This article by Ahuraka Isah is a Rejoinder to that of Yemi Gbolade of last week titled ‘Appointment of Court of Appeal Justices: FJSC’s List Versus PCA’s Lists’. For some time, there have been some complaints against the ongoing exercise of appointing Justices to fill the 20 vacant positions on the Court of Appeal Bench. He attempts to debunk the allegations made in Yemi Gbolade’s article, by explaining the process laid down by the 2014 NJC Guidelines on the appointment of Judicial Officers, which is followed in such an exercise as this. He however, fails to address the allegation that there is no Christian nominee from the Northern zones, on the list
Complaints Against Appointment of Court of Appeal Justices
While some complained that the appointments offend Section 14(3) of the 1999 Constitution (as amended) on the ground that Federal Character Principle was not observed because the appointment was based on ‘’ethnic, religious and primordial reasons’’, other writers said the list compiled by President of the Court of Appeal was jettisoned in favour of the one later compiled by the Federal Judicial Service Commission (FJSC) with the handwriting of the politicians. The FJSC’s list, the critic said, was prepared under the guise of the principle of Federal Character and geographical spread, saying under the NJC Guidelines for Appointment of Judges, Federal Character is the least factor for consideration for appointment of judicial officers. Besides, the writers who double as Lawyers held that the names of candidates from the North, consist of only Muslim Judges. ‘’No single Christian Judge, featured in the list’’. They further alleged that none of the Lawyers that applied was considered or appointed, saying ‘’only members of the Bench were nominated for appointment to the Court of Appeal, to the exclusion of the Bar and Academia’’.
It is not healthy in an argument to approbate and reprobate or approve and disapprove, for on one hand saying the appointments were not spread, and in another saying they were tilted in favour of federal character principle rather than merit. At the risk of sounding immodest, the petitions or allegations were either borne out of mischief or ignorance of procedural rules for the appointment of judicial officers, as there were more syllables than proof of evidence.
What stands the Judiciary out amongst the three arms of Government, is the iron-cast practice with relevant rules and standards of conduct, for all its activities or undertakings. From appointment to promotion, disciplining, to retirement or resignation of the judicial officers, there are procedural rules and regulations governing them.
Procedural Rules for Appointment of Judicial Officers
The need for a change in the criteria for the appointment of Judicial Officers in Nigeria, prompted Judiciary leadership to come up with the new Revised National Judicial Council (NJC) Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria in 2014.
It was clear then that the old Guidelines and Rules had become unworkable, as it saw anachronisms such as the limitation that saw only Justices of the Court of Appeal, as of right, making it to the Supreme Court of Nigeria. Under the new, more rigorous and transparent rules, any qualified legal practitioner with the requisite intellect has the opportunity of making it to any Court in the land, and even to the posts of Heads of Federal and States Superior Courts, including the Chief Justice of Nigeria.
The ‘’Revised 2014 NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria’’, dictate the steps required to follow, for instance, from the point of nomination to the point of appointment of the nominees which must be followed. It would be discerned from below that, there can never come a condition to warrant the President of the Court of Appeal (PCA) list and the Federal Judicial Service Commission (FJSC) list, because one must give rise to the other. The FJSC list, is always derived from the list produced by the PCA.
Rule 1 states that: ‘’the Federal Judicial Service Commission (FJSC), State Judicial Service Commission, Judicial Service Committee of the FCT shall comply with these Rules in their advice to NJC for nominations or recommendations of candidates for appointment of Judicial Officers for the Superior Courts of Record under the 1999 Constitution (as amended).
Rule 2(2)(a) states: ‘’whenever the Head of a Federal Court proposes to embark on the process for appointment of candidates or candidate to the office of judicial officer of a federal court of which he/she is the head, notice shall be given to the Chief Justice/Chairman of the FJSC stating the number of Judicial officers intended to be proposed for appointment’’.
Rule 2(4) says that: ‘’the Secretary shall upon receipt of the notice, advice the Chief Justice/Chairman of the NJC in regard to the number of judicial officers that can be appointed pursuant to the notice, having regard to relevant budgetary provision in the budget of the council for the year…’’.
The PCA certainly notified the CJN in writing, declaring 20 vacancies on the Court of Appeal Bench, and in compliance with the Rule 2(4), the agreed number of judicial officers to be appointed are made public. The PCA writes to Chief Judges of 36 States and that of the FCT High Court, Chief Judges of the Federal High Court, Minister of Justice and the President of Nigerian Bar Association calling for nominations.
