PCA: A learned mistake

Speculation is rife in the air that the principle of seniority guiding the succession to the presidency of the Court of Appeal may be on its way out. The Federal Judicial Service Commission is said to have recommended the names of the three most senior justices to the National Judicial Council for appointment as substantive President of the Court of Appeal; and this recommendation is said to favour the incumbent even though she is not the most senior justice in the court. Though this has been denied, there are indications that it is the fact, and should this fail, an attempt will be made to bring in another female justice from the Supreme Court to head the Court of Appeal.

This tradition of following seniority in the succession to the presidency of the Court of Appeal has been maintained from 1976 when the court was first established with Justice Dan Ibekwe as president, up to the appointment of Justice Isa Ayo Salami in 2009. Since its establishment Justices Ibekwe, Mamman Nasir, Mustapha Akanbi, Umaru Abdullahi and Salami had been presidents of the court. And it has never been breached. But what is baffling is that the Chief Justice, a past victim of seniority breach and someone who has been on record standing her ground and rejecting attempts by the governors of Rivers, Adamawa, Kwara and Osun states to violate the seniority convention and impose their candidates above more senior justices, will now fail to do in the Court of Appeal what preached to the states. What is even more baffling is that Justice Miriam AlomaMukhtar became the Chief Justice of Nigeria solely on account of seniority, not because she is the best justice on the Bench.

Obviously, the Chief Justice will need a justification more objective than her own whim and a criterion more edifying than gender bias to bypass the most senior officerin-waiting and appoint a relatively junior, recycled Supreme Court justice, especially, if she decides to shun not only him but also the next four most senior officers in the hierarchy ranking so that she ends up choosing an officer recommended not by seniority or by extenuating competence, but simply because she shares the same sex with her. We certainly want our women to be encouraged to strive for greater glory and intellectual and professional equality in all spheres; but while the nation shares the concern and enthusiasm of the leadership of the judiciary for gender progress, we don’t think that this must be at the expense of the law or any accepted conventions: our womenfolk must learn to compete according to the rules, and they must learn to accept the virtue of waiting for their turn. Otherwise if bars are lowered, law will no longer be a learned profession.

Indeed, the whole learnedness of the law owes as much or, in fact, everything, to tradition as it does to the body of legal learning—in the same way that medicine and theology, the other two learned professions, depend almost entirely on it. It is the duty of the Bench to uphold tradition: because, without tradition, there is no law; and without law, there will be no Bench, and without the Bench, there will be no Bar. If, as has been said, judges nowadays get intoxicated at the Bar before coming to sit on the Bench, [but, then, what is a bar for?]; while those who manage to reach and sit on it without having lot sobriety, soon enough turn their new seat into their own intoxicant. As we all know, the judiciary is not particularly noted as a teetotal zone; it is an institution in which, off-Bench, temperance is often in short supply—and even in ours, the teetotallers are perhaps a minority; and, in view of what is happening, the Supreme Court shouldn’t allow itself to become inebriated by the exuberance of a gender superiority complex.

Justice Miriam Aloma-Mukhtar is the first female Chief Justice of Nigeria; and she shouldn’t allow herself to become the first to throw away a golden opportunity to recreate the nation’s judiciary anew. In the light of sordid revelations of the compromise of justice, the sorry and heartrending fact of two opposing judgments for the same case by many an expectant judge, the creeping politicisation of the judiciary, the current prevalent justice-for-cash syndrome that has seized the Bench, the arrest by the Supreme Court of a judgment by the Court of Appeal, the unprecedented dismissal of a case not before it by the same Supreme Court, and the general, popular odium in which the exploits of judicial officers in election tribunals is still held, the least expected of her by a nation that has seen the worst of its judiciary is that she will promptly embark on badly needed reform. But instead of reform, we only see the first glimmer of highhandedness.

It was this type of official highhandedness, especially during military rule, that had in the past been the cause of the destruction of the judiciary. Thus, though General Yakubu Gowon’s forced retirement of Justice Adetokunbo Ademola and General Murtala Mohammed’s subsequent shabby sack of Justice Taslim Elias had amounted to an unprecedented disgrace for the judiciary, it was Elias’ appointment over the head of all his seniors on the Bench more so than his sack that destroyed the fabric of stability holding the judiciary together; and it really opened the floodgates of the ruin that would engulf the judicial arm of government.

Today, the nation cannot afford a rerun of that unsavoury past. A spoils system that politicises the judiciary, which is what disregarding seniority ultimately amounts to, will ill serve the nation and pervert the cause and administration of justice at all levels of the judicial system. The judiciary is pivotal to the nation’s existence in a way the other arms aren’t. While the nation can function without a legislature, as it has been doing for so many years now; for, a legislature is not merely to assemble and make noise; and it can also manage without an executive arm of governance, as it has been managing without an effective for as long; for, machinery for corruption cannot pass for government. But the nation cannot long endure without a judiciary; and that is why Nigeria may not endure, which makes the survival and effective functioning of the judiciary a matter of life and death.

It is well known that even at this very moment the nation’s judiciary is neither free nor independent but that doesn’t mean the nation should fold its arms as attempts are made to make it even less free and more dependent, weighed down by debt of gratitude for an unmerited appointment and made susceptible to the pressure of undue influence something that will still be unacceptable even if it comes from internal sources. If the judiciary has no freedom—and it doesn’t matter who deprives it of this—there will be injustice; and if it has no independence—no matter who has taken it away—there will be miscarriage in the administration of justice. And neither people’s equality before it, nor their accessibility to it, nor even yet its quality and promptness of delivery, will remain unaffected if this stabilising convention is tampered with without good reason. We cannot have a free judiciary and our justices in shackles. But contrary to all speculations and pontificating, the judiciary is not a lame duck: it is in fact a dead duck, unable to fight even its battle for survival. It cannot fight, if it will; and it will not fight, if it can.

In the exercise of the tremendous— and sometimes life-and-death—powers of his office, and in his interpretation and application of the law, the judge must never put himself or be put in a position in which he will be forced to have to rely on anything other than his good conscience, the law and the facts before him in passing judgment.

If it is only now that the Chief Justice discovers that Justice Dalhatu Adamu is unsuitable to occupy the office of the President of the Court of Appeal, our Lordship must accept that her discovery has come rather too late in the day. And it is indeed a clear indictment of the appointments, promotion and discipline procedure of the National Judicial Council that has proved unable to detect and deal with incompetence all along. If the country’s highest court and the repository of all its powers for the interpretation of its laws can and does falter in the mere interpretation and implementation of a wellestablished convention, doesn’t that say a lot about the state of the nation’s judiciary? It says a lot that is not nice to hear.

If Justice Dalhatu Mohammed is not fit to head the Court of Appeal, in which he is currently the most senior officer, he shouldn’t have been fit for appointment to sit in it in any capacity in the first place. And if there is any impediment that can legally stop him from heading the Court of Appeal, the nation reserves the right to know. In the circumstance therefore, the Honourable Chief Justice will do a world of good to her reputation by telling the nation what impediment there is, if any, that stops him—or by allowing Justice Dalhatu Adamu to take his rightful place as the nation’s sixth substantive President of the Court of Appeal.