Where should CJN come from?

•Bar, says group • SANs: No, maintain status quo The Chief Justice of Nigeria (CJN) is the head of the Judiciary. Over the years, the most senior Justice of the Supreme Court (JSC) is usually appointed as the CJN in a tradition of succession. But, a group, the United Action for Change (UAC), consisting of lawyers and other professionals, has urged President Muhammadu Buhari to consider appointing a CJN from outside the Supreme Court. According to the group, a CJN appointed from outside the Supreme Court would bring radical ideas that would transform the judiciary and add vibrancy to the apex court. The group believes retaining the tradition of appointing only Supreme Court justices as CJN would perpetuate the same ways of doing things. Someone with fresh ideas, who is not part of a conservative and secretive assemblage that the Supreme Court justices are, is what the judiciary needs, they argue. Precedents Those pushing for the appointment a CJN from the Bar cite two instances. One was the late Justice Taslim Elias, who served as CJN from 1972 to 1975. He first served as Attorney-General and Minister of Justice from 1960. Following his dismissal in the January 1966 coup d’etat, he was appointed a professor and dean, Faculty of Law at the University of Lagos (UNILAG). Later in 1966, he was re-appointed Attorney-General, a position he combined with his post at UNILAG until 1972 when he was appointed CJN by Gen Yakubu Gowon. Another example was the late Justice Augustine Nnamani who was appointed on August 15, 1979 from his position as Attorney-General and Minister of Justice (1976-1979) by former Head of State General Olusegun Obasanjo. Analysts say those two were exceptional cases. What the law says Those who argue that the CJN must not be appointed from the Supreme Court point to the Constitutional requirement. Section 231 (1) and (3) of the 1999 Constitution says: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate. “A person shall not be qualified to hold the office of Chief Justice of Nigeria or 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.” The Constitution, however, adds that the President must appoint the most senior justice of the Supreme Court to act for three months where the office becomes vacant or the substantive CJN is unable to function. Sub-section 4 says: “If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.” Demerits of proposal Those opposed to the appointment of a CJN from the Bar believe it will do more harm to the judiciary than good. They highlight the following demerits: Lack of experience on the Bench Opponents of the proposal believe that a CJN appointed from the Bar to head the judiciary would come with no judicial experience. To the opponents, it takes an experienced justice to supervise and earn the respect of Supreme Court justices who have a wealth of experience acquired over several years. Former CJN Justice Mohammed Uwais had said: “It was during my time as CJN that we said no, Senior Advocates of Nigeria (SANs) who want to come to the Bench should start from the level of the High Court or at best at the level of the Court of Appeal. That was the policy when I was a member of the National Judicial Council (NJC), and I still remain with that view.” Integrity question Although lawyers are subject to disciplinary measures, there is a limit to which their private dealings are monitored or scrutinised, unlike judges. Justice Uwais said: “If you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where if you were a corrupt person, you would have been discovered. “From your judgments also, the Court of Appeal would have known how good you are if you are in the High Court. But if you are a legal practitioner, you haven’t written any judgment. So, there is no way you can be assessed in that respect.” Bad blood/lobbying/cronyism Opponents believe appointing a CJN from the Bar would lead to a strained working relationship between the justices and the CJN. They may not be wholly subject to him, and may see the CJN as an outsider, thereby creating bad blood, camps and divisions. In short, the justices will not respect their head. According to analysts, in the long term, appointing a CJN could lead to lobbying and would become a subject of zoning arrangements as different regions would insist it is their turn. In time, only those with political connections or party faithful would be appointed. Appointments could become politicised According to opponents, the appointment of CJN could become politicised if the current practice of succession by seniority is jettisoned. Activist-lawyer Festus Keyamo said: “This seamless, apolitical and non-controversial mode of succession at the Supreme Court over the years, especially since the civilian era, has produced a Supreme Court that has engendered respectability and dignity. It has also emerged as a rancour-free institution. “In this era of deeply divided political interests, any attempt to introduce politics into the appointment of the Chief Justice of Nigeria would inevitably introduce deep divisions and rancour in the Supreme Court. It would also compromise the independence and integrity of the Supreme Court.” SANs reject