Tag: appointment

A lawyer, Chief Kunle Uthman, examines the new guidelines for the appointment of judges and points out where he thinks the National Judicial Council (NJC) got it wrong.

In the recent past, the Guidelines and Procedure of Appointment of Judges of the state High Courts have been widely criticised, lampooned by stakeholders and critics as fraught with irregularities, not merit driven and allegedly subject to influence of the political class, traditional rulers, members of the National Judicial Council (NJC), and opportunities for former and serving Judges, and indeed some very senior lawyers to ingratiate their children in the system. This trend has become extremely worrisome because in truth there are several instances, where children of former judges and prominent lawyers have been appointed.

The high point of these criticisms was the seminar organised by the United Nations Office of Drugs and Crimes (UNODC), Access to Justice and the Nigerian Bar Association for Stakeholders to review the process and make recommendations, with a view to improve the process of appointment of Judges to the State High Courts and evolve a more holistic approach, devoid of the influences hereinabove stated.

Mr. Joseph Otteh, Executive Director of Access To Justice in an article on the 2014 Revised Guidelines stated: ‘’Where the procedures of appointment are weak, flawed or vulnerable, the outcomes of the process will likely mirror those frailties and faults; indeed, some persons who get into judicial office through this means may just be accidents waiting to happen.’’.

In these circumstances, the 2014 Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria was a reactionary response to the deluge and barrage of criticisms and an effort to evolve a foolproof procedure in the appointment process. However, a perusal of the document compared with the January, 2004 Guidelines shows that the draftsmen ran foul of constitutional provisions and some of the rules are unconstitutional and in excess of the powers of the National Judicial Council, which is itself a creation of the 1999 Constitution.

Paragraph 21(c) of Part 1 of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria states: ”The National Judicial Council shall recommend to the Governor from among the list of persons submitted to it by the State Judicial Service Commission persons for appointments to the offices of the Chief Judges of High Courts of the States.”

The Powers of the State Judicial Service Commission are contained in Paragraph 6 of Part II of the Third Schedule. The Commission shall have power to advice the National Judicial Council on suitable persons for nomination to the office of the Chief Judge of the State and Judges of the High Courts of the State.

The power of the National Judicial Council on the appointment of judges of the state High Courts is to recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission. Emphasis is on ‘to recommend’ and not to ‘appoint’.

The 2014 National Judicial Council Revised Guidelines are more comprehensive and in some parts a radical variation of the 2004 Revised Guidelines and Procedural Rules. In some cases it whittled down the Constitutional powers of the Judicial Service Commission, gives undue powers to the Chief Judges and gives to the NJC powers to conduct interview of persons proposed for appointment of state High Court Judges, impose sanctions on such applicants and assumed a function never envisaged by the 1999 Constitution. In retrospect, the then Chief Justice of Nigeria ought to have presented this document to the stakeholders for perusal, appraisal and discussion, to enable them make their input prior to its operations, because of its far reaching effect on a process that has been extensively criticized and lampooned as porous and not merit driven.

The provisions of Rule Three are novel, because it enjoins the Judicial Service Commission to call for expression of interest by suitable candidates by way of public notice placed on its website, notice boards of Courts and Notice Boards of the Nigerian Bar Association Branches and as relates to appointment of state High Court Judges write to the Chairman of every Branch of the Nigeria 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.

This provision is a radical departure from Rule 2 (2) of the 2004 National Judicial Council Guidelines which limits the call for nomination to Judicial Officers of Superior Courts in the State concerned and Heads of Superior Courts only. The 2014 Guidelines recognises the interest of all the other stakeholders in the appointment process and is therefore commendable.

Rule Three (4) stipulates that soon after the close of nominations the Chairman of the State Judicial Service Commission (not the Judicial Service Commission) shall make provisional shortlist on the merits consisting of not more than twice the number of Judicial Officers intended to be appointed and circulate the list with a request for comments on the suitability or otherwise of the shortlisted candidates.

