In this report, Vanguard Law and Human Rights digs into the history of the composition of the Supreme Court bench from the pre-Independence era till date; traces the judicial policy regulating appointment or replacement of justices into the apex bench; surveys lawyers’ grouse against the current mode of appointment of justices into the nation’s appellate court and argues that it is high time the new pilot of the judiciary revisited the current NJC policy in the interest of not only the third arm of government but also the country at large.
On September 15, 2022, the Body of Senior Advocates of Nigeria, BoSAN made a fresh case to the National Judicial Council, NJC for urgent review of its policy on appointment of justices to the Supreme Court bench.
The body of senior lawyers seized the opportunity of the occasion of the valedictory court session organised by the Supreme Court of Nigeria for Justice Abdu Aboki, to make the case.
Justice Aboki is one of the 14 justices of the apex court until last Thursday when he honourably bowed out of the bench without blemish for clocking the mandatory retirement age of 70 years.
Aboki’s exit has yet again depleted the number of Supreme Court justices from 21 to 13.
How was it at the Supreme Court before the ongoing Fourth Republic?
Vanguard reports that the composition of the Supreme Court at any time is governed by constitutional and other statutory provisions.
According to Dr Mojeed Alabi: “At the inception in 1954, the Federal Supreme Court was to consist of the Chief Justice, two Federal Judges or such greater number as might be prescribed by the Federal Legislature and such number of acting Federal Judges as might be appointed under section 139 (3) of the 1954 Constitution.
“Under the 1960 Constitution, the composition of the Supreme Court was slightly modified as the constitution provided for a Chief Justice of the Federation and not less than three justices.
“The 1963 Constitution also modified the composition to include a Chief Justice of the Federation and not less than five justices even though the Supreme Court Act of 1960 provided that number of Supreme Court justices shall be nine.
“Two Acts of the Federal Parliament passed in 1964 increased the minimum to eight. It was, however, raised to 10 in 1977 and 12 in 1979.
“Under the 1979 Constitution, the maximum number of justices was increased to 15 excluding the CJN,” he added.
But with the promulgation of Decree 24 which heralded the 1999 Constitution, the membership of the Supreme Court was increased to a maximum of 21 justices excluding the CJN while section 231(3) of the 1999 Constitution provides that “a person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”
Notwithstanding the constitutional provision, the highest number of justices appointed to the Supreme Court was 17 all through the tenure of Justice Muhammad Lawal Uwais (1995-2006) and the first quarter of 2020 during the tenure of the immediate past Chief Justice Tanko Muhammad (2019-2022).
However, most times, the number of justices on the Supreme Court oscillated between 11 and 14 while all through the 1995 and 2022 legal years, no lawyer in private practice or academia was appointed to the Supreme Court as it used to be in the past.
How has appointment been made to the Supreme Court since the commencement of the ongoing Fourth Republic?
Vanguard reports that the Supreme Court is presently composed of the newly sworn in Acting Chief Justice of Nigeria, Justice Olukayode Ariwoola and 12 other justices from different geo-political zones of the country.
The 12 other justices are Justice Musa Datijo Muhammad, Niger, North-Central; Justice Kudirat Kekere-Ekun, Lagos, South-West; and Justice Chima Centus Nweze, Enugu, South-East.
Others are Justice Amina Augie, Kebbi, North-West; Justice Uwani Musa Abba-Aji, Borno, North- East; Justice John Inyang Okoro, Akwa Ibom, South-South; Justice Lawal Garba, Zamfara, North- West and Justice Helen Ogunwumiju, Ondo, South-West.
Also in the Supreme Court are Justice I. M. Salnwa, Katsina, North-West; Justice Adamu Jauro, Gombe, North-East; Justice Tijani Abubakar, Jigawa, North-West and Justice Emmanuel Agim, Cross River, South-South.
Statistics from the list above show that four of the 13 justices are from the North-West, only one from the North-Central, two from the North-East totalling seven justices from the Northern part of the country.
Data from the list above also show that South-West has three justices, one justice from the South-East and two others from the South-South totalling six justices from the Southern part of the country.
