in October 2012, Nyako sent the name of his wife, Justice Binta Murtala Nyako of the Federal High Court, to the NJC as his nominee for state Chief Judge which the council rejected. Besides, Justice Nyako was junior in rank to several judges of the Adamawa State High Court.Adamawa remained without a Chief Judge till October 2014, when Banu was sworn in by Nyako’s successor, Governor Bala Ngilari.Abia (1)High and Magistrates’ Courts in Umuahia, Abia State, were shut down  last January 25, following a tussle between the Executive and Judiciary over which of the two arms control the courts in the state.The House of Assembly, in conjunction with Governor Okezie Ikpeazu, suspended the Chief Judge, Theresa Uzokwe, for alleged misconduct and high-handedness.Ikpeazu, acting on a resolution of the House, appointed another judge, Obisike Orji, in an acting capacity. His action compelled the NJC to suspend Orji and mandated Ikpeazu to swear in the most senior judge in the state.On February 5, Ikpeazu complied and swore in a new judge, Onuoha Ogwe, in an acting capacity.Abia (2)Following the retirement of Justice Sunday Imo in December 2010 as the Chief Judge of Abia State Governor Theodore Orji refused to appoint a replacement contrary to the Section 271(4) of the 1999 Constitution which recommends that no judge may be in acting Chief Judge capacity for more than three months unless with NJC’s approval.Orji appointed at least five judges in acting Chief Judge capacity, including the late Justice Ijeoma Offonry, Justice Nnenna Oti, Justice Uzoukwu, Justice Shedrack Nwanosike and Justice Stella Nwakanma.This was the position until April 3, 2014 when the Abia State House of Assembly screened and confirmed Justice Nnenna Chioma Oti as the Chief Judge.KwaraIn 2012, the Kwara State Government wrote to the state assembly, seeking the removal of the then CJ, Raliat Elelu-Habeeb, on alleged corruption and other acts of misconduct. The legislators purportedly found her guilty and she was removed. But the Supreme Court voided her dismissal.RiversWhen Justice Iche Ndu retired on August 19, 2013 as the Rivers State Chief Judge, Governor Rotimi Amaechi appointed the President, Rivers State Customary Court of Appeal, Justice P. C. N. Agumagu as the state’s Acting Chief Judge.This was contrary to the NJC’s nomination of Justice Daisy Okocha for the position.Amaechi insisted that Agumagu, who was the oldest judge in the judiciary,  though not a state High Court judge, was the most qualified to be appointed as Acting Chief Judge irrespective of Section 271 (4) of 1999 Constitution, which states that only the most senior High Court judge may be so appointed.However, the matter was settled by the Court of Appeal which upheld NJC’s exclusive power over judges’ appointment.Appointment of judges:what the law saysThe role of governors, the NJC and the House of Assembly in the appointment of judicial officers is clearly defined in Section 271 of the 1999 Constitution: the NJC recommends, the governor approves, the House of Assembly confirms.

1. 271(1) The appointment of a person to the office of Chief Judge shall be made by the Governor on the recommendation of the NJC subject to confirmation of the appointment by the House of Assembly of the state.

(2) The appointment of a person to the office of a Judge of a High Court shall be made by the governor acting on the recommendation of the NJC.(3) A person shall not be qualified to hold office of a Judge of a High Court unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.(4) If the office of CJ is vacant or if the person holding the office is for any person unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the governor of the state shall appoint the most senior Judge of the High Court to perform those functions.(5) Except on the recommendation of the NJC an appointment pursuant to subsection (4) of this section shall cease to have effect after expiration of three months from the date of such appointment and the governor shall not re-appoint a person whose appointment has lapsed.How to remove a judgeSections 292(1)(a)(ii) stipulates how a CJ or a Judge of the High Court may be lawfully removed from office.Sections 292(1): A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –(a) in the case of –(ii) CJ, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the state, Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.Prof. Itse Sagay (SAN) explained how it works.Sagay said: “Before you can remove a Judge, a petition must be written against the Judge to the National Judicial Council (NJC) and they will determine to hear it. It is after they have heard it; they can decide to clear him or suspend him and recommend to the governor to remove him. Unless NJC recommends to the governor to remove the Chief Judge, the governor cannot act. The House of Assembly has nothing to do with it. It is the NJC that will first recommend her removal. This will create disillusionment in the minds of ordinary Nigerians.Strengthening security of tenureLagos lawyer Oladotun Gbolagunte argued that the law  does not adequately protect judges’ tenure.Gbolagunte said the processes for removing judges are “basically left in the hands of the Executive and Legislature. In fact, this situation cannot guarantee independence and impartiality of the judiciary’’.“A noticeable inadequacy of these processes is that the appointing or removal power may be used to ensure that only persons loyal or constructively inclined towards the government are appointed while judges considered on the warpath to the government’s policies or interest are removed.“This was made obvious in Ekiti State, when the Speaker of the House of Assembly ostensibly ordered the Chief Judge to dissolve the panel constituted by him because it was purportedly filled with people of questionable character. The Chief Judge refused and went ahead to inaugurate the panel. The members of the state House of Assembly ordered his suspension  with immediate effect and directed him to vacate his office because of their reservation about the panel. They also appointed an acting Chief Judge for the State and directed him to inaugurate another panel in clear violation of Sections 271 and 292 of the constitution. These sections make it evident in crystal clear language that the state House of Assembly is not conferred with the power to appoint or remove a judicial officer.“The position of the law is rightly in line with the Central Council of the International Association of Judges where it stated that a judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.“It is, therefore, palpable that the Nigerian Judges need a more secure tenure because under the current arrangement, to remove a judicial officer, all that the President or Governor needs is an address supported by two-thirds majority of the Senate or state House of Assembly (as the case may be) praying that he be so removed for his failure to discharge the functions of his office, or for misconduct or contravention of the Code of Conduct.”Protecting judicial powerThe British Institute of International and Comparative Law recommends that to protect the judiciary from abuse and intimidation, the appointment and removal of judges should not be left solely in the hands of the executive and legislature, but should involve a judicial commission.In Britain, both Houses of Parliament have to petition the Queen to remove a judge. However, no English High Court or Court of Appeal judge has ever been removed from office under the 1701 Act of Settlement.Credit: The Nation