Nigeria: Appointment of Justice of the Supreme Court - a Review of the President's Powers

1 December 2020

This article by Tolu Aderemi examines the reasons for the delays by the Supreme Court in the dispensation of Justices, citing an insufficient number of JSCs as one of the main culprits for this. That the role of the President is simply to forward the names of the NJC nominees to the Senate for confirmation; and that the Constitution does not give the President any powers to exercise discretion in this regard, by rejecting or refusing to forward the names of nominees

Introduction

Afundamental principle underlying Nigeria's constitutional process, is the independence of the judiciary. This embodies the entire philosophy of constitutional democracy which is more emphasised by the preamble to the Constitution which reads in part, "promoting the good government and welfare of all persons ... on the principles of Equality, Freedom and Justice". In a country characterised by socio-political and economic underdevelopment, a workable contrivance (separation of powers) which insulates the judiciary from undue interference from the other two arms of government, particularly in the appointment of Judicial Officers, must therefore, be desirable.

The Supreme Court and Delays

The Nigerian Supreme Court, is the highest court in the judicial hierarchy. It is clothed with original and appellate jurisdiction as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Decisions made therein are final and cannot be appealed against, unless where there are omissions in its judgement or clerical errors, which is not considered an appeal. Judicial appointments to the Supreme Court are therefore, an important part of the administration of civil and criminal justice system in Nigeria. Judicial Officers also consider appointments to this Court as the peak of their careers.

As a policy court and court of last instance, the Nigerian Supreme Court has been criticised for the wanton delay in dispensing justice. For instance, the decision in an appeal may span a period of two to four years, from the date of filing such appeal to determination. This is, obviously not because the Justices are lazy, but because the Court is overwhelmed with far more cases its serving Justices can accommodate. Put simply, the Supreme Court currently runs with less than its constitutionally prescribed number of Justices, and this has been the state of things for many years.

The Constitution and the Number of Justices

Section 230(2) of the Constitution provides that "the Supreme Court of Nigeria shall consist of -

(a) the Chief Justice of Nigeria; and

(b) such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly."

It means therefore that the Apex Court should ordinarily have 22 (some say 21) Justices of the Court, including the Chief Justice of Nigeria (CJN). I cannot recall when last the Court could boast of this number of sitting Justices, at any one time. This must necessarily impinge on the speed of delivery and administration of civil and criminal justice, in Nigeria.

The undue delay in appointments to the Supreme Court and its untold effect on the administration of justice in Nigeria has therefore, called for a review of Section 231(1) and (2) of the Constitution. The section provides that such appointments shall be made by the President on the recommendation of the National Judicial Council (NJC), upon confirmation of such appointment by Senate.

A more careful review of this section makes it unclear what it seeks to achieve. Or put it in another way, the Constitution makes it clear that in its bid to enshrine the doctrine of separation of powers, the judiciary is at the mercy of a 'cooperative or uncooperative Executive and Legislature'. No one is appointed to the Supreme Court, unless the President says so.

The Role of the President

Sometime in October 2019, the NJC (the highest decision making organ of the Judiciary) recommended their Lordships Adamu Jauro (North-East), Emmanuel Agim (South-South), C. Oseji (South-South) and Helen M. Ogunwumiju (South-West) for appointment to the Supreme Court. Eight months later, the President refused to consider this recommendation, nor forward their names to the Senate for confirmation. Were the President to have done so, this would have made the number of Justices of the Supreme Court, sixteen. This is still below the twenty-two constitutionally approved number. The retirement age of a Justice of the Apex Court, is seventy years old.

It is important to note that, the President has no other discretion to exercise upon recommendation to him of a candidate for the position of JSC, than the appointment of such person. The President's power to appoint, is circumscribed by the recommendation made to him by the NJC. In simple terms, NJC recommends, President appoints, and Senate confirms. The case of Hon Justice Dongbam-Mensem, who was appointed in an acting capacity on March 5, 2020 following the retirement of Hon. Justice Zainab Bulkachuwa, and on the recommendation of the NJC, in compliance with the provisions of Section 238(4) and (5) of the 1999 Constitution (as amended) is apposite. This procedure is therefore, not alien to the Executive.

The expectation, and indeed, the standard of the NJC (particularly on the appointment of Justices of the Supreme Court) has always been to thoroughly screen candidates through a transparent process of interviews by the Federal Judicial Service Commission, which then reports to the NJC on its findings with regard to every candidate it interviews and screens. The NJC then forwards the name of successful candidates to the President, for appointment.

Unfortunately, the Constitution did not contemplate a situation where names of nominees are forwarded to the President and he fails to act, and so did not make accordant provisions. The drafters of the Constitution did not contemplate that a President would defy the recommendations of the NJC, and refuse to appoint candidates recommended to him. This is a flaw in the Constitution, and an amendment which should override such powers is hereby proposed.

Put simply, where a President fails to make an appointment pursuant to a recommendation by the NJC within a certain period, the law should grant the NJC the liberty to submit such name(s) to Senate for confirmation by simple majority or two-thirds majority. This will deem the President's approval, as having been sought.

Conclusion

The administration of justice in Nigeria has been adversely affected by the constant interference of political interests, in the appointment of Judicial Officers. There is therefore, the urgent need to ingeniously think of ways of deepening the administration of justice in Nigeria, and eradicating all inhibiting factors thereto.

The President has to do the right thing, and appoint, with dispatch, the candidates recommended to him by the NJC.

Tolu Aderemi, Legal Practitioner, Partner, Perchstone & Graeys LP, Lagos

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