Vanguard reports that the number of justices from the Northern part of the country was nine (9) until the immediate past Chief Justice of Nigeria resigned his office on June 27, 2022 while the South had six.
Whereas, section 14 (3) of the 1999 Constitution provides that “the composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the Federal character of Nigeria and the need to promote national unity and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or in any of its agencies.
Vanguard reports that the relevant authorities since the present Supreme Court was established by section 230 (1) and (2) of the 1999 Constitution (as amended), including the Federal Judicial Service Commission, FJSC headed by the Chief Justice of Nigeria and the National Judicial Council also headed by the CJN, have merely promoted justices of the Court of Appeal to the Supreme Court bench to fill vacant seats purportedly in line with the Federal character policy of the Nigerian state as enshrined in section 14(3) of the 1999 Constitution.
All past Chief Justices of Nigeria since democracy berthed in May 1999 who had the opportunity to recommend best brains including serving super judges with impeccable record from both the bar and the bench as the old Supreme Court in Lagos did to fill available vacancies at the Supreme Court during their tenure, failed to so do but merely promoted justices of the Appeal Court to the apex court.
The past CJNs are Justice Muhammad Lawal Uwais (1995-2006); Justice Salisu Modibbo Alfa Belgore (2006-2007); Justice Idris Legbo Kutigi (2007-2009), Justice Aloysius Iyorger Katsina-Alu (2010-2011); Justice Dahiru Musdapher (2011-2012); Justice Aloma Mariam Muhktar (2012-2014); Justice Mahmud Mohammed (2014-2016); Justice Walter Nkanu Onnoghen (2017-2019); Justice Ibrahim Tanko Muhammad (2019-2022).
All the nine past CJNs were themselves beneficiaries of the seniority on the bench rule to find their ways into the exalted seat of the CJN.
Although some of them, upon elevation to the CJN seat, promised to consider exceptional candidates from the bar but always opted for the old criterion when it was time to fill the vacant seats at the Supreme Court.
Why did the appointing authorities stick to the present appointment policy?
According to a former NBA President, Mr. OCJ Okocha (SAN), he recalled pre-Justice Muhammad Lawal Uwais administration when lawyers were appointed directly from the bar to the Supreme Court bench and that they performed very well.
“In the past, people like Teslim Elias who had never been a judge was moved from being a Dean of Law at the University of Lagos to become the CJN and thereafter, he went to the International Court of Justice at the Hague. People like Oputa, people like Kayode Esho, they were Chief judges of Western Region and Imo State respectively. They were moved straight to the Supreme Court,” adding that he did not know why the Supreme Court stopped the practice of appointing lawyers in private practice and state chief judges to the Supreme Court.
But explaining why the practice was stopped, a former Chief Justice of Nigeria, Justice Muhammad Lawal Uwais, in an interview said certain factors were considered.
Why my tenure stopped the practice of appointing lawyers without judicial experience to the S’Court
According to Uwais: “I belong to the old school. It was during my time as CJN that we said no, Senior Advocates of Nigeria, who want to come to the Bench should start from the level of the High Court or at best at the level of the Court of Appeal. That was the policy when I was a member of the National Judicial Council, NJC, and I still remain with that view.
“Part of the problem is not just the ability of the judge you want. There is the issue of integrity. If you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where whether you are a corrupt person would have been discovered. From your judgments also, the Court of Appeal would have known how good you are if you are at the High Court. But if you are a legal practitioner, you haven’t written any judgment. So, there is no way you can be assessed in that respect.
“Again, you are not under the supervision of anybody when it comes to integrity and those are the two points why we felt, anybody who is at the Bar who wants to go to the Supreme Court bench should start from the lower Bench.”
But the Body of Senior Advocates of Nigeria would not agree with Uwais.
The body had, therefore, consistently routed for the review of the judicial policy that has been in operation for more than 20 years now.
In sync with its earlier position on the issue, one-time President of the Nigerian Bar Association and Chairman of BoSAN, Chief Thompson Onomigbo Okpoko (SAN) in a speech delivered at the court session organised for retired Justice Aboki urged the new Chief Justice of Nigeria and Chairman of the National Judicial Council, NJC, Justice Kayode Ariwoola to have a rethink on the mode of appointing justices to fill the existing vacancies at the apex court.
