Being the fourth instalment of excerpts from “Appointment of A Chief Judge of a State in Nigeria – My Experience and The Ascent of Pragmatism and Constitutionalism”contributed by Hon. Umezulike to Judicial Integrity Independence and Reforms: Essays in Honour of Hon. Justice M. L. Uwais (GCON) (CJN)
By Justice Innocent Umezulike
MY experience also evinced the triumph of the doctrine of separation of powers. The doctrine refers to the concept that each branch of our tripartite government has its own role and that no branch shall exercise the powers of the other two. Evidently, the separation of powers and the system of checks and balances of each branch over the other is a central feature, and a criteria safeguard of our constitutional democracy.
If the N.J.C. is able to read the handwriting from the State Judicial Service Commission and respect the thinking of the Governor of the state on the matter, the succession exercise will never leave a bitter residue at the end of the day. Obviously, this is not a case for the superiority of the executive arm of government. The idea we are simply trying to put forward is that the various organs involved in the selection or succession exercise must not unnecessarily objectify a process which the constitution has clearly declared to be political.
From the foregoing, the following suggestions emerge:
•The State Judicial Service Commission, JSC, must recommend to NJC the judges for the appointment after due consultation with the Governor of the State. This approach is desirable in many respects. It will ensure that the person or persons eventually recommended to the Governor are acceptable to him. It will save time and ensure that the three arms of government operate not in conflict but in great complimentarity to one another.
Harmonious co-existence between the Judiciary, the Executive and the Legislature has no bearing whatsoever to judicial dependence or independence. Obviously in the process of judging, judges put aside their personal beliefs and dispositions and decide what the law requires and what the facts lead to.
The articulate concern for protecting the interest of the court’s decision making process strictly a legal process, not political. Therefore judicial dependence should not be a cloak that could be thrown around a nominee at the very last minute, and when he may not have the opportunity to defend or explain himself before the NJC. The JSC should also weigh the character, fitness and intellectual competence of the nominees. This is because a Chief Judge must have noble concept of the office and use it to accomplish desirable results. He must also evince some intellectual, moral and philosophical leadership of the State Judiciary.
•The NJC upon receipt of the nomination or recommendation from the JSC shall forward the names unedited to the Governor, “For his action please”. The governor in exercise of his powers under the Constitution will, therefore, appoint one out of the names sent. The point we are making is this. If NJC received a list of three judges from the JSC unless there are grave legal reasons to the contrary, it must send the list as received to the governor who then decides ultimately who to appoint from the list. This is the only way the N.J.C. can keep away from political conflagration and retain its awareness and integrity.
•It is necessary to point out here that most decisions of the JSC and NJC filter into town even before members rise from the meeting. Leaks are vey deplorable and they activate petition writers to go to town. And these leaks diminish the integrity of the process.
•From the list of three judges sent to the Governor, it will be his absolute discretion to send the name of one of the judges to the House of Assembly for confirmation. If the House rejects one, he would send the other as the case may be until confirmation is received. In similar important appointments at the federal level, three names are usually sent to the President of Nigeria from which one of them get appointed. No agency of the Federal Government can or is capable of insisting that a particular person must be appointed by the President. This practice is trouble-free and that is what is envisaged in the appointment of the Chief Judge by the Governor of the state. In short, the argument when reduced to its last analysis comes to the fact that the appointment of a Chief Judge of a State is a political process and the role of the Governor is paramount and prevailing.
•A judge with fundamental allegiance to law and judicial ethics even if appointed by his father or father-in-law cannot bend the law for him.
•The honour of being a Chief Judge of a State shall be reserved for only those who have legitimate claim to distinction in character and learning, and or, to those whose temperament, character and administrative tendency best reflect judicial and personal commitment to excellence. In this regard any distinguished legal practitioner at the Bar or in academics who has evinced above attributes and who has been on the job for not less than twenty years could be appointed a Chief Judge or his State.
Roster of judges
There is nothing in any law or in the text of the Constitution to suggest that the selection must be confined fairly closely to the roster of judges in the State.
•We must also note, though obvious it may seem, that a judge rejected for the office of a Chief Judge today, could, if he rectified the deficiencies that denied him the position in the first, becomes a Chief Judge in future. That he or she is rejected now does not make him lose his life. He will not lose his Court. He could still go to the Court of Appeal and there begin a journey to the apex court.
Finally, it is well to point out that the matter under evaluation may not be exhausted by any single perspective. Plural Perspective may be needed. We leave that to rejoinders and exponents of other views. We are also typically aware that in every lively legal discussion, contrary opinions must sporadically show their heads.
But we insist that the views advanced above are valid, useful, practical, cogent and preferable.