This provision is a radical departure from the former process that requires the State Judicial Service Commission to prepare two lists of A and B to be the “Priority” & “Reserved” lists. This provision erodes the power of the State Judicial Service Commission and constitutes the Chief Judge, for all intents and purposes as the sole appointing authority. This provision is contrary to the provisions of the 1999 Constitution which explicitly vests this responsibility on the Commission and not solely its Chairman.

In the hands of a sole appointing authority, the process is susceptible to abuse, misuse and a veritable means of patronage. Rule Three (5) states that “The Chairman of  State Judicial Service Commission shall place the provisional shortlist before the State Judicial Service Commission for approval, with or without modification and the provisional shortlist shall become the Final list”. It was NEVER the intention of the Constitution to constitute a rubber stamp State Judicial Service Commission of the Chief Judge, but that the State Judicial Service Commission would actively be involved in the appointment process and thereby take responsibility for the quality of Judges in their States.

Rule 6 (i) provides that all shortlisted candidates shall undergo interview to be conducted by National Judicial Council to ascertain suitability. This provision is in bad taste and gives the NJC powers to determine the persons to choose, at its discretion, based on parameters not stated, who would be appointed judicial officers, such as High Court Judges in state courts. This provision empowers the NJC “to appoint”.

It is in total contravention of Judicial federalism and undermines the constitutional primary role of the State Judicial Service Commission. It is neither the duty nor responsibility of the National Judicial Council to “appoint” Judges in State High Courts. I believe that realising the foolhardiness of Rule 1, Rule 2 of the 2014 Guidelines makes a superfluous provision, that the mode of interview shall be determined by Council. Is it written examination, oral interview or both? The failure to resolve this question makes the document non-transparent and subject to the discretion of the composition of the National Judicial Council, which is not of itself devoid of the political dynamics of the appointment process and cannot be said to be insulated from political manipulations.

Rule 6 (3) and (4) of the 2014 Guidelines are contradictory.  While (3) states that the interview shall form a major part of the candidates suitability, (4) stipulates that ‘a candidate who is unsuccessful at the interview shall not be recommended for appointment by the Council.’

Rule 6 (5) stipulates that a candidate once rejected on the several grounds stated in Rule 4 (4) (ii) shall not be represented for at least 2 years or any such period as the Council may direct. What happens to the candidate who is unsuccessful at the interview contemplated in Rule 6 (4)? There is a serious lacunae here. Did the Guidelines envisage that such a candidate may also not be representable within two years or can be presented immediately afterwards? It is important to know the penalty that would be imposed on a candidate who is unsuccessful at the interview.

In trying to find solutions to the heavily criticised procedure for the appointment of Judges, as contained in the 2004 Guidelines, the NJC in the 2014 Guidelines have created numerous problems and further complicated the process. The Chief Judges have been given enormous powers and depending on the calibre of the person in the office of Chief Judge and his/her perception of his/her role, there would be the likelihood of recommending their surrogates, friends and relations, as the case may be.

Also, it is not unlikely that the Chief Judges may not ordinarily be versed in the suitability of legal practitioners and Attorneys in the Ministries of Justice or the academia, to enable them prepare a transparently fair list that would encapsulate the interests of all aspirants.

The 2014 Guidelines has eroded the primary functions of the State Judicial Service Commission, the body constitutionally empowered to appoint High Court Judges of their respective States; they interact with and most likely know the applicants personally; they are more competent to choose based on parameters set. If anybody or persons should conduct an interview as envisaged in Rule 6, it is the State Judicial Service Commission and not the NJC, as is prevalent in other Commonwealth jurisdictions.

What the Amended Guidelines sought to achieve is to whittle down the possible political intermeddling that may take place in the States or unbearable pressure by the traditional rulers, politicians or influential persons on the State Judicial Service Commission. This assumption seemingly well- founded is unjustifiable, because of the calibre of persons that constitute the State Judicial Service Commissions, who on their own, are presented to the State Houses of Assembly for approval prior to assumption of office.

Afterall, in the past, nominations by the State Judicial Service Commission had been distorted and tampered with at the National Judicial Council in preference to candidates favoured by National Judicial Council influential members. According to Joseph Otteh: “there was a time, as legal historians say, that Nigeria’s Judiciary was the Continent’s showpiece. How did Nigeria squander that legacy so voraciously”.