BoSAN is contending that the selection and appointment of Justices for appointment to the Supreme Court and the Court of Appeal on the basis of replacement is one that cannot result in the appointment of the best lawyers into the appellate Courts in the country.
“The National Judicial Council as the appointing authority should address this issue and appoint the best candidates of our country to man our courts. After all, Justice is blind and so does not look at or see the faces of litigants.”
Standard of Supreme Court judgments in question
Although some top lawyers argued that Uwais no doubt meant well for the judiciary with his administration’s decision, they nonetheless said that the policy appears to have lost its value.
Already, stakeholders are complaining about the quality of judgments emanating from the apex bench lately.
Specifically, they argued that the Supreme Court case law is now replete with errors, low with muddled depth of jurisprudence, bereft of scholarly analysis, and sometimes, counter-productive.
Stakeholders flash back, interrogate the present situation
According to a Professor of Law and former Dean of Law Faculty, Lagos State University, Mike Ikhariale: “There is no denying the embarrassing fact that the Nigerian Judiciary is currently on trial in the court of public opinion because of the controversies that have trailed some of the incongruous and logically reprehensible decisions that the apex court and courts below it have delivered in recent times.
“All decent societies hold their judges in the highest possible esteem, almost as if they are demigods. The corollary of that extremely high societal regard is that they are expected to be incorruptible, beyond reproach and decently comported, capped with intellectual acuity.
“That certainly explains the usual deep sense of shock and disappointment by members of the society whenever a judge is found wanting either by manifesting awful jurisprudential incompetence or indulging in disgraceful misconducts such as bribery and corruption.”
Ikhariale blamed the present situation of promoting justices of the Court of Appeal to the apex bench on what he called the self-serving and nepotistic empire-building instincts of those charged with the sacred responsibility of nominating justices into the Supreme Court that have incestuously cornered it in favour of those already holding judicial appointments as if it were a vocational cult or a secret society.
“That institutionalised aberration has unwittingly denied the nation the services of some of her best legal minds while at the same time promoting a myopic and mediocre judicial outlook,” he had fumed.
Also toeing the path of Prof. Ikhariale, another Professor of Public Law and President of the Centre for Socio-Legal Studies, CSS, Prof. Yemi Akinseye-George, argued that whereas, judicial appointments under the Constitution are reserved for legal practitioners of verifiable integrity with no restrictions whatsoever as to their areas of legal practice, no lawyer was directly appointed to the Supreme Court as it happened in the past to make for plurality of views.
“For me, I think we need to make the Supreme Court more plural. We need to have at least an academic or two because the way the academics think is different from the way judges think.
“So if you bring in a few academics, that will spice up the court and they will kind of bring in the outside-the-box thinking unlike now when we rarely find dissent and dissent is necessary for orderly development of the law.
“We hardly find dissenting opinions at the Supreme Court these days. It wasn’t so in the past. A situation in which every Justice will be agreeing at all times is not okay for the proper development of the law.
“In a court of 21 justices, we can concede may be 75% to judges, while the remaining 25% can be conceded to senior lawyers and academics who have never been judges so that we can spice up the court.”
The pioneer Attorney-General and Commissioner for Justice of Osun State, Asiwaju Gboyega Awomolo (SAN), in his own view said: “We have been agitating, urging that the appointment into the Supreme Court should not be restricted to justices of the Court of Appeal and that other qualified Nigerians in the academia and private legal practice be considered.
“Unfortunately, in the current exercise going on, Justice Tanko (now retired) administration restricted the recommendation again to justices at the Court of Appeal. Appointment into the Supreme Court now depends on the CJN who is the chairman of the NJC and the general thinking of the members of the NJC.
“However, I really do not want to bother myself with the number of justices from each region. I want the appointment of the Supreme Court to be simply on merit. Emphasising federal character will amount to compromising standard and that has been the major complaint of the NBA: when you start looking for federal character compliance, you are more or less compromising the principle of meritocracy,” he said.
According to another respected silk, Chief Benbella Anachebe (SAN), he is of the view that the best brain should find their way to the Supreme Court.
