By Aare Afe Babalola (SAN),
Against the backdrop of the attention which the unfortunate death of George Floyd at the hands of police officers in the United States of America has generated, there has been a renewed focus, worldwide, on issues bothering on racism and indeed discrimination of any sort.
Here in Nigeria, recent events in Cross River State surrounding the appointment of a substantive Chief Judge presents a stark reminder of just how far we are from true integration and existence as a nation and how politicians are least interested in anything that would bring peace and unity to the governed.
Honourable Justice Akon Ikpeme, the most senior Judge in the Cross River State Judiciary who has been recommended by the National Judicial Council for appointment by the Governor was not confirmed by the Cross River State House of Assembly upon being presented to it.
The Cross River State House of Assembly, upon assessment of the candidate, concluded that Justice Ikpeme, who is an indigene of Akwa Ibom but who is married to an indigene of Cross River State, constitutes a security risk to Cross River State.
It therefore on this basis alone declined to confirm her appointment as the Chief Judge of Cross River State. As I will explain, this amounts to discrimination against the person of Hon. Justice Ikpeme contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
Firstly, it is pertinent to consider the position of the law regarding the appointment of a Chief Judge of a State vis-à-vis the situation in Cross-River State. Section 271 (1) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides 271. 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.
The Governor of a state appoints a person to the office of the Chief Judge upon the recommendation of the National Judicial Council. This appointment is subject to confirmation by the House of Assembly of the State.
This method was put in place by the Constitution to insulate the Judiciary from the whims and caprices of the Executive or the Legislative Arms of Government, and therefore guarantee the independence of the Judiciary which is necessary for any democratic arrangement.
In making its recommendation to the Governor of a State, the National Judicial Council does not act in isolation. Its recommendation is predicated upon the list of persons submitted to it by the State Judicial Service Commission. (See Paragraph 21, Part 1, Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
The National Judicial Council filters through the list on the merit and recommends a name to the Governor for the appointment. This recommended candidate is the candidate who emerges most meritorious amongst the chosen few.
What qualifications do the National Judicial Council and State Judicial Service Commission look out for in shortlisting candidates for the position of Chief Judge? Rule Three (6) of the National Judicial Council’s Procedural Rules provides that in carrying out the provisional shortlisting of a candidate, the Chairman of the State Judicial Service Commission shall take into consideration the following:
a.Professional expertise and competence
b. Sound knowledge of law
c. Seniority at the Bar and or the Bench
d. Federal character or geographical spread where necessary and possible, without compromising the independence of the Judiciary or allowing politics to permeate or influence the appointment
Rule Four (4) of the National Judicial Council’s Procedural Rules further provides that in considering the candidates, the Commission shall take into account, in all cases, good character and reputation, diligence, hard work, honesty, integrity and sound knowledge of the law and consistent adherence to professional ethics.
Worthy of note is that amongst all the qualities expected of a candidate for Chief Judge, there is no provision in the Constitution which requires that the candidate must be an indigene of the State in question.
Justice Ikpeme meets the criteria
Does Hon. Justice Ikpeme tick all the boxes? The answer to this question must be in the affirmative. She is the most senior Judge in the Cross River State Judiciary. She has the qualifications to hold the position of Chief Judge of the High Court.
Most important of all, the National Judicial Council found her fit and proper to occupy the position on the merit and recommended her appointment as Chief Judge to the Governor of Cross River State.
The Cross River State House of Assembly, unable to fault her appointment on the merit has, therefore, simply resorted to extraneous matters which have no constitutional backing. Refusal of confirmation based only on the fact that she is not an indigene of Cross River State by birth is in my view discriminatory in the extreme.
Section 15 of the 1999 Constitution provides 15. 1. The motto of the Federal Republic of Nigeria shall be Unity and Faith, Peace and Progress. 2. Accordingly, 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.
3. For the purpose of promoting national integration, it shall be the duty of the State to: … c. encourage inter-marriage among persons from different places of origin, or of different religious, ethnic or linguistic association or ties; and …
4. The State shall foster a feeling of belonging and of involvement among the various people of the Federation, to the end that loyalty to the nation shall override sectional loyalties.
Section 42 further provides:
42. 1. 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 by, 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 …
2. No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
3. Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Force or to an office in the service of a body, corporate established directly by any law in force in Nigeria.
The House of Assembly of Cross River State forms a part of the government of that State. Furthermore, its role in the appointment of a Chief Judge by confirming the said appointment is thus an act of government which by the provisions of the Constitution stated above, must not subject any Nigerian to any restriction or disability by reason of his place of origin amongst others.
Therefore, howsoever the reasoning of the House of Assembly is couched, it is clear that her place of origin, being Akwa Ibom State has played a huge role in the decision of the State House of Assembly to refuse her confirmation. This action contravenes the Constitution of the Federal Republic of Nigeria which recognises the right of a citizen to equality regardless of origin.
At the time of her appointment as a Judge, her place of origin was not a factor that could have deprived her of the opportunity of that appointment. It is, therefore, ludicrous, illegal, and against the laws of Nigeria to deny her of appointment as Chief Judge on basis of her state of origin.
In the State of New York, the United States of America, an appointment into the bench of the Court of Appeal of New York State, is made by the Governor from a list of nominees prepared by the Commission on Judicial Nomination, with the advice and consent of the State Senate. The eligibility requirements for appointment include residence in New York State and admission to practice as an attorney in New York State for at least ten years.
It thus appears that the appointment process bears similarities with the position in Nigeria. It is clear from the eligibility requirements that a Minnesotan, who is resident in New York State and who has practiced in New York for at least ten years can be appointed as a Judge and even a Chief Judge.
This is what a progressive jurisdiction ought to have a semblance of. Extraneous matters such as state of origin ought not to have any consideration in the appointment/confirmation of appointment of Chief Judges.
The confirmation of the appointment of a Judge by the House of Assembly should not extend towards extraneous matters such as place of origin. The constitutional provision requiring confirmation of the appointment by the House of Assembly is a check and balance measure on the executive.
The House is not expected to consider extraneous matters. The House of Assembly is expected to check the qualifications of the candidate and ensure that such a candidate is qualified to occupy that office.
The House of Assembly is not the body responsible for verifying the suitability of the candidate. The National Judicial Council and the State Judicial Service Commission have the responsibility of screening the candidate to ensure that such a candidate is a fit and proper candidate for the office of Chief Judge.
The law does not envisage a situation where the House of Assembly will extend its responsibility towards extraneous matters such as place of origin. If the National Judicial Council has found a person capable and fit to be a judge, it is impertinent for the House of Assembly to consider places of origin and based on the same decline to give their confirmation.
Given the national integration policies in Nigeria, a House of Assembly, a body saddled by the Constitution with the important task of law making should not lend itself to practices or considerations that will not foster unity in Nigeria.
The government of Cross River State as a whole must learn from some other states of the Federation, most notably Lagos State that has a history of appointing non-indigenes to its Judiciary with some of them rising to become Chief Judges.