The 2014 Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria is in my candid opinion unconstitutional and ultra vires the powers of the NJC, whose effort to expand its jurisdiction and area of influence in a matter ordinarily the purview of the State Judicial Service Commission is ultra vires its power and constitutes nothing but inter- meddlesomeness in the affairs of the State High Courts.

The NJC’s constitutional responsibility in appointment of state High Court Judges is to ratify nominees of the Judicial Service Commission and not to interview, fail, pass or determine the judges for the state. Afterall, the judges are judges of the State High Courts and not Federal Judges. Their spheres of influence and jurisdictions are limited within the geographical delineated boundaries of their states.

 

The disagreement over the appointment of a Chief Judge of Rivers State is yet to be resolved. Joseph Otteh and Mrs O. Nwabuzor of the Lagos-based rights advocacy group, Access to Justice (AJ) argue that the seeming unending controversy could have been averted. 

Prior to the retirement of the erstwhile Chief Judge of Rivers state on August 20, 2013, the Rivers State Judicial Service Commission (“JSC”) initiated processes of appointing a successor by forwarding the names of two nominees to the National Judicial Council (“NJC”); these were Justices P.N. Agumagu and Daisy Okocha.

The NJC deliberated on these nominees and, by a letter dated 22nd July 2013, communicated its rejection of Justice Agumagu’s nomination and recommended Justice D. Okocha for appointment as CJ saying that Justice Okocha was the most senior High Court judge of the state at the time. Notwithstanding the NJC’s decision, the Governor of Rivers State on August 20, 2013, swore in Justice Agumagu as the acting CJ of Rivers State.

On the application of a group called Kengena Unity Forum, a Federal High Court sitting in Port Harcourt, on February 18, 2014, nullified Justice Agumagu’s appointment as the acting CJ and directed the State Governor to comply with the relevant provisions of the 1999 Constitution. However, Justice Agumagu had indeed served out the three month period allowed by the Constitution for an acting appointment, which expired on November 20, 2013.

The Governor wrote to NJC on September 23, 2013 appealing that the Council reviews its decision not to recommend Hon. Justice Agumagu for appointment as CJ, but the NJC stood its ground. This prompted the Rivers Attorney General (Wogu Boms) and the state JSC to file Suit No FHC/PH/CS/421/2013- Governor of Rivers State & 2 ORS Vs The National Judicial Council & Hon Justice Daisy Okocha before the Federal High Court in Port Harcourt asking for a judicial construction of section 271 of the Constitution relating to the appointment of a CJ, and also to determine whether Justice Agumagu was the candidate to be recommended and forwarded by the NJC to the Governor for appointment as CJ of Rivers State.

On March 18, 2014, the Court delivered judgment in the case giving affirmative answers to the questions.

In almost a lockstep timing with the decision, the Governor, on the same day, and on the confirmation of the Rivers State House of Assembly swore in Justice P.C. Agumagu as the 7th CJ of Rivers State. There is an appeal pending on this matter.

One week later, on March 26, 2014, the NJC suspended Justice P. Agumagu from office as a judicial officer as well as issued him a query to answer why he should not be dismissed, justifying its action under Paragraph 21(d) of Part 1 of the Third Schedule to the Constitution.

The Council reached this decision at its 10th emergency meeting of March 26, 2014 where it observed that due process was not followed in swearing in Justice Agumagu to office.

The NJC noted that it did not, at any time, make any recommendation to the Governor of Rivers State that Justice Agumagu be appointed the substantive CJ of Rivers State. Based on the above, the NJC resolved that it will neither recognise nor deal with Justice Agumagu as the CJ of Rivers State.

Appointment of CJs under the 1999 Constitution

Under the Constitution, four institutions are involved in the appointment of the CJ of a state, namely; State JSC, the NJC, the State Governor and the State House of Assembly. To limit absolutism in any one body, the Constitution creates a 4-prong process beginning with the State JSC sending a list of shortlisted candidates for the position of CJ to the NJC (See Third Schedule, Part 1, Paragraph 21(c)).