proposal A Senior Advocate of Nigeria (SAN), Ahmed Raji, urged President Buhari to reject the suggestion to appoint a CJN from the Bar. “I am unable to agree that the next CJN should come from the Bar. The CJN is the highest judicial officer in the country. The judicial line and bar line are different in many ways. How can you make a person who has never written a ruling the highest judicial officer? We should tread softly! “And are we taking the cooperation of the members of the court for granted? Or are we replacing all of them with bar men? I don’t know what informed the proposition but I am convinced there are better options if we can think deeper and reflect wisely,” Raji said. Another SAN, Sylva Ogwemoh, noted that the Supreme Court is the last hope of all those who approach the courts for resolution of their disputes and should be devoid of politics and politicians under any guise. He said: “Over the years, there has been a consistent pattern of appointing the most senior Justice of the Supreme Court as the Chief Justice of Nigeria upon a recommendation made to the President by the National Judicial Council with a final confirmation by the Senate. “It is my humble view that this pattern be allowed to continue where there are no compelling and proven cases of ill health or questionable integrity. “Following this age old tradition would also allow a Justice of the Supreme Court who is the most senior in rank and who has worked in the various courts up to the Supreme Court to assume the office and put to use the vast experience acquired over the years. “I concede that we have had two instances where appointments were made from outside the Supreme Court, but these appointments were made by the military in exceptional circumstances. We have not had a repeat since the institution of our present democracy. “The present justices of the Supreme Court consist of men and women of proven integrity and the best brains in the legal profession. I do not see any reason for changing the tradition of appointing the most Senior Justice as the Chief Justice of Nigeria.” Ogwemoh said appointing a CJN from the Bar would be counter-productive and should be rejected. “Any attempt to change this tradition would create chaos and anarchy and lead to a situation where politicians will assume control of the very revered Supreme Court. “Introducing such a system of appointment would discourage hard work and create bad blood among Justices of the Supreme Court and this will not be good for our judiciary and the entire legal system. “Further, appointing a CJN from outside the Supreme Court will definitely also lead to intense lobbying for the position in future, and this will be counterproductive and lead to a total collapse of the entire judicial system. “This is because such a system will encourage appointment of cronies and ‘most favoured persons’ with political connections and affiliations as CJN. This is obviously not what we want for the growth and desired changes in the judiciary,” Ogwemoh said. To Abiodun Owonikoko (SAN), the constitutional requirement that an appointment must be made based on NJC’s recommendation cannot be wished away. According him, while it is not unprecedented to cast the net wide beyond serving Justices in compiling list of potential nominees, it is wrong for “outside groups” to dictate the pool from which the President must make a selection. “A happy balance which reflects broad consensus and addresses the challenges of the present era for a more proactive and progressive apex bench uninhibited by inbreeding of serving members is to be preferred. “It will afford the President greater deliberative leverage in exercise of his exclusive right to make the final appointment upon recommendation of the NJC. “To dictate a choice or discriminate against a pool contemplated by the constitution as traditional or preferred constituency is to render the filtering and quality control entrenched in the process redundant,” said Owonikoko. ‘Why hierarchical appointment should be retained’ Keyamo, in a June 8 letter to the President, which he also copied Senate President and the NJC, said appointing a CJN from the Bar would likely be preceded by intense lobbying and recruitment of politicians into the scheme. “Once appointed, such a CJN will have automatic reciprocal loyalty to his benefactors and appointer, thereby opening up such a revered office as that of the CJN to political manipulation. We can then safely say goodbye to an independent Supreme Court and, by implication, our budding democracy,” he said. Keyamo argued that as the years roll by, judges and justices shed their social ties, unlike lawyers who have entrenched interests to protect. “One other advantage of rising through the judicial hierarchy to the Supreme Court is that the very many attributes of a judicial officer become evident and tested as the progression takes place. These are the attributes of productivity, hard work, patience, integrity and sagacity. “There is no greater interview for an aspiring Justice of the Supreme Court than to look into his records at the lower judicial level and see the display of these attributes mentioned above. But there is hardly any