Filling Supreme Court Vacancies

Editors Note; Originally published in Editorial

Supreme court justices must be ‘fit and proper’ persons

Last Thursday’s valedictory ceremony for retired Justice Abdu Aboki has raised several pertinent questions about the apex court in Nigeria. With Aboki’s exit after serving only two years, the number of Justices on the Supreme Court bench dropped to 13. Against the background that the 1999 Constitution (as amended) prescribes 21 Justices as the full complement of the court’s bench, the requisite number now falls short by eight with dire implications. “A single drop in the number of justices here brings about a sudden increase in our workload,” lamented the acting Chief Justice of Nigeria (CJN), Olukayode Ariwoola.

However, beyond the issue of depletion in number, there are other concerns. Initiating the process for appointments into the court is the prerogative of the National Judicial Commission (NJC). But many have also observed that the process is flawed ab initio. The first consideration is geopolitics, which is about where such nominees come from. After that comes the practice of elevating only justices of the Court of Appeal to the Supreme Court. The argument has always been that senior lawyers with pedigree and respected academics should be appointed to the Supreme Court to make it more virile. Furthermore, this may be the time to restructure the NJC in such a manner that removes it from being an appendage of the CJN.

The “appointment process appears to have been designed and operated to exclude good and competent lawyers” from being appointed Justices of appellate courts, according to the Body of Senior Advocates of Nigeria (BOSAN). This is despite that to be eligible, an applicant must be a legal practitioner of not less than 15 years. The same applies to whoever is to be appointed as the Chief Justice of Nigeria. Section 231(3) of the Nigerian constitution states: “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 fifteen years.”

Such clear and unambiguous constitutional provision has been subverted by the NJC that routinely recommends only serving Justices of the Court of Appeal for appointment as Justices of the Supreme Court. Since those so recommended are invariably senior Justices of the Court of Appeal, they usually spend about five years or less at the apex court. A case in point is Justice Abdu Aboki who retired on 15th September 2022 after serving in the Supreme Court for barely two years.

While the NJC must ensure that the apex court is fully constituted with 21 Justices in line with the provision of the Constitution, we suggest a quick return to the glorious era of the court when it comprised of vibrant judges appointed from the high court and court of appeal as well as law lecturers and lawyers in legal practice. The apex court is the ultimate determinant of questions of justice in the land. Beyond it, the next level of appeal is to God! Therefore, the right of every citizen to justice, the entire principle of rule of law and equality before the law which are fundamental to the existence of a democratic order reside in the apex court. Minimally then, those who are appointed must inspire in the citizenry and the international community a certain confidence derivable from the meritocratic rigour of their selection process.

When the list is finally submitted to the Senate, the lawmakers must also recognise the enormity of their responsibility especially when it comes to the confirmation hearings. The object of these hearings is first to reassure the public that persons nominated to become Supreme Court Justices meet the criterion of ‘fit and proper persons’. In addition, such nominees must possess the appropriate requisite qualifications in a proven manner. Reducing such hearings to the banality of ‘take a bow’ or asking questions that require no rigour is a gross disservice to the administration of justice in Nigeria.