Twenty-five persons have been shortlisted for appointment as Federal High Court judges. Did the process comply with the rules? No, says rights group and judiciary watchdog, Access to Justice. JOSEPH JIBUEZE writes.
The National Judicial Council (NJC) is violating its rules in the appointment of 25 new judges of the Federal High Court, a rights group the Access to Justice (A2J) has alleged.
It said the criteria being used do not comply with the Revised National Judicial Council Guidelines and Procedural Rules 2014.
The group said the breaches are considerable, and that if the current recruitment is allowed to proceed, it would seriously undermine the integrity of the reforms made in the Revised Guidelines.
The Guidelines seek to ensure openness, competitiveness, merit and transparency in recruitment processes as well as safeguard judicial appointments from being lobbied and politicised.
Among others, it provides for call for expression of interest by suitable candidates by way of advertorial placed on the website of state judicial service commission, notice boards of the courts and of Nigeria Bar Association (NBA) branches.
Guideline observed in breach?
“This rule was clearly not followed in the current recruitment process. The only publication made on the existing vacancies was an advertisement placed on the website of the Federal High Court. Unfortunately, our investigation reveals that no such call for expression of interest by suitable candidates was made.
“All that was placed on the website of the Federal High Court was a copy of the letter written to judges, heads of courts, Attorney-General of the Federation and the NBA president inviting them to make recommendations of suitable persons for consideration,” A2J said.
In addition, the group, in a statement by its Executive Director Joseph Otteh, said there were no appropriate parameters used in shortlisting candidates who were recommended to the Federal Judicial Service Commission (FJSC) and the NJC.
Following the ongoing recruitment exercise, A2J made a Freedom of Information (FOI) request to the Chief Justice of Nigeria (CJN) Justice Mahmud Mohammed, who is FJSC chairman.
It also sought information from the Chief Judge of the Federal High Court, Justice Ibrahim Auta, on the criteria adopted to fill the judicial vacancies. The letters were replied on August 27, and September 8.
In view of the letters received, the group drew attention to what it called significant breaches of the Revised Guidelines.
“The breaches of the said Guidelines are considerable, and if the current recruitment is allowed to proceed, it would seriously undermine the integrity of the reforms made in the Revised Guidelines.
“For this reason, Access to Justice urges the NJC to hold the process leading to the selection and nomination of candidates for the existing vacancies in the Federal High Court (FHC) to be in manifest and substantial contravention of the Revised Guidelines and is irredeemably flawed; and to direct that the process be begun afresh.
“We also urge the NJC to insist that any fresh exercise must adhere with, and be in compliance with the Revised Guidelines 2014,” A2J said.
‘How Guidelines were violated’
A2J said the current Federal High Court recruitment has been done in ways that conflict with the core goals of the Revised Guidelines , especially in the aspect of transparency and accessibility
Rules 3 of the Revised Guidelines provides that the Judicial Service Commission shall call expression of interest by suitable candidates by way of public notice placed on the website of the Judicial Service Commission / Committee concerned, notice boards of the courts and notice boards of Nigeria Bar Association branches.
Rule 3 mandates the publication of a Public Notice of existing judicial vacancies calling for an expression of interest by suitable candidates in at least three publicly accessible forums.
According to the group, the word “shall” makes it mandatory that a call/announcement be made, in the stipulated forms, for interested candidates to express interest to fill the vacant positions.
Rule 3(3) states that such a call for expression of interest/nomination must bear a closing date.
A2J said: “This rule was clearly not followed in the current recruitment process.”
FJSC’s position faulted
According to letter signed by FJSC Secretary, Mrs. B.A. Bashir, the only publication made on the existing vacancies was an advertisement placed on the website of the Federal High Court.
But A2J said its investigation reveals that no such call for expression of interest by suitable candidates was made.
It said all that was placed on the website of the Federal High Court was a copy of the letter written to judges, heads of courts, AGF and NBA president inviting them to make recommendations of suitable persons for consideration.
In his response to the FOI request, the Chief Judge of the Federal High Court, Justice Ibrahim Auta, “respectfully begged the question,” according to A2J.
It sought to know details of the modes and avenues used in publicising/advertising the available vacancies.
“His response was: ‘That the mode of and avenues in publicizsing the vacancies are as stated in the Rules 3(1)(a)(i)(ii)(iii) of the 2014 Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria.’”
However, the group said the only notice it is aware of was published at the court’s instance – the letter posted on its website addressed to specific judicial officers and the AGF asking for recommendation of ‘… any fit and proper legal practitioner in Nigeria for consideration for appointment as judges of the Federal High Court.’
‘Guidelines not complied with’
The information posted on the court’s website, A2J said, is not form or the substance of what the Guidelnes requires.
To the group, such procedure negates the goals of the NJC Revised Guidelines as information of the existing vacancies was not published in the required forums, neither was information of the vacancies offered to the public or interested suitable persons.