trusted yardstick to test these attributes in a member of the Bar other than perception,” he said. Keyamo said justices who rise through the judicial ladder are also known to live a spartan lifestyle, having been used to earning salaries and other allowances over the years. On the hand, Successful lawyers, he said, are used to earning fat fees from big briefs. “How easy would it then be for a very successful lawyer appointed straight to the Supreme Court or as CJN to adjust to earning a relatively meagre salary and adjusting to this spartan lifestyle?” Keyamo said judges also aspire to becoming CJN through hard work. Appointing an outsider, he said, could kill morale. “It is also a fact that productivity is encouraged at the Court of Appeal and lower courts because the justices and judges at those levels aspire to move up the judicial ladder. They are encouraged to do this because the level of their productivity is normally used as criteria to elevate them. “If this is now jettisoned, it would dampen their spirits and enthusiasm and would invariably lead to a drop in hard work and productivity at those levels. Everyone would then resort to politics, rather than hard work, to climb the judicial ladder,” he said. The activist-lawyer believes Supreme Court justices are men of integrity and have manifested “vibrancy” in their judgments in recent times. “Additionally, even if a member of the Bar to be appointed directly as CJN has tremendous integrity, so long as the process of appointment is mired in politics, it diminishes that integrity and brings him under the apron strings of the government of the day. “And that, really, is what these proponents of the new system seek to achieve. It is just a brazen attempt by politicians to invade the Supreme Court and take firm control of its leadership. This is totally unacceptable,” Keyamo said. He urged senior members of the Bar to speak up and reject any move to whittle down the judiciary’s authority by bringing politics into it. “Any attempt to pander to this clamour would create a warped system where a total stranger and outsider would come and exercise headship over the Justices of the Supreme Court. That would be totally unworkable. It will engender rebellion, dissent and lead to a divided house. We can then say goodbye to an independent Supreme Court. And we can then also say goodbye to democracy. “The only sanctuary left for the politicians to invade is the Supreme Court. We must all fight tooth and nail to guide and guard it jealously. There is more to this clamour than meets the eyes; there is certainly an ulterior motive in this call,” he said. Needed reform Rather than appointing a CJN from the Bar, legal experts believe an overhaul of the system is needed. A professor of law, Fidelis Oditah (SAN, QC), believes there is no obvious reason to appoint a CJN from the Bar. He, however, said the process of appointing Supreme Court justices should be reviewed. “There is no apparant reason for such a drastic step. “However, there is probably more substance to the criticism that the recruitment base for Supreme Court judges is harmfully too narrow if confined to the Court of Appeal, as is the current practice. “These issues need to be seen in the wider context of the urgent need to review the recruitment of judges at all levels of decision-making,” he said. The fact that the CJN also heads the NJC has been criticised. Former Court of Appeal President, Justice Isa Ayo Salami had recommended splitting the two positions to avoid abuse. He said: “It is only the NJC that has a serving head of the institution as its head and who has amply demonstrated how the arrangement could be thoroughly abused. “In the circumstance, serious consideration should be given to separating the two positions as is the case with the police and the civil service. “The Police Service Commission and the Civil Service Commission are not headed by the heads of those institutions. In other words, neither the Inspector General of Police nor the Head of Service is the head or chairman of the Police Service Commission or Civil Service Commission. “Such Chairman, in the event of an infraction on his part, can easily be eased out of office; but, the same is not the case with a Chief Justice who fouls his seat while doubling as Chairman of the Council. “The patronage the non-statutory members derive from him, such as appointment into the council and extension of their tenure makes them vulnerable and feel obliged to him and not to the body they are appointed to serve and are invariably prepared to kowtow,” Justice Salami said. A constitutional lawyer, Ike Ofuokwu, said the best from the Supreme Court should be appointed CJN, not necessarily the most senior. According to him, some of the best minds ever to grace the Supreme Court, such as the late Justice Kayode Eso and the late Justice Chukwudifu Oputa, never became CJN’s because of the strict adherence to the practice of hierarchical appointment. To him, there is nothing wrong in appointing the best from among Supreme Court justices rather than sticking with the seniority principle. “That way, someone like Eso should have been appointed CJN,” he said. By JOSEPH JIBUEZE ]]>