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Way out of the mess in the temple of justice – Justice Ayo Salami (retd)

Sharia Court of Appeal, knowledge of Arabic language and grammar.”

These rules are ominously silent on qualification of persons to be appointed as a judge. But I entirely agree with the level of experience set out in paragraph 4(4)

1(b). This cannot be faulted. I cannot fathom the implication of 4(4)(1)(c). Does it mean that anyone who finds himself as a Chief Registrar, through merely working in the Registry, could be appointed a  judge, and, in the case of Kadi of a Sharia Court, does it mean that a person who is solely proficient in Arabic and its grammar, without training in Sharia Law, can be considered and appointed a Kadi?

The rules require prospective judges and Kadis to apply for the appointment they desire. The appointment of  judges, throughout common law countries, is through preferment or recognition and not by application. It is the nominating body which  considers a person suitable for the appointment that recommends or invites such a person for elevation to the Bench. It is not respectfully a position to be hassled for; it is a position of honour and dignity!

2.) QUOTA SYSTEM IN THE APPOINTMENT OF JUDGES

*Justice Salami
*Justice Salami

The controversial question of the policy of federal character, euphemistically referred to as quota system, should be carefully re-­-examined in its application to the judiciary, particularly the Supreme Court and, to a lesser extent, the Court of Appeal. There was a time when the Nigerian judiciary was dominated by expatriates and later by the then Western Nigeria, but, with rapid progress in legal education, various parts of the country took up the challenge and have come to take their pride of place in the system. The present situation, whereby the seats in the

Supreme  Court are  shared among  the geographical  zones in  a  water-tight arrangement, is unhealthy.

At a point in time, for instance, when South-­-Eastern Nigeria could not produce a suitable candidate to fill its own quota in the Supreme Court, the Advisory Judicial Council did not hesitate in preferring Uche Omo, JSC, a  judge  from Delta State in the South-­-South, to fill the South-­-Eastern quota, and nothing untoward happened. In these days of strict adherence to quota system, any attempt to juggle in such a manner would be strongly resisted. It is  believed in many  quarters that this complete neglect of merit has deprived the court the opportunity of recruiting eminently qualified and suitable candidates thereby, consciously or unconsciously, weakening the court’s performance. As you make your bed, so will you lie on it! Strictly speaking, this may not qualify as an instance of corruption but a serious weak link which has adversely affected the quality of justice delivery.

3.) COMPOSITION OF THE NATIONAL JUDICIAL COUNCIL

The weakness in the National Judicial Council is inherent in its composition as provided for under paragraph 20 of the Third Schedule, which reads as follows:

“20 The National Judicial Council shall comprise of the following members –

(a)  the Chief Justice of Nigeria, who shall be the Chairman;

(b)  the next most senior Justice of the Supreme Court who shall be the Deputy

Chairman;

(c)  the President of the Court of Appeal;

(d)  five  retired Justices selected by the Chief Justice of Nigeria from the

Supreme Court or Court of Appeal;

(e)  the Chief Judge of the Federal High Court;

(f)   five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in a rotation to serve for two years;“(g)  one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years;“(h)  one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years;“(i)   five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom shall be a Senior Advocate of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-­-appointment:

Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of record; and

(j)   two persons are not legal practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.”

A cursory examination of paragraph 20  stated  above would disclose that, apart from the appointment of the next most senior justice of the Supreme Court who shall be the Deputy Chairman, the President of the Court of Appeal, the Chief Judge of the Federal High Court and the five members of the Nigerian Bar Association, the Chief Justice of Nigeria enjoys absolute discretion in the appointment of other members of the Council. He also has absolute discretion in extending their tenure upon expiration. The Chairman, who incidentally is the (immediate past) Chief Justice of Nigeria, could abuse his office  as it was done  in the recent past; just as the next most senior Justice of the Supreme Court to Katsina-­-Alu was unable to do  what I consider the proper thing at the National Judicial Council Investigating Panel that looked into my case to ensure his own appointment as the next Chief Justice of Nigeria. This tricky situation did not  arise until recently. Honourable Justice Uwais was Chief Justice of Nigeria for almost ten years without a hiccup. For over two years, Honourable Justice Kutigi also tendered the rope adroitly. It is, therefore, a personality problem, as successive chief justices have dexterously exploited the provisions of the composition of the NJC  rather than protecting the service or the system. It should be noted that a position such as that of Chief Justice of Nigeria or any leadership position has inherent risk attached to it, which they are not prepared to stick their neck for.

