Where lies judicial independence

An independent, impartial and informed judiciary holds a central place in the establishment of a good, transparent and accountable government.

As important as the judiciary is to the sustenance of the rule of law and democracy; it is the most vulnerable of the three arms of government. This is well against the key indices which are to ensure and facilitate independence of the judiciary. They are: Appointment, Remuneration, Tenure of Office, Removal and Protection of Judges. Judicial independence can be defined as the total freedom of the judicial arm from the other two arms (Executive and Legislature) of government. The purpose of this is to ensure the entrenchment of democracy.

In the last two weeks there has been a lot of debate among lawyers about the first Chief Justice of Nigeria of southern extraction whose three-month acting capacity might not be renewed with the rumour that an ‘outsider’ would be appointed as CJN.

It is unfair, of course, for a “rookie” of 15 years post-call experience to be appointed straight to the office of CJN over and above seasoned justices who had risen through the career ladder to be Justices of the Supreme Court. The title ‘chief’ presupposes long service and seniority. We have Chief Judges, Chief Registrars, Chief Magistrates, Chief State counsel, even chief drivers. The title chief signifies head which cannot be given to a new intake, synonymous to calling a new addition to a family the head of the family.

A close and anxious perusal of the relevant constitutional provisions reveals a gap between the law and tradition. Ss.230, 237, 249, 254, 255,270 of 1999 constitution provides for creation of a Supreme Court, Court of Appeal, Federal High Court, National Industrial Court and High Court of FCT, Abuja and State and the office of the Chief Justice of Nigeria, President Court of Appeal, Chief Judge FHC, President NICN and Chief Judge of the FCT and a State.

S.231 1999 CFRN details the appointment process, which is similar to appointments into the offices of the other Heads of Courts. The appointment to the office of The Chief Justice of Nigeria shall:
Be made by the President on recommendation of NJC subject to confirmation by the senate;
A person shall not be qualified to hold office of CJN or Justice of the Supreme Court unless he is qualified as a legal practitioner for not less than 15years.

If the office becomes vacant…… (Pre-supposes that after the appointment as in sub 1 &2 above)……… the President shall appoint the most senior Justice of the Supreme Court to perform those functions.

This same qualification goes for the office of President Court of Appeal and other heads of Courts. It appears the judicial history/tradition of appointing the most senior Judge as head of Court contradicts the letters of the Constitution, even though the process can be said to be fair and acceptable to the stakeholders. A careful perusal of the letters of the supreme constitution seems to suggest that the President or State Governors are obliged to appoint the most senior Judge as CJN, P.J Court of Appeal, Chief Judge FHC or States ONLY in the event the office becomes vacant or the incumbent is unable to perform the duties of office, in which case the most senior Judge so appointed can only act for a non-renewable 3 month’s term. Subsection 3 seems to refer to a situation where the vacancy is unforeseen and sudden maybe due to death and ill-health and not when an incumbent retires meritoriously.

By virtue of the ‘2014 Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria’, the Federal Judicial Service Commission (FJSC) shall request for applications to fill vacant judicial officers positions including that of the CJN.

S.1 1999 CFRN states that the Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria……. If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail…’

How on earth did this faux pas escape constitutional review and the NJC’S scrutiny? The NJC has through various medium advised the President to implement its recommendation of making the interim CJN substantive because the President is only to ceremoniously accept their recommendation and pass it on the Senate for ratification, NJC did not take into consideration what next if Senate rejected that nomination.

If the correct interpretation of the constitution is that the President can appoint any person to head Federal Courts, it appears, as the appointing agent, it is the office of the President or Attorney General of the Federation that can call for nominations to fill the offices of all heads of court from the offices of CJN, PJ Court of Appeal, Chief Judge FHC just as State governors should call for nominations to the office of Chief Judge of the State. It appears the most senior Judge/Justice can also apply or be recommended, there is no automatic pass. It appears after nominations are reviewed these nominations are forwarded to NJC for consideration, examinations, scrutiny and the best candidate chosen and forwarded back to the President for senate ratification and final appointment.

The problem is this:
The law as it is does not provide security of tenure to judges. Especially as regards the age-long tradition of seniority to ascend headship of courts.

The law as it is makes the appointment of heads of courts an all-comers affair.
There is no job security for judges on the lower bench, e.g. Magistrates who are not constitutionally regarded as judicial officers but are expected to observe judicial code of conduct. Security of tenure of judicial officers should begin from the lower/bottom rung.

There is a need for reform along these lines:
1. Urgent and Immediate constitutional review of the appointment of all heads of courts, to ensure judicial independence.
2. Review of criteria of appointment of all Judges of superior court of record. It seems unfair that any lawyer of 15years post call experience can become not only a Justice of the Supreme Court but the CJN, the same feeling of injustice all Nigerian Chief Magistrates feel when bypassed for law officers during judicial appointments. These are people with more experience at being better judges.

Ajala is a legal commentator.