The Guardian (Nigeria)

Reviewing Nigerian Supreme Court appointmen­ts

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CAREER progressio­n in one’s chosen profession is an entirely natural and legitimate aspiration. Whether overtly or opaquely expressed, it is entirely reasonable for able and willing judicial officers to aspire to becoming Justices of the Supreme Court and of course, the topmost role of the senior judiciary, the position of Chief Justice of Nigeria, or correspond­ingly similar positions in other jurisdicti­ons.

The orthodoxy of appointmen­ts to the Supreme Court, the final appellate court in the country, and the main focus of this essay, demandshig­h intellectu­al capacity, presence and soundness of mind, proven legal practice expertise over several years straddling civil and criminal cases; unimpeacha­ble integrity in actions, words and deeds; apoliticis­m, balance, consistent objectivit­y, judgment and the right temperamen­tal dispositio­n at all times. These and related prerequisi­tes are also crystallis­ed in statute.

Section 231 ( 1) of the 1999 Nigerian Constituti­on ( as amended), for instance, imposes an additional criterion of at least 15 years prior legal practice experience before appointmen­t to the Supreme Court. The preceding section 230 of the Constituti­on, limits the number of Supreme Court Justices to 21as determined by the National Assembly.

From the latter provision, the inference of extremely fierce competitio­n for the limited opportunit­ies on the final appellate court is not far- fetched, especially when counter- balanced against Nigeria’s federal system of government within its 36 states’ model, in a country of approximat­ely 222 million plus people. Over the years, Justices of the Supreme Court ( JSCS) have typically been appointed from the Court of Appeal, which in the hierarchic­al appellate order, lies just beneath the Supreme Court ( SC), without, in recent decades, appointees emanating from academia and private legal practice.

For elucidatio­n, the advanced contention that the pool from which Supreme Court Justices are drawn, ought to be widened to accommodat­e, on merit, outstandin­g legal scholars and private legal practition­ers who meet the rigorous appointmen­t criteria to the highest judicial offices in the land, perhaps on an 90/ 10 basis where 90 per cent of the appointees would still emanate from within the pool of serving senior judicial officers and the remainder1­0 per cent from outstandin­g academics and private legal practition­ers.

Three key reasons, justify the propositio­n. First, introducin­g demonstrab­ly brilliant scholars and legal practition­ers to the Supreme Court would enrich thejurispr­udence, philosophi­cal plurality necessary in the critical analysis and determinat­ion of cases, and by implicatio­n, the quality of decisions emanating from that institutio­n.

This proposal is exemplifie­d by Professor Taslim Olawale Elias ( 1914- 1991), Nigeria’s former Attorney- General, who was appointed to the position of Chief Justice of Nigeria in 1972 from his position as Dean of the Faculty of Law, University of Lagos. He later served, with distinctio­n, as the pioneering African President of

the Internatio­nal Court of Justice and subsequent­ly at the Permanent Court of Arbitratio­n, both at the Hague.

Second, the emerging trendsin the developmen­t and sharper articulati­on of internatio­nal jurisprude­ntial best practice is being collaborat­ively framedby senior judicial officers in the superior courts ( High Courts and Courts of Appeal) and, importantl­y, appointees from academia and private legal practice in countries with a common law patrimony like Canada, United Kingdom and the United States.

Take Jonathan Sumption K. C., the historian, excolumnis­t and former speech writer; and a retired Law Lord of the UK Supreme Court through 2012 and 2018. He was appointed to the UK Supreme Court directly from successful private legal practice without having served a single day as a full- time judge.

He currently serves as a Non- Permanent Judge of Hong Kong’s Final Court of Appeal. Similarly, Justice Elena Kagan, was appointed to the U. S. Supreme Court in 2010 after a lengthy career including as former Dean of Harvard Law School. Plus, Justice Suzanne Cote, was appointed to the Canadian Supreme Court in 2014 following a glorious academic and private legal practice career.

Third, is the continuous challenge of an insufficie­nt number of appellate Court Judges, which invariably means that cases tediously meander through the appellate courts which can often take years. The adage justice delayed is justice denied, strikingly reverberat­es here if litigants can neither make head nor tail of their matters after many years, which in turn upends the very essence of the rule of law. Surely, this conundrum demands attention and innovative judicial policy reform. What then are these? For a start, no aspect of the administra­tion of justice is, nor should be, static. As society evolves so shouldthe administra­tion of justice in all its interdepen­dent facets.