Merit safeguards gettisoned
On merit-based selection safeguards, the group said there were no appropriate parameters used in shortlisting candidates who were recommended to the FJSC and the NJC.
In the FOI request, A2J had requested for details of the criteria adopted in drawing up the provisional shortlist of candidates.
It had asked: “Was there a panel or committee set up to scrutinise the applications? If yes, please provide us with the names of persons constituting the panel/committee, its head and its terms of reference.
“If no, provide information on how the selected candidates were shortlisted, by whom they were shortlisted and the parameters of selection.”
In his response, Justice Auta said the professional status of those who recommended the candidates was an initial consideration, followed by the quality of judgments/rulings the candidates delivered, the available vacancy for the state and Federal Character.
However, Rule 3(4) of the Revised Guidelines provide: Soon after the closing date for the receipt of applications and or nominations, the Chairman of the Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits consisting of not less than twice the number of Judicial Officers intended to be appointed at the particular time and circulate the provisional shortlist together with a request for comments on the suitability or otherwise of any of the short listed candidates…
According to A2J, the Rule provides that the provisional shortlist shall be made “on the merits”, which means it must be “based on the qualities of someone or something, or on the facts of a situation”.
To the group, most of the considerations that influenced the shortlist, as confirmed by the CJ, miss the mark.
“Selection on the merits would naturally look at the strengths or weaknesses of the candidates without reference to external factors, such as federal character even though that latter factor may come in subsequently,” it said.
Factors for consideration
Rule 3 (6) of the Guidelines defines factors to take into consideration in shortlisting candidates.
It says: In carrying out the provisional short listing exercise, the Chairman of the Judicial Service Commission /Committee shall take into consideration as much as possible, (i) professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of six contested cases in the last S years; (ii) sound knowledge of law, (iii) seniority at the Bar and or the Bench, (iv) federal character or geographical spread and where necessary and possible, without compromising the independence of the judiciary or allowing politics to permeate or influence the appointment.
From Justice Auta’s response, it was clear that these considerations were largely excluded from the process.
The CJ said the ‘quality of judgment/ruling’ was a consideration for the shortlisting.
However, Rule 3 (6)(i) says the quality of judgments and demonstration of judicial skills is only relevant in the case of appointment of judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court’.
“Therefore, this was not a legitimate consideration in the case of appointments to the Federal High Court,” A2J said.
The group said in relation to the process followed in filling the vacancies, there has been an interlocking sequence of putting the wrong foot forward in each of the required steps established by the Revised Guidelines.
It said the process from inception was marred by irregularities and breaches, which it said began with limiting the range of people who could participate in the recruitment.
It also denied otherwise eligible and suitable people the chance to be considered for the Bench, A2J added.
“The process adopted for the appointment is now so fundamentally flawed that it is difficult to build anything credible or legitimate upon this sort of foundation or correct the errors at any other stage of the process. Many Nigerians will be disappointed and disillusioned if this process is allowed to produce the next batch of judges of the Federal High Court,” the group said.
Threat of ‘mischief’ being perpetuated
A2J said it is deeply concerned that the procedure for filling the vacancies will perpetuate the ‘mischief’ sought to be addressed by the revised NJC guidelines if the procedure adopted is allowed to stand.
“Access to Justice also observes that apart from the power to officially communicate the existence of court vacancies to the Chairman of the NJC and FJSC pursuant to Rule 2(2)(a) of the Revised Guidelines, the Chief Judge of the FHC does not have, within the general context of the Revised Guidelines, the powers which he has irregularly exercised in the course of this recruitment exercise.
“The power to write, ‘… in the case of appointment to a Federal Court, to the President, Nigerian Bar Association ; or, in the case of appointment to a State Court, to the Chairman of every Branch of the Nigerian Bar Association in the State concerned, asking for nomination of suitable candidates for the proposed judicial appointment and requesting that he/she brings to the notice of suitable candidates the call for expression of interest by each of them’ belongs to ‘…the relevant Judicial Service Commission/Committee’ according to the terms of Rule 3(1)(a) and 3(1)(a)(iii). It was therefore wrong of the Chief Judge of the FHC, by himself, to exercise the power.”
NJC urged to reject list
A2J urged the NJC to adjudge the process to fill the vacancies as fundamentally flawed on the grounds of substantial non-compliance with or breach of its Guidelines.
It said: “The process adopted was not transparent, open, accessible and fair and denied a level playing field to all prospective and qualified candidates.
“They were also not merit-based. We urge the NJC to reject the list forwarded by the Federal Judicial Service Commission.
“By so doing, the NJC will be sending a strong signal to all Judicial Service Commissions and heads of court that it will not return to the ‘business as usual’ status quo in relation to judicial appointments and that it will respect its own mandatory policies and rules governing the appointment of judges in Nigeria.”