Next, the NJC recommends a selected candidate to the Governor for appointment as CJ. Afterwards, the Governor appoints the CJ and sends such appointment to the State House of Assembly for confirmation and, lastly, the Governor, after confirmation of the candidate, swears in the candidate. (Section 271(1)).

The constitution contemplates a progressive, consensus-achieving process involving all the institutions involved in the appointment of a substantive CJ of a state. S 271 (1) of the Constitution can be construed to expect all parties to confer with each other until they come to an agreement on a candidate.

Where this consensus is missing, negotiations must continue until an amicable agreement is reached. For example in Abia State, it took close to three years, (from 2011 to 2014) before a “consensus” substantive CJ was appointed for the state. In that time, the governor, with NJC’s approval, appointed three judges of the High Court to act as CJ in turns.

The legality of Justice Agumagu’s “appointment”

Justice Agumagu’s appointment as the substantive CJ of Rivers State was based on the judgement delivered by Justice Akanbi of the Federal High Court. In the judgement, the court answered all the questions put forward to it by the Plaintiffs in their favour.

In particular, the court declared that the Governor had the right to reject the candidate recommended to him for appointment by the NJC. It also said that Justice P.C. Agumagu is a fit and proper nominee and remains the candidate to be recommended to the Governor for appointment irrespective of which court he came from.

The Court further made an order restraining NJC from carrying into effect the decision and recommendation in the said letter of 22nd July 2013 or acting upon it in any way or manner detrimental to the interest of the Plaintiffs or acting in a way and manner suggesting an insistence on the candidate it recommended by its letter of 22nd July, 2013.

(The decision referred was NJC’s refusal to recommend Justice Agumagu on the basis that he was the president of Customary Court of Appeal and not the most senior judge of the High Court Bench of Rivers State. The recommendation referred to is that NJC recommended Justice Okocha instead of Justice Agumagu.)

Looking at the judgement, the question is: Did the “restraining order” take away the constitutional power the NJC had to recommend a candidate to be appointed Chief Judge to the Governor?  Clearly no!

The court restrained the NJC from carrying into effect its decision that Justice Agumagu was ineligible to be considered for the position of Chief Judge and its recommendation of Justice Daisy Okocha for appointment into that position. The judgment did not make any consequential orders.

So, was the Governor, by this judgement, entitled to appoint a Chief Judge without NJC’s recommendation? Again, clearly no! The most the judgment could have done is to trigger a fresh round of inter-agency communication on the subject, with the NJC obeying the court’s judgment not to insist on its interpretation of the Constitution, at least until the order is set aside or stayed.

The Governor should have made representations to the NJC based on the judgment and given the NJC the opportunity to comply with the judgment before taking any further steps in the matter. Neither the Governor nor Hon. Justice Agumagu gave the NJC the opportunity to comply with the judgement.

In purporting to appoint Justice Agumagu as substantive CJ, the Governor brushed aside mandatory constitutional stipulations governing the process, as well as undermined the role and powers of the NJC in that regard. (It is trite law that ‘Where a statute has prescribed the mode of performing an act, only that mode of performing the act competently is contemplated otherwise the act will be a nullity’. Abubakar v Nasamu (No. 2) [2012] 17 NWLR 523 at 577.)

For a valid appointment to the office of CJ, no party conferred with constitutional duties in the process can be side-lined, least of all, the NJC. The NJC is key to both the appointment and disciplinary process of judicial officers as judicial decisions have reaffirmed.

AJ believes that the NJC measured up to scratch this time! While the Council may have floundered time and time again in the past, it got it right this time around. In the past, the Council had acted as though it was a toothless bulldog, allowing State Executives ride rough-shod over its decisions, as it did in Enugu, Oyo, Kwara States.

The Council’s efforts to defend its voice and mandate, and, ultimately, the independence and authority of the 3rd arm of government is a welcome new dawn, and, finally, the Council has summoned the courage to be what the Constitution says it should be. This will help it regain respect among other branches of government.

AJ supports the position the NJC has taken on the “appointment” of Hon. Justice Agumagu and urges Hon. Justice P.N. Agumagu to relinquish that office now!

Otteh is Executive Director, while Mrs Nwabuzor is Programme Officer at Access to Justice, Nigeria