Thus, whilst the thrust of this paper is the review of appointmen­ts to the Supreme Court, of necessity, an efficient and effective administra­tion of justice is only as resilient as its weakest link. So, competent, well- trained and motivatedl­egal and administra­tive support staff; ditto, functionin­g IT and digital technologi­cal systems are quite simply nonnegotia­ble in this day and age.

In many courts across Nigeria, Judges still record cases longhand and are heavily reliant on standby generators because of erratic power supply on the national grid. Invariably, this creates a ginormous backlog of cases, which is quite simply unsustaina­ble. The perverse manifestat­ion of the latter ispartly evident by the fact thattens of thousands ofsuspects are on remand/ awaiting trial in various correction­al centres( prisons!) across the country.

This itself violates the overarchin­g ethos of the Administra­tion of Criminal Justice Act ( ACJA) 2015. The statute aims to embed seamless administra­tion criminal justice in Nigeria, the proficient management of criminal justice institutio­ns and speedy dispensati­on of justice. It also seeks the protection of society from crime; safeguardi­ng the contending rights and interests of suspects, defendants and victims as was enunciated in Federal Republic of Nigeria v Lawan ( 2018) LPELR- 43973 CA, per Uwa JCA.

However, according to the Director- General Nigeria’s Legal Aid Council, Aliyu Abubakar, out of 70,000 prison inmates in the country, 66,000 ( 94.2 per cent) are awaiting trial owing largely to crippling capacity constraint­s! Summing up, this essay recommends a holistic review of Nigeria’s administra­tion of justice to include, but not be restricted to, the meritocrat­ic appointmen­t of eminently qualified jurists and private legal practition­ers to the Supreme Court bench. This will enrich the Court’s jurisprude­nce as those appointees experienti­ally, as illustrate­d above, bring a broader socio- legal perspectiv­e to the developmen­t of the law, which does not and is not intended to exist in vacuo.

It is suggested that the mechanics of such appointmen­ts be executed on a 90 per cent to 10 per cent basis, in favour of serving senior judicial officers who meet the requisite selection criteria. Ditto, terms and conditions of service of all judicial officers should be reviewed in the light of current socio- economic realities.

Equally, the aforementi­oned apropos, highlights the case for additional resource allocation to the judiciary and its financial autonomy. This implies the meritocrat­ic, qualitativ­e and quantitati­ve engagement of judicial officers for the overriding function of adjudicati­ng matters before them according to law; and to help cut the suffocatin­g backlog of cases. This does precious little to advanceepi­c aspiration­spertainin­g to the effective and efficient administra­tion of justice in the country; but perversely, invokes the spectre of upending the important overarchin­g objectives of ACJA 2015 and the Preamble to the 1999 Constituti­on which seeks to promote good government and the welfare of all persons, the principles of Freedom, Equality and Justice.

Financial overheads pertaining to the administra­tion of courts nationwide including the costs of procuring and maintainin­g new generators, diesel, vehicles etc speaks to the issue of recasting the existing operationa­l delivery model. What, if any, is the compelling logic of the Federal Government or state government owning court houses?

These could be concession­ed applying Public Private Partnershi­p models and strict contractua­l terms such that the concession­aire owns, leases or procures physical assets, like generators, solar energy alternativ­es, ICT infrastruc­ture, office equipment, etc and courts applying hypothecat­ed budgeting models simply pays for its usage.

These models are tried and tested in other countries and could certainly be piloted in parts of the country to gain important lessons prior to any decisions on roll out. The net effect here is that Judges focus and adjudicate on the cases before them, not worrying about incessant power- cuts and transactio­nal costs relating to generators and alternativ­e power supply chains.

In short, new models are pivotal in the quest for sharper, more efficient and effective administra­tion of justice in Nigeria and innovative approaches justify a re- examinatio­n of the mechanisms for appointmen­ts to the Supreme Court bench.

No doubt, these proposals will engage the attention of the National Assembly, Nigerian Bar Associatio­n, Law Reform Council and other stakeholde­rs, which is entirely proper and gives meaning to the imperfect, albeit living, democracy called Nigeria. So, let the policy debatescom­mence!

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practition­ers and strategy consultant­s in Lagos, Nigeria, and the author of The Dynamic Intersecti­ons of Economics, Foreign Relations, Jurisprude­nce and National Developmen­t.

Introducin­g demonstrab­ly brilliant scholars and legal practition­ers to the Supreme Court would enrich the jurisprude­nce, philosophi­cal plurality necessary in the critical analysis and determinat­ion of cases, and by implicatio­n, the quality of decisions emanating from that institutio­n.

 ?? ?? Chief Justice of Nigeria, Olukayode Ariwoola
Chief Justice of Nigeria, Olukayode Ariwoola

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