By Lillian Okenwa
The Punch newspaper in its editorial of 30th October 2023 held that: “Abuse of judicial powers has significant negative implications for the rule of law and the integrity of the legal system.”
It went further to say that: “Necessary reforms should therefore be implemented to reposition the judiciary and restore public confidence in Nigeria’s legal institutions. The reputation of Nigeria’s judiciary is at its lowest.”
In February this year, the National Judicial Council (NJC) and other entities responsible for the appointment of judicial officers came under scrutiny owing to the allegations of a retired judge of the High Court of Kogi State, Justice Alaba Omolaye Ajileye that the appointment process is fraught with undue influence and lacks transparency.
Days ago the transparency question in the appointment of judges arose again with Senior Advocate of Nigeria, Mrs. Funke Adekoya asking why appointment of judges is not as publicised at that of Senior Advocates.
Posing the question via her X handle, Adekoya, SAN asked: “If elevation to SAN rank requires publication in the newspapers and comments on unfavourable candidates are requested, why is the appointment of judges who will be paid from public funds shielded from the public that they are expected to serve?”
A mischievous X user in response said: “Imagine a Newspaper publication by NJC preceding the appointment/elevation of judges and the list is made up of wives, sons, daughters, nieces and nephews of the CJN. That would be awkward. It is Best such unethical matters are kept away from the glare of the public.”
But this intervention underscores the position of Law Teacher and ex-Chair of the National Human Rights Commission, Chidi Odinkalu, in his article A Captured Temple of Justice.
“The judicial managers of the appointment process skew it deliberately to ensure pre-determined outcomes. This will not be the case if their children, spouses and mistresses (with whom they choose to fill many judicial vacancies) were that competitive. In 2020, for instance, the NJC advertised 15 vacancies for the FCT High Court but nominated 34 persons for appointment, with all of the non-advertised nominations going to the children or relatives of judicial insiders. It seemed clear that they were deliberately parsimonious with disclosure of all the vacancies, in order to be able to share those in an exclusive bazaar among judicial insiders…
“Most importantly, this practice of insider dealing in judicial appointments violates the United Nations Basic Principles on the Independence of the Judiciary as well as Judicial Code of Conduct established by the NJC itself. As a rule under the Basic Principles, “any method of judicial selection shall safeguard against judicial appointments for improper motives.” That is what happens when the best qualification of a nominee for judicial office is who they are related to or whom they sleep with…”
Months back, Justice Ajileye, during his valedictory court session maintained that the process of appointing judicial officers in Nigeria is shrouded in secrecy and clandestineness. Pointing out what he called “evils associated with appointments”, Ajileye said: “Another evil is that recommendations of Honourable Judges and Honourable Justices don’t count. The act of calling for recommendations looks to me like a ritual, exercised merely to fulfil all righteousness. Those who would be appointed would still be appointed with or without recommendations.
“The number of recommendations a candidate receives guarantees nothing for him. The third evil I have seen is that the person a candidate knows matters a lot. And that person must carry a lot of ‘weight.’
”The fourth evil is that the place where you come from also counts. In Nigerian parlance, it is called the federal character or quota system. There is nothing evil on the face of the principle of federal character. What is evil in it is the way the principle is applied by the functionaries of government. This underscores the point that it is the human being that makes or mars an institution.”
He recalled that the Nigerian judiciary at the apogee of its glory withstood military tyranny, stressing that today’s Judiciary has succumbed to the corrupting influences of moneybag politicians.
Ajileye said: ”It was a healthy judicial system in the days of yore, with a reputation for integrity and competence. This was mainly attributable to a fair system of appointment of judges in the superior judiciary wherein appointments were generally made on merit alone. The puzzling question here is, at what point did we get it wrong?”
While admonishing judges to free themselves from every form of influence except law, Ajileye said judges must liberate themselves from self-imposed shackles and fetters that inhibit independence.
“They can do this if they exhibit, at all times, requisite judicial character. The qualities of courage, firmness, integrity, uprightness, patience, open-mindedness, understanding of the law, compassion, humility, and courtesy should be inseparable from the personality” he added.
Similarly, the United Nations Office on Drugs and Crime (UNODC) in its 2023 Working Paper titled: Selection and Appointment of Judges in Nigeria, Analysis and Recommendations, observed a lot of inconsistencies in Nigeria’s judicial appointments. Below are its recommendations.
General recommendations on the selection and appointment of judges in Nigeria:
i. Courts should reflect the societal diversity with regard to professional background, gender, youth and
people with disabilities. As far as practicable, appointments should be aimed at achieving gender balance in the courts for which the vacancy was announced.
ii. Requirements for ethnic diversity should be respected in line with the “federal character” provisions of the Constitution, although not at the expense of merit. Where the processes are objectively applied, excellent candidates can be attracted from all parts of the country in a manner that is merit-based and transparent.
iii. Specific slots should be reserved for outstanding and well qualified members of the private Bar and
academia in order to progressively improve the diversity of the professional, ideological and philosophical backgrounds of both the Supreme Court and the Court of Appeal justices. The appointment of serving judges from across all courts should also be promoted.
iv. Safeguards should be put in place to ensure that NJC undertakes its constitutional role without undue
pressure from any quarter.
v. Consider creating a professionalized cadre of court administrators .
vi. Consider regulating the process of selection and appointment of judges by an act of the National
Assembly.
vii. Consider introducing regular compliance audits to ensure adherence to rules and procedures for the
selection and appointment of judges.
The time has come for those in whose powers the affairs of Nigeria’s judiciary lie to do the needful.
