Are non-indigenes ineligible for appointment as Chief Judges?
This poser is prompted by the seeming semi-official policy of some States (notably Kano) not to confirm non-indigenes of the State who are acting as Chief Judges of those States, apparently for the simple reason that they are nonindigenes of those States. In Kano, this trend started when the late Justice Saka Yusuf (an indigene Kwara State) acted as the State Chief Judge for about two years and continued through the tenure of Hon. Justice Patricia Mahmoud, an indigene of Benue State, who was in office for around six months, notwithstanding her marriage to Alh. A.B. Mahmoud, the current President of the Nigerian Bar Association, who is a full-blooded indigene of the State.
She was replaced by Hon. Justice Nura Sagir Umar (an indigene of Bauchi State). The latter has continued in that capacity till date a period of almost thirty months, if I’m not mistaken. However, prior to all this, in 1985, the first female Chief Justice of Nigeria, Hon. Mariam Aloma Mukhtar, then a Judge of the State High Court, was reportedly forced out by discrimination of a different kind on the basis of gender - when she was overlooked for appointment as the State Chief Judge, in preference for a male Judge who was her junior in the hierarchy.
This situation obviously anomalous, as it smacks of institutionalized discrimination, contrary to the spirit and letters of Section 42(1) of the 1999 Constitution, which provides thus:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person (a) Be subjected either expressly or in the practical application of any law in force in Nigeria or any executive or administrative action of the Government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) Be accorded either expressly by or in the practical application of any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin sex, religious or political opinions”.
Additionally, the practice contradicts the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the 1999 Constitution, specifically Sections 14(4) and (15)(2) thereof, which provide, inter alia, respectively, that:-“The composition of the Government of a State and conduct of the affairs of the Government shall be carried out in such manner as to recognize the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation”
(The Judiciary is is one of the three arms of government - along with the Executive and Legislature).
- “National integration shall be actively encouraged whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited”.
By virtue of Section 13 of the Constitution, it is the duty and responsibility of all organs of Government, and all authorities and persons excising legislative, executive or judicial powers to conform to, observe and apply the provisions of this Chapter of the Constitution.
The foregoing scenario is causing some ripples of disquiet among stakeholders in the justice sector, particularly legal practitioners, as it portrays the relevant powers-that-be in the Executive as being unaverse to discrimination, even targeted at the hallowed temple of justice. Needless to say, this pseudo-policy negates the clear criteria for appointment as a Judge or Chief Judge of a State under Section 271(1) of the Constitution, as follows:“(1) The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council, subject to confirmation of the appointment by the House of Assembly of the State.
“(2) The appointment of a person to the office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendations of the National Judicial Council
“(3) A person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practice as legal practitioner in Nigeria, and has been so qualified for a period not less than ten year”
Needless to say, if any government policy, either official or unofficial, or any other statute (such as the High Court Laws of the States) prescribes additional requirements for appointment as a Judge or the Chief Judge of a State, such provisions would be invalid, null and void because the Constitution is supreme (See Section 1 (1) & (3) thereof).
Accordingly, once a person satisfies the constitutional criteria, he or she ought not be passed-over for elevation to the office of the Chief Judge, , simply for the capricious reason of his/her different State of origin. The disappointment and sense of injustice felt by such Judges is better imagined, as that is only natural. Judges are human, after all. Yes, as the High Priests of the Temple of Justice, they are supposedly blind, but surely, not to such patent injustice, of which they, paradoxically, are the victims.
The end-result, conceivably, is the dampening of judicial morale and sense of job satisfaction, worrisome indeed, as such sentiments could impinge on their performance, something that should be avoided at all costs. Accordingly, the situation calls for urgent review, as a Judge’s State of origin is an unconstitutional requirement for his or her appointment, not only as a Judge, but as the substantive Chief Judge of a State.
Sani wrote this piece from Kano