Afe Babalola

Last week, in continuation of my discussion on Independence of the Judiciary I focused on the issue of security of remuneration. As stated earlier, factors which affect and determine Judicial Independence can be classified into two broad headings to wit: factors which ensure the independence of individual Judges and factors which guarantee the independence of the Judiciary itself as an institution.  As I have already discussed the former, I intend to now examine factors affecting the latter the most prominent of which is transparent process of appointment of Judges  

APPOINTMENT OF JUDGES

By the provisions of Section 271(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) the Governor of a State is empowered to appoint Judges into the High Court of a State upon the recommendation of the National Judicial Council (NJC). Such a person must however have been qualified as a Legal Practitioner for a period of not less than ten years. The provisions of the Constitution appear to present the issue of the appointment of Judges to be a straightforward matter. However there exists a large pool of qualified Legal Practitioners from which appointments to the Bench could be made. This therefore entails that a process be put in place to ensure that only the best hands and materials eventually make it to the Bench. In my estimation it is the strength or otherwise of this process that has the most profound effect on the Independence of the Judiciary.

APPOINTMENTS IN DAYS GONE BYE

In the sixties when I began the practice of Law, appointment to the Bench was strictly on merit. In most cases, appointments were by invitations. Judges were always quick to identify Legal Practitioners who possessed sterling qualities suitable for appointment to the Bench. Aside from sound knowledge of the law, integrity and honour marked out and propelled many Judges appointed in those days to the Bench. Indeed one of the foremost, most upright, courageous and incorruptible Judges to grace the Bench in Nigeria, the recently departed Honourable Justice Kayode Eso in his book “The Mystery Gunman” described how he was invited to the Bench. At pages 173-174 of the Book the late Jurist stated as follows:

“Sit down please, I hope you are well?” he inquired.

The Chief Justice was already in his chambers. He had cultivated the habit of getting to court very early, to enable him sit at 9:00am prompt. Except he was ill, and he was not known to have been once, he would be in his chambers by 8:30am at the latest.

“Very well sir,” I answered, still with concealed trepidation.

“How long do you think this case will take?” he asked.

.............................................................................................................. “You had better  finish today”, cut in the Chief Justice, very sharply, smiling rather mischievously. “For I have already recommended your name to the Premier for appointment as an acting judge,” the Chief Justice continued, without waiting for my reaction.

The reply to my recommendation arrived yesterday and the Governor will be ready to swear you in next week. The instrument is already prepared.”

..............................................................................................................

You do not need to be grateful to me. It is your work that has done it. The Judges here have had an eye on you for some time. They report so favourably on your brilliant performance.”

Similarly in 1975, Hon. Justice Oyemade, the Chief Judge of Western State invited me to the bench. However, I politely rejected the offer.

I am certain that most Judges appointed at that time had identical or similar experiences. The advantages of this were obvious. Firstly as stated earlier, it ensured that only the brilliant and of proven integrity were so invited. Judges afterall would be able to distinguish between Lawyers who had a preponderance to offer them bribes or engage in other untoward practices to influence their judgements from those who would meticulously and diligently prosecute the cases of their clients within the confines of the law and the rules of court. Secondly, it ensured that those who eventually honoured such invitations were those who were really interested in making a career on the bench and contributing their quota to national development. In some cases, as it was with Justice Eso, such appointees gave up thriving private practices to take up Judicial appointments. In doing so they found more motivation and inspiration in what they could give to the development of the law from the Bench. 

At the present moment, appointment to the Bench is seen by many as an easy way out from the demands of private law practice. Some aspire to the Bench to enjoy the perquisites of judicial office without giving adequate thought to the demands and responsibilities of the position. Yet it is from this pool of persons that appointments must be made. Perhaps the general downturn in the economy has further made matters worse, but the reality is that no matter the thoroughness that goes into the selection process put in place by the Judicial Service Commissions of the States in conjunction with the National Judicial Council, the margin of error will remain high. 

Furthermore, the fact that appointments are made by the Governor upon the recommendation of the National Judicial Council is one capable of abuse and therefore further eroding the independence of the Judiciary. From the clear wordings of Section 270(2) the appointment is made by the Governor. All that the National Judicial Council does is to recommend based on factors such as vacancies and suitability of candidates. However it has been argued in some quarters, and perhaps not entirely erroneously, that the Governor may decide or exercise discretion not to appoint even after the recommendation of the Council. Whether or not this is correct may one day be finally determined by the courts of law. However the fact of the matter is that some appointing authorities have recently refused to perform the formal act of appointment based upon some facts at their disposal about the proposed appointee. The exercise of this power can be abused in either of two scenarios:

(a) Where the Governor does proceed to make the appointment based upon the recommendation of the Council, the appointee may feel a sense of loyalty to the Governor who appointed him. In a situation in which a Governor serves long enough to appoint a vast majority of Judges in the State Judiciary then the whole judiciary might be inclined to do the bidding of the government one way or the other. This carries with it the risks I identified last week with direct funding of the Judiciary by the Government. Furthermore, the Courts by virtue of Section 6(6)b of the Constitution are amongst others empowered to determine all matters between persons or between or authority and any person. One of the cardinal rules of the principle of natural justice is that a person cannot be a judge in his own cause. However suits are daily filed in courts against governments in which Judges appointed by the said governments are expected to adjudicate. To a large extent most judges acquit themselves well in such circumstances. However the effect of those who do not reverberate more than those who do.  

(b) Where the Governor fails or refuses to appoint, even for the best of reasons, the rejected appointee will often be left with a feeling, which may be shared by some members of the public that he was so rejected for other than meritorious reasons. This will not do the image of the judiciary any good. The message might inadvertently be passed that those who were appointed were so appointed due only to their willingness to do the bidding of Government.  

To be continued...

AARE AFE BABALOLA, OFR, CON, SAN, LL.D, D.Litt