From independence 1960, the judiciary has been at the forefront of promoting, sustaining and strengthening democratic norms in Nigeria. Not even the military interregnum deterred or weakened the judiciary from performing her constitutional roles towards the overall development of Nigeria state. Infact, it has been widely argued, that the golden era of the judiciary was during the military.
Among the three arms of government, the judiciary remains the most enduring branch, even when the other arms suffer any form of dissolution, dissipation or truncation.
All over the world, the judiciary remains the last bastion, irrepressible and indispensable arm of government. Non democratic nations, such as Afghanistan, Iran, Cuba, China, North Korea etc maintains judiciary system that suits their peculiar circumstances.
According to the 1999 Constitution of Federal Republic of Nigeria, Section 6 provides “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution..” Going further the judiciary has the primary duties of interpreting the laws and also make laws through the decisions of the courts. As legal scholars, lawyers and judges usually say, “the law is what the court says it is.”
The Constitution also provides for the different hierarchies of courts, the appointment of judges, procedures for the appointments and the bodies charged with such responsibilities (federal and state).
Having laid the foundations, we will focus primarily on the appointment of judges to the higher bench, which are the Court of Appeal and the Supreme Court. In doing this however, we will restrict ourselves to recent developments to reflect the present realities.
Shortly before Muhammad Buhari vacated office in May 2023, news broke out that there were arrangements to appoint new judges to not only beef up the number of Justices of the Supreme Court, but also to make up for the shortfall occasioned by the retirement of some judges, but as preparatory for the ones that will retire in the nearest future.
The current Chief Judge of the Nigeria CJN, Justice Ariwoola at a public forum lamented about the apex court being evidently overstressed due to increasing workload and the depletion of workforce, adding that the exercise was long overdue. As at the time, he made the statement, the number of Justices of the court were 13, but at the sudden death of Justice Chima Centus Nweze JSC, and the expected retirement of Justice Amina Augie on September 3rd, 2023, the number would have reduced further. Just last week, the CJN Ariwoola in another statement released names of some Judges to be appointed into the Court of Appeal.
As much needed as these appointments are, the core issue which is of paramount importance remains the calibre of persons to be appointed into these highly sensitive courts; knowing too full well that those courts are not just courts of law, but of policy. The question is, beyond being recommended for appointments, what other parameters are to be considered to ensure that the best hands occupy the top echelon of our court system.
It is pertinent to note that, there has a persistent, mounting clamour by stakeholders that the composition of the two topmost courts should be allowed to enjoy sound legal minds from private practice and academia in order to improve the quality of judgements from the courts which pundits believes has gone down.
Many lawyers and some members of the public believes that merit rather than federal character should be considered above anything else. The principle of meritocracy should not be compromised whatsoever. Section 231(3) of the Constitution makes room for suitably qualified legal practioners to be appointed to the Supreme Court. In my view this will be best way to go.
Lending his voice on the issue, an Abuja based lawyer and activist, Ukomah Maxwell, citing his observation from other countries said “..Most of them have worked previously as prosecutors, defence lawyers, attorneys in private practice, lecturers. Most of them have diverse background. ” Going further, he contrasted them with Nigeria’s legal system where what we have mostly are career judges, having risen from Magistrate, High Court, Appeal Court to possibly the Supreme Court. According to him, their experiences and views are usually very limited. Their view of jurisprudence is that of rigid technicality.
In advance climes, judges do attain the ranks equivalent to our Senior Advocate of Nigeria SAN. In United Kingdom for instance some judges are Queen’s Counsel QC (now KC).
In Nigeria’s legal history, it was only Justices Teslim Elias and Augustine Nnamani SAN who have been appointed from the bar to the appellate court bench. As Nigeria marches on in her quest to build a great, virile nation where democracy and rule of law thrives, there is the need to appoint the very best, people with practical experiences and pedigree to the two topmost courts in land.