Mode of appointment of judges raises fresh debate

To address the longstanding advocacy for reforms in the mode of appointment of judicial officers by citizens and various organisations, the National Judicial Council (NJC) this year announced new Extant Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria.Under sections 231 (1), 238 (1), 250 (1) […]

To address the longstanding advocacy for reforms in the mode of appointment of judicial officers by citizens and various organisations, the National Judicial Council (NJC) this year announced new Extant Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria.
Under sections 231 (1), 238 (1), 250 (1) of the 1999 constitution, 256 (1), 261 (1) and 266 (1), the appointments of Chief Justices of Nigeria, President of Court of Appeal, Chief Judge of Federal High Court and the Chief Judge FCT High Court, Grand Khadi, Shari’a Court of Appeal, and President Customary Court of Appeal respectively are in the hands of the President of the Federal Republic of Nigeria at the recommendation of the NJC and subject to the confirmation of the Senate.
The constitution also puts the appointment of State High Court Chief Judges in the hands of governors at the recommendation of the NJC subject to the confirmation by the State House of Assembly.
The constitution provides generally that a person shall not be qualified to hold the office of head of the respective courts unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a certain period of time.
In the NJC Guidelines and Procedural Rules for the Appointment Judicial Officers of All Superior Courts of Record in Nigeria, Rule 4 (i) (a) provides for the candidates seeking to be appointed judicial officers must have:  
a) Good character and reputation, diligence  and hard work, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics.
The appointment of judges, which is to be initiated by the Federal or State Judicial Service Committees, also requires that the candidate must have the following criteria:
b) Active, successful practice at the Bar, including satisfactory presentation of cases in court as legal practitioner either in private or as a legal officer in any public service;
c) Satisfactory and consistent display of sound and mature judgment in the office of as a Chief Registrar or Chief Magistrate;
d) Credible record of teaching law, legal research in a reputable university and publication of legal works, and in addition to any or all the above.
In Rule 5, it states that upon compliance with Rules 1-4 of these rules, the Chairman of the Judicial Service Commission/Committee shall advice, or as the case may be, recommend to the National Judicial Council by a memorandum which shall conclude with a clear declaration that the NJC Guidelines and Procedural Rules have been complied with strictly and fully.
Rule 6 further emphasizes that: 1) Every candidate /judge, justice/chief judge/legal practitioner, who has been shortlisted shall undergo interview to be conducted by the NJC to ascertain his or her suitability for the judicial office.
2) The mode of interview shall be determined by the council.
3) The result of the interview shall form a major part of the decision on the candidate’s suitability for the judicial office for which he or she has been interviewed.
4) A candidate who is unsuccessful at the interview shall not be recommended for appointment by the council.
5) A candidate once rejected on the ground stated in Rule 4(4) (ii) shall not be re-presented to the council for at least another two years or any such period as the council may direct.
But some analysts argue that these provisions are not sufficient for the appointment of persons to the sensitive position of a judicial officer. They advocate a more merit-based, competitive and transparent process.
Access2Justice, a human rights organisation said in a statement by Joseph Otteh that the new guidelines are better than the former which “could not safeguard judicial appointments from being politicised, or from being vulnerable to high-profile lobbying, or even from ‘institutional nepotism’.”
He noted that on July 1, 2014 the Nigerian Bar Association (NBA), the United Nations Office on Drugs and Crime (UNODC), Access to Justice supported by the European Union (EU) and the Open Society Initiative for West Africa had in a communiqué at the end of an international judicial reform conference, called for urgent reforms in the judicial appointments system in Nigeria.
Peter Odia, the coordinator of Human Rights and Accountability Initiative (HURAIN) says that despite the new guidelines, everything is still wrong with the mode of appointment, promotion and retirement of judges. He faulted the absence of vacancy advertisements and examinations in a process conducted by reputable external consultants.
“When people are to be recruited as high court judges and magistrates, such positions should be advertised. Let the applicants write exams let the whole process be given to consultants or people of credible character to write and conduct the exams for them and let the best emerge.
“But what we have today is that when you are fiddling through any national daily, you don’t see vacancy for a high court, magistrate, customary, area or Shari’a court judge.
“The whole vacancy advertisement is shrouded in secrecy, nepotism and ‘who-you-know’ syndrome. They give preference to those that have notes from a superior court judge attached to their application. When you have done that they now do what they call shortlisting. No examination is done whatsoever. Selection process will eventually be rounded off with the number of notes attached to their applications.
“The appointments are also based on federal character and quota, because it is enshrined in our constitution for fairness and equality among all the ethnic diversity of Nigeria but not in a sensitive position as a judicial officer. When you do that you cannot possibly get the best of hands available.
“You now come to promotion. As decadent as the civil service is, they write promotion exams. Judges don’t write promotion exams. Once a judge or the CJ retires all the judges down the line get automatic promotion. When you make a comparison to what happens in some African countries, say Kenya, when there is a vacancy, it would be thrown open and qualified persons who want the position write the exam,” he said.
Professor Kevin Nwosu, the Director of Settlement House, who blamed political interference in access to justice and independence of the judiciary, added that the problem is more complex than just the appointment as “regular training and robust welfare package.”
The Human Right Writers Association of Nigeria (HURIWA) through its coordinator, Emmanuel Onwubiko, took the debate a step further by advocating an amendment of the constitution so that “prospective judges go through popular election by voters just as legislatures are elected.”
But the Attorney General and Commissioner for Justice in Abia State, Mr Kalu Umeh, opines that the new guidelines, which included provisions on the character and integrity of would-be judge and an interview to check the individual’s temperament, comportment and knowledge of the law, is an improvement.
“So it is an improvement and we are getting there. You can’t have a perfect system,” he said.