Constitution Amendment: Reasons Behind Judiciary Reform Proposals

By Ahuraka Yusuf Isah

On June 3, 2021, the Chief Justice of Nigeria (CJN), Hon. Justice Ibrahim Tanko Muhammad submitted some proposals to the National Assembly, ostensibly to alter some provisions of the Constitution concerning the Judiciary Arm of Government. The CJN made this submission in the paper he presented as recommendations of the Judiciary on the occasion of the National Public hearing by Senate Committee on review of the 1999 Constitution, held at the Africa Hall of the International Conference Centre, Abuja.

In a 17-page paper titled “Input by the Judiciary to the Proposed Alteration to the 1999 Constitution (as Amended)’’, the CJN’s submission to the Senate Committee contained 45 constitutional amendment proposals on reforms for the Nigerian Judiciary.

Some of the amendments the CJN proposed threw many stakeholders aback, especially on his reasons behind such a radical departure from the norm, and against positions of the Government that be. Let’s take cursory look at some of the proposals once more.

Pegging the Supreme Court Bench at 16

Section 230 states that the Supreme Court of Nigeria shall consist of the Chief Justice of Nigeria; and such number of Justices of the Supreme Court, not exceeding twenty-one.

Section 230 of the Constitution the CJN states, should be altered by ‘’(a) substituting paragraph (a) of the existing subsection (2) with a new paragraph (a); ‘’(a) The Chief Justice of Nigeria who shall be the head of the Judiciary of the Federation’’.

“(b) Substituting the words “not exceeding twenty-one’’ in lines 1 to 2 of paragraph (b) of the existing subsection (2) with words “not exceeding sixteen’’.

The reduction of the Apex Court Bench to 16, is followed by other proposals to reduce the workload of the Supreme Court. For instance, all the appeals to the Apex Court, would be by leave of the Apex Court. This is like creating toll gate to sieve appeals that can be heard by the Apex Court, invariably reducing several spurious appeals usually sponsored by Lawyers seeking to be elevated to the rank of Senior Advocate of Nigeria, and must appear before the Apex Court.

Again, three Justices of the Supreme Court sitting in the chamber, the CJN said could dispose the application for leave of the court. Besides, a single Justice of the Supreme Court sitting in chambers, could exercise power vested in the Apex Court in some instances. In addition, all the appeals from the Court of Appeal to the Supreme Court, should be by leave of the Supreme Court. No appeal shall lie to the Court of Appeal (and by extension to the Supreme Court) from any decision of an election tribunal, in respect of an interlocutory decision. By this insertions, the proposal for the reduction of the Apex Court Bench, is to larger extent justifiable.

Moreover, several stakeholders have viewed an attempt to appoint more Justices, possibly to make up the Supreme Court Bench to 21, as a drive to turn the Apex Court to Magistrates Court. Whereas, all that the Apex Court requires, is to streamline avalanche of appeals lying before it.

Besides, President Buhari neither increased the N110 billion budget allocation to the Judiciary for 2021 fiscal year, nor provided additional fund to the Supreme Court when he appointed eight justices to the Supreme Court.

However, if the CJN is named as the head of the Judiciary of the Federation in the Constitution, the Judiciary would perhaps assume its rightful position in the order of protocol in the nation. Many legal persons are irked with the CJN being called as the 5th person instead of the 3rd in the Order of the National Protocol. When the Constitution recognises him as the head of the Judiciary, he’s then the head of the Third Arm of the Government, with the President as the 1st, Senate President as 2nd and CJN the 3rd.

Fixing and Periodic Review of Judges’ Salaries

The CJN also asked the National Assembly to alter the Constitution, with the effect that the National Judicial Council (NJC) would fix and review Judges’ salaries every four years.

In item 38 of his submission, the CJN requested Part 1 of the Third Schedule Paragraph 21 to the Constitution be altered to include sub-paragraph ‘h’, to the effect that the NJC should ‘’fix, in conjunction with the Salaries and Wages Commission, Salaries and other emoluments of Judicial Staff; in the case of Judicial Officers, to review such salaries no later than four years from the last exercise’’.

By the dictates of Section 84 (1), the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) reviewed Judges’ salaries alongside some other public officers through the enactment of, ’’Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) (Amendment) Act, 2008’’ which came into force on February 1, 2007. Since this Act has not been reviewed since 2008, Judges’ salaries have remained the same for about 13 years, with attendant implications. The CJN who now wants to take the bull by the horn; he wants the lawmakers to separate the duty of fixing and reviewing of salaries of both Judges and Staffers in the Judiciary and be done by NJC, following the Salaries and Wages Commission laid down guidelines.

Of course, this is a far reaching instrument, for the Judiciary to take control of its affairs both at the Federal and State levels. Perhaps, this is why he called for the alteration of Section 84 of the Constitution, by deleting the words ‘’other than allowances’’ in line 2 of subsection (3). Ostensibly to protect Judges and the Judiciary Staff, the allowances cannot be altered downwards, once set.

Other Far Reaching Proposals

‘’A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in ,Nigeria and has been so qualified for a period of not less than fifteen years’’.

Also, he called for the number of the Court of Appeal Justices the Constitution pegs at 49 under Section 237, to be amended such that they are not less than 100 Justices.

The NJC should collect, control and disburse all monies, capital and recurrent for the Judiciary.

The CJN said the Constitution should be amended, for the NJC Secretary seat to be at par with that of the Clerk of the National Assembly.

The Judiciary is now to exercise control over the Code of Conduct Tribunal, as the Federal Judicial Service Commission is to advice the NJC in nominating persons for appointment as the Chairman and members of the CCT. This is necessary since the CCT is of coordinate jurisdiction with the High Court. Appeals against its decision, should also lie to the Court of Appeal.

Ahuraka Yusuf Isah, Senior Special Assistant on Media to the Chief Justice of Nigeria