Rule 3 (a) states: ‘’Upon receipt by the Judicial Service Commission/Committee concerned of the decision of the Chief Justice/Chairman of the National Judicial Council rendered pursuant to Rule 2(4) advising that the exercise be proceeded with, the relevant Judicial Service Commission/Committee shall: call expression of interest by suitable candidates by way of public notice placed on the website of the Judicial Service Commission/Committee concerned, notice Boards of the Courts and notice Boards of Nigerian Bar Association Branches; write to every other head of Superior Courts of Record in Nigeria, and to every Judicial officer of the Court concerned asking for nomination of suitable candidates for the proposed judicial appointment; write, in the case of appointment to a Federal Court, to the President, Nigerian Bar Association…’’.
Rule 3(b): ‘’In the case of appointment of Judicial Officers for Court of Appeal and Supreme Court of Nigeria, the President of the Court of Appeal/Chief Justice of Nigeria shall, as the case may be, write to Heads of Courts, serving Justices of Court of Appeal/Supreme Court of Nigeria and President of the Nigerian Bar Association asking for nomination of suitable Judicial Officers/Legal Practitioners for appointment as Justice of Court of Appeal/Supreme Court of Nigeria”.
Rule 3 (2) states: ‘’Any person nominating a candidate must do so in writing and indicate clearly and in detail, that he/she has sufficient personal and professional knowledge of the candidate’s requisite attributes for a reasonable period of time as would make him competent to make the nomination. He/she shall expressly certify that from his/her personal knowledge of the candidate, the candidate possesses the qualities set out in Rule 4 (4)(i)(a)-(b) of these Rules; and, where applicable the qualities set out in Rule 4(4)(i)(d) and/or (e)”.
All the nominations or recommendations for the appointment of the Court of Appeal Justices are forwarded to the President of the Court of Appeal, who in turn, constitutes a Committee and screens these preliminary nominees based on laid down criteria at that level. With the 20 vacant seats to fill, the PCA would produce a list of 80 nominees which would be forwarded to the FJSC.
The FJSC is made up of the CJN, PCA, AGF, amongst others. The Commission would further screen the list based on laid down procedure and criteria, and come up with 40 nominees made up of 20 on priority list and 20 on reserve list. The FJSC would consequently forward its priority and reserve lists to the NJC, who then interview them and come up with 20 for appointment.
Rule 6 (1) however states that: ‘’every candidate/judge/justice/chief judge/legal practitioner, who has been shortlisted shall undergo interview to be conducted by the National Judicial Council to ascertain his or her suitability for judicial office sought’’.
At this juncture, the success of the candidate depends on his or her performance, and other factors during the interview. Experience has shown that several nominees on the reserve list perform better than those on priority list, and consequently, are appointed instead.
Appointment of Lawyers to Appellate Courts
Rule 3(6) of the Guidelines encourages competition between Bar and the Bench for the judicial officer’s appointment to vacant judicial offices, and that that be determined among other requirements of the number of judgements delivered and number of cases contested at the Bar. The provision states unequivocally thus, “and in the case of appointment from the Bar, evidence of 6 contested cases in the last 5 years; (ii) sound knowledge of law, (iii) seniority at the Bar and or the Bench, (iv) Federal Character or geographical spread and where necessary and possible, without compromising the independence of the judiciary or allowing politics to permeate or influence the appointment”.
Although, the main purpose of the new guidelines was to stop Judges relying on mere seniority in the system for promotion onto higher Bench, but experience has shown that no matter how lazy a Judge is, it would be difficult for a Lawyer to compare the number of cases he/she contested with the number of judgements delivered by a Judge at a given period of time. Of course, an average judicial officer can boast of ten times the number of judgements submitted by a highly rated Senior Advocate.
Geographical Spread of Judicial Appointment
Appointment of the Supreme Court Justices is done in such a way that it reflects the federal character principle, to the extent that at least three and at most four out of the current 21 Justices come from each geo-political zone of the country. The appointments of Justices to other Federal Courts, including the Court of Appeal, follow this pattern of spread to assuage religious or ethnic nationalities in Nigeria.
Ahuraka Yusuf Isah, Senior Special Adviser to the Chief Justice of Nigeria on Media, Abuja