It is only the National Judicial Council that has a serving head of the institution as its head and who has amply demonstrated how the arrangement could be thoroughly abused. In the circumstance, serious consideration should be given to separating the two positions as is the case with the police and the civil service. The Police Service Commission and the Civil Service Commission are not headed by the heads of those institutions. In other words, neither the Inspector General of Police nor the Head of Service is the head or chairman of the Police Service Commission or Civil Service Commission. Such Chairman, in the event of an infraction on his part, can easily be eased out of office; but, the same is not the case with a Chief Justice who fouls his seat while doubling as Chairman of the Council. The patronage the non-­-statutory members derive from him, such as appointment into the Council and extension of their tenure, makes them vulnerable and feel obliged to him and not to the body they are appointed to serve and are invariably prepared to kowtow.

It is, therefore, important that an individual or person who is not in the system, such as a retired Chief Justice of Nigeria, a retired President of the Court of Appeal or a respectable and experienced legal practitioner is made the Chairman of the National Judicial Council.

Howbeit, going through the Constitution, there is no institution entrusted with the composition of itself as the National Judicial Council and, having betrayed the trust reposed in it, a re-­-approachment must be sought. I believe there should be a return to the good old days of Advisory Judicial Council where the Chief Justice of Nigeria, President of the Court of Appeal and Chief Judges of the State and Federal High Courts are members of the Council in their own right as no one is beholding unto the Chief Justice of Nigeria. If the retired Supreme Court and Court of Appeal  justices must be members, they should be, but, with determined tenure, including an extension in accordance with the order of their retirements from their respective courts.

The members of the Bar Association provided for in paragraph 20 (i) may continue, provided that their role should not be restricted to only appointing judges but also extended to include discipline because the power to hire is the power to fire. If they were there when judges were appointed, there is nothing wrong with their being party to the discipline of judges. But my reservation about inclusion of members of the Bar Association is that it is alleged that some of them flaunt their“membership of the National Judicial Council before election tribunals and courts to intimidate  judges!

4.) TENURE OF HEADS OF COURTS

The Chief Judges of both the State and Federal High Courts should have a prescribed tenure of not more than five years during which they are considered for appointment to the Court of Appeal or proceed on voluntary retirement. A long tenure, sometimes spanning over ten years, is most unhealthy. An aspiring candidate for the offices of Chief Justice of Nigeria, President of Court of Appeal, Chief Judges, federal or state or any head of court, whose age is less than five years from the age of retirement, should not be appointable. Frequent change of heads of courts results in instability.

5.) SUGGESTIONS ON HOW CORRUPT JUDICIAL OFFICERS CAN BE DISCIPLINED

In the circumstance, corruption, being criminal in nature, a solution that can be proffered is that judicial officers, who are suspected of committing a crime, should be referred to the State Security Service, Economic and Financial Crimes Commission, Independent Corrupt Practices and Other Related Offences Commission or the Nigeria Police for investigation and possible prosecution. For those of them who are found culpable or liable, the President may consider giving them soft landing by allowing them to resign and proceed on compulsory retirement or permit the law to take its due course. The present situation where there are serious allegations of corruption against a judicial officer in several petitions and the National Judicial Council let him off the hook on an investigation of only one of the several petitions and retires him seemingly suggests that the interest of justice has not been served.

The outstanding petition(s) should also be sent to the police for necessary action. A recently compulsorily retired judicial officer trivialized the decision of the National Judicial Council by saying that he was not retired on the allegation that he received one hundred million naira from a state   governor  to nullify the election of local government chairmen but it was in relation to a Shell case. The outstanding petitions ought to have been investigated and pronounced upon to determine whether he merits retirement or dismissal. Merely sending the officer on retirement without an order for refund of the booty is grossly inadequate. Be that as it may, these are criminal cases and should not terminate with NJC decision. Such judicial officers should be referred to the relevant security agencies for investigation and determination of their criminal responsibility.

In the alternative, the government might wish to consider taking steps similar to what I understand Kenya took in combating such vexed issues. When the country decided to rid its judicial system of corruption, she suspended all her judicial officers and subjected them to an enquiry. The criterion adopted, I learnt, in addition to the usual allegation of corruption to which the judge may answer with the typical contention of lack of evidence, was that the judgment(s) or order(s) of the judge or justice or Kadi, as the case may be, were subjected to scrutiny and, if found correctly determined, the officer is allowed to return to the Bench. But if the judgment(s) or order(s) was found wanting or flew in the face of the law or facts or both, the judge was deemed corrupt or incompetent; on either view, he was found unsuitable for the position and was consequently shown the way out of the country’s judicial system. Thus the contention that corruption had not been proved in the sense that there was no evidence or there was no corroboration would no longer be tenable. Clearly, this approach does not provide room or opportunity for crass technicality.

This suggestion may require the Commander-­-in-­-Chief sending a team to Kenya to study the relevant institution in that country and the role to be played by our National Assembly. The exploratory team may also obtain the relevant legislation Kenya enacted to put the body in place. In doing this, respectable men of integrity must be selected.

 

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