“So, what we want is the best. The idea of dominance, tribalism, nepotism and other things should not apply to such sensitive position like appointment into the Supreme Court bench where policy decisions are supposed to be churned out. What we have today is a deliberate policy that a section of the country or sections of the country dominate in all spheres of life in governance. That is the greatest error of the Buhari regime where nepotism, religious considerations have been elevated.”
Another prominent member of the inner bar, Chief Mike Ahamba (SAN) said he was also in support of merit as yardstick to appoint justices into the Supreme Court but that he would not give any opinion contrary to the constitutional provisions.
But another top lawyer who does not want his name in print said that the present situation at the apex bench requires emergency situation.
He said pending the time the Supreme Court would sort itself out regarding the proper persons to appoint into the apex bench, he said the following measures must be taken urgently:
a) Amicus Curia role and officers should be introduced and standardized in the Supreme Court. An Advocate General Office should be set up to manage, consider, and participate in all public and constitutional law litigation.
b) Standards of legal assistants’ employment should be re-assessed. There should be evidence of a strong research capacity with a minimum number of publications spread across reputable journals in constitutional law, public law, business law and international law.
“I agree that in our federal system, the Supreme Court must reflect federal character so that all Nigerians will have a sense of representation in the court. However, federal character must be applied along with the principle of meritocracy.
On-going efforts to fill available vacancies at the Supreme Court
Although the number of justices appointed to the Supreme Court bench hit a record high 21 in the first quarter of 2020 legal year under Justice Ibrahim Tanko, death, retirement and resignation have depleted the figure to 13 justices as at today.
Vanguard reports that between the first quarter of 2020 and September 2022, five of the Supreme Court justices had retired for clocking the mandatory retirement age of 70 years, two died in office owing to protracted illness while the Chief Justice of the court himself, Justice Tanko resigned on account of ill-health even though he was said to have been ousted from the bench by the powers-that-be.
But before the event of June 27, 2022, the process of appointing justices into the Supreme Court had commenced and was already in top gear.
Specifically, Chief Justice Muhammad (as he then was) had on January 19, 2022 requested stakeholders, including the NBA, to nominate suitable candidates for the said positions.
He had promised the NBA that only six suitably qualified lawyers would be selected from a pool of applicants from five of the country’s geopolitical zones.
Following this, the NBA had nominated 23 lawyers, including seven Senior Advocates of Nigeria (SANs) and two women, for the job.
The CJN’s proposal responded to years of pressure by stakeholders, particularly BOSAN, for its members and distinguished academics to be appointed to the topmost echelon of the nation’s judiciary.
The proposal was not implemented by successive CJNs since the tenure of Justice Muhammadu Uwais who served between 1995 and 2006.
However, after nominations were received, the Federal Judicial Service Commission headed by the out-gone Chief Justice Tanko had released a provisional list of candidates for consideration for the top job of Associate Justice of the Supreme Court.
The list which was sent to the Nigerian Bar Association for scrutiny contained 29 Justices of the Court of Appeal from five geo-political zones.
None of the senior lawyers, including seven Senior Advocates of Nigeria (SANs), that applied for the vacancies at the apex court was on the list.
The stakeholders are expected to prune down the list further for emergence of fit and proper persons to fill the six (now seven) vacancies on the Supreme Court’s maximum 21-man bench.
The shortlist includes five jurists each from the North-Central, North-West, South-South and South-West, while the South-East has a nine-man jurist team.
Apart from the South-East which will get two out of the six slots, and the North-East which is excluded, the other zones will get one slot each on the apex court bench.
Efforts to bring in senior lawyers during Justice Onnoghen’s tenure also failed.
From all indications, the consistent pressure mounted by senior lawyers on the appointing authorities for a radical review of the policy on the appointment of justices into the Supreme Court and the Court of Appeal appears to be borne out of genuine and selfless desire to improve the quality of the judiciary in order to stabilise the nation’s fledgling democracy.
In view of the fact that the 1999 Constitution prescribes appointment rather than promotion of justices to the apex court, it may not be out of place if the new pilot of the judiciary hearkens to the demand of the senior lawyers and appoint the best brains into the apex bench instead of constricting itself by the principle of federal character.