The judicial scene

When former President Olusegun Obasanjo took the oath of office in 1999 and vowed to protect and uphold the Constitution of the Federal Republic of Nigeria, he did so by faith.

He had not seen the Constitution. It was a closely guarded state secret.

Outside the narrow circle of those the departing regime of General Abdulsalami Abubakar had enlisted to write the Constitution, few had seen the draft in its entirety. Among those who fashioned it, not many could have expounded it with high confidence. After they had turned in their draft, the military vetted it to give primacy to their own agenda, manifest and latent.

The result was a document that, according to the late and much lamented legal titan Gani Fawehinmi (SAN), lacked internal consistency, was riddled with errors, chockfull of lacunae, and was, withal, not unlike a minefield.

The death in office of President Umaru Yar’Adua threw up a thorny succession problem that pointed up more poignantly than any other issue the gaps in the Constitution. It was remedied by recourse to a deus ex machina, the so-called doctrine of necessity.

Even the 1979 Constitution, the preparation of which was much more elaborate, and was the subject of spirited national debate, was not without its own share of problems, especially in the time of the military president, General Ibrahim Babangida.

During debate on some crucial issue, you would confidently cite some provision of the Constitution that had not been suspended to back your submission. It would turn out that there was no such clause in the document.

Or you would depose with the utmost confidence that the Constitution categorically prohibited a certain course of action, and it would turn out that the document was completely silent on the matter.

It got to a point that a leading newspaper wondered in a major editorial whether Nigeria was not being governed with a fake Constitution. That was no idle question, for at that time, Nigeria was awash in fakery.

I was led into these reminiscences by the on-going debate on the future of Walter Onneghen, Justice of the Supreme Court, who was recommended by the Judicial Service Commission (JSC) for appointment as the nation’s chief justice, a post he has held in an acting capacity since the retirement of Justice Mahmud Mohammed.

Some people learned in the law, led by Wole Olanipekun (SAN) have argued that, on the basis of the JSC’s recommendation, President Muhammadu Buhari should have forwarded Justice Onneghen’s name to the Senate for confirmation. The Constitution, they submit, citing its relevant provisions,leaves Buhari with no other course of action.

The recommendation, it should be noted, is based strictly on seniority. The justice who has served longest on the Supreme Court gets the JSC’s imprimatur.

Other persons no less learned in the law, led by Professor Itse Sagay (SAN) contend that the Constitution cannot reduce the President to a mere rubberstamp and that he is under no obligation to send Justice Onnoghen’s name to the Senate for confirmation. On the contrary, they assert, the President is at liberty to reject the recommendation and ask the JSC to submit another name for consideration, more so since reputation, integrity, character, skill, and productivity hardly figure in the JSC’s deliberations.

Seniority and seniority alone, they say, is not a sufficient consideration and has led at least in two instances to the appointment of misfits as chief justice of Nigeria, and that the field should be open to qualified persons outside the judiciary.

Then there are those who, actuated by the same ethnic agenda they say lies behind the delay in confirming Justice Onnoghen, are warning, sometimes subtly and other times starkly, that there would be consequence if “their son” was not appointed to the position.

Translation: They would cut off the oil.

At this writing, Acting President Yemi Osinbajo is reported to have forwarded Justice Onneghen’s name to the Senate for confirmation, just before the expiry of the three months the Constitution allows him to act as the nation’s chief justice. That should settle the raging debate on the matter. But since ours is a litigious society, it is not inconceivable that some individual on a legal fishing expedition might seek a perpetual injunction restraining the Senate from deliberating on the matter.

In whatever case, debate will continue as to whether the most senior justice of the Supreme Court, barring a finding of moral turpitude or other disabling factor, should automatically succeed to the top job whenever a vacancy occurs, or whether the position should be open to outstanding practising lawyers in good standing as well.

I incline to the latter view. I support casting the judicial net much wider in search of qualified persons, persuaded that it is more likely to yield better results. There is much to say for the continuity and stability that the principle of automatic succession is said to guarantee. But there is even much more to be said against the complacency it usually fosters, and the in-breeding that undergirds it.

Persons who enter the judiciary as magistrates and rise through the ranks to chief justice are more likely than not to have developed a tunnel vision and a bureaucratic mindset that constricts rather than expand the very concept of law. One thinks here of the judge in W.H. Auden’s famous poem, “Law, like Love.”

Law, says the judge as he looks down his nose,Speaking clearly and most severely, Law is as I’ve told you before, Law is as you know I suppose,Law is but let me explain it once more, Law is The Law.

A caricature, to be sure, but the point is clear. Narrow legalism. No nuance. Law disembodied of spirit. The letter of the law is what counts. We have seen example after example of this kind of jurisprudence.

It is well documented that persons who belong in the same organisation tend to speak the same language and to think in the same way. Those at the top tend to recruit people like themselves. These tendencies tend to limit growth and development. That is why many organisations strive for a diverse workforce..

For the same reason, if you have earned two degrees from some of the leading American universities and would like to proceed to a doctorate, you will be advised to head elsewhere, in your own best interest. Go learn from a different set of professors with different interests and orientations and prejudices. Go seek new insights. Go cultivate new friends.

I commend this model, pardon my digression, to our universities, and to those preparing for academic careers.

To return to appointments to the High Bench: It is one thing to open the door to attorneys who have distinguished themselves in private practice or in legal scholarship and can thus be expected to bring a sociological imagination to bear on the administration of justice.

Former President Shehu Shagairi, whom no one has ever accused of harbouring a progressive outlook, took that tack when he offered the pre-eminent legal scholar Professor Ben Nwabueze an appointment as a justice of the Supreme Court in 1979. Nwabueze declined, for personal reasons.

Also in keeping with this thinking, the Nigeria Bar Association has recently nominated some distinguished senior attorneys and academics to be considered for appointment to the High Bench. The proposal is commendable, and I suspect that many a legal scholar will welcome an invitation to serve.

But will legal practitioners who can reap fortunes beyond their wildest dreams through litigating election disputes seek, much less accept, positions on the High Bench?