The quality of judges and their judgments have been identified as part of the bane of the judiciary. Tunde Olofintila writes that appointing judges from the academia can improve quality of judgments.
For some time, there has been some growing an worried Vconcerns by jurists, legal practitioners of note and ordinary Nigerians about the quality of judges being appointed to the Bench and the quality of what some of these judges churn out in the name of rulings and judgments.
The most recent were during the various activities marking the golden jubilee of the legal icon, Aare Afe Babalola’s call to the Bar, where jurits like the Hon. Justice Emmanuel Ayoola JSC (rtd), some thespians and Babalola himself expressed reservations about the goings-on in the nation’s judiciary, particularly on the Bench.
At some point during the celebration, Ayoola and the thespians came to the unwavering conclusion that the geographical entity called Nigeria is indeed sick. Ayoola, the Guest Speaker, who spoke on a topic titled: “The Future of Law in Nigeria”, echoed the pathetic goings-on in the nation’s judiciary when he said “comparing the past with the present and the future has enough that can easily fill one with despondency. The gains of the past seem to have been swallowed up in the decline of the present. It is against this background that the truth must be told that unless we take immediate steps to arrest the prospect of law’s increasing impotence and apparent irrelevance, the future of law is bound to be dismal”.
If artistes, who as social engineers entertain and educate the populace and a Jurist in the mould of the highly discipline and thoroughly distinguished Ayoola could come to that conclusion at different times and settings within 24 hours, then Nigeria is indeed and undoubtedly sick.
Babalola, who was more forceful and forthcoming in his diagnosis, agreed with both the artistes and Ayoola that what ails the project Nigeria mainly is dishonesty and mismanagement of funds, whether of employers or of government, corruption and poor attitude to work as well as eye service, poor planning and execution at all levels among many other despicable vices.
Now fishing in familiar waters, Babalola recalled how many lawyers have been asking for the abrogation of the SAN title in last few years. Their grievance being that they apply yearly with as many as 70 qualifying for the award every year. But at the end of the day, the Legal Privileges Committee of the Bar, which admits Legal Practitioners into SAN-ship, would lean so heavily on the law that says they cannot appoint more than 15 in any particular year, thereby leaving (having) a backlog of those who are qualified, but not awarded.
The question then arises: if a person is qualified at a particular time, at what point does he become unqualified again? Perhaps one may ask those who are charged with the duty of appointing 15 out of 60 or 70 qualified practitioners what criteria they use to jettison those who are qualified. The problem here is that without knowing it, this practice of appointing 15 out of the several that are qualified has led to corruption, sectionalism and favouritism and corner cutting by some junior lawyers, thereby lowering the standard of practice in the country.
Nigeria should copy England where the idea of the silk (SAN title), the equivalent of Queen’s Counsel (QC) in England was borrowed from root, stem and branch. From time immemorial in England, no matter the number that qualify in a particular year, be it 60 or 70, all of them would be appointed, leaving no room for any backlog. Nigeria must do the needful in this regard if it must not be left behind.
On the judiciary, he said it will be pretentious for anyone to say or think that all is well with the judiciary as it is today, both in the quality of appointees and the judgments they deliver.
His words: “Up to the late 1970s, lawyers were invited to the Bench based on quality and competence of such lawyers, but nowadays, all that is required is that you must have 10-years post call and nothing more as a result of which the nation is not likely to get the best through that way of appointing our judges.
Today, many extraneous qualifications have crept into the appointment of judges so much so that people working in public limited liability companies have been appointed judges to satisfy geographical spread.
Mind you, these are people who have not been to court before, who have never practised and yet they are being appointed judges only to satisfy some interest alien to the administration of justice. Pray, what sort of judgments do we have with this type of sloppy appointment to the Bench”
He added: “With this type of people on the Bench, there have been numerous cases where judges have adjourned ex-parte motions because the other party has not been served. A ridiculous and ludicrous situation indeed because ex-parte motions do not involve lawyers on the other side! Lawyers have been faced with the ridiculous situations where ex-parte motions were adjourned because there is no evidence of service in the file”.
Babalola, therefore, suggested that if people who qualify to be made SANS are not restricted in number, there would be a ready pool of SANs, who have made good money in their practice years, and ready to accept elevation to the Bench like the late Hon. Justice Taslim Olawale Elias and the late Hon. Justice Augustine Nnamani, thereby increasing/improving quality of judges and reducing corruption.
But beyond Babalola’s therapy, another sure way of improving the quality of appointees to the Bench, particularly at the appellate levels, and by inference the quality of their judgments is by appointing some seasoned Academics as is the practice in the United States where no fewer than five Justices of that appellate court are Professors of Law who have been able to inject innovation and reform to the administration of justice.
They are Hon. Justice Antonin Scalia, who after some time in private practice, became a Professor of Law at the University of Virginia and a Professor of Law at the University of Chicago as well as Visiting Professor of Law at the Georgetown University and Stanford University before he was appointed Judge of the United States Court of Appeals and as an Associate Justice of the Supreme Court in September 1986 and Hon. Justice Anthony M. Kennedy, who after a stint in private practice became a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific before his appointment to the United States Court of Appeals in 1975 and eventually as an Associate Justice of the Supreme Court in 1988.
Others are Hon. Justice Badder Ginsburg, a Professor of Law at Rutgers University School of Law and Columbia Law School who was appointed a Judge of the United States Court of Appeals in 1980 before her appointment to the Supreme Court in 1993, Hon. Justice Stephen G. Breyer, who was at various times a Professor of Law and Lecturer at Harvard Law School, a Professor at the Harvard University Kennedy School of Government and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. He was appointed a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994 and Hon. Justice Elena Kagan, who after a stint at practicing Law in Washington became a professor of Law, first at University of Chicago and later at Harvard Law School as well as Dean of Harvard Law School before her appointment to the Supreme Court Bench in 2010.
The combination of the experiences these eminent jurists have gathered as private legal practitioners, public office holders and as academics have definitely and positively impacted on their judgments and the administration of justice in the United States.
In Nigeria, appointment of academics to the bench is not new following the 1972 appointment of Hon. Justice Taslim Olawale Elias from his professorial chair at the University of Lagos to the exalted office as a Justice of the Supreme Court where he later became the arrow head of Nigeria’s judiciary as the Chief Justice of Nigeria.
It is instructive to note that while in office as a Judicial Officer, the learned and erudite Justice Elias occupied his office with unquestionable integrity, character, industry and dignity.Not minding that the erudite scholar and exemplary (ethics-minded) jurist was removed from office as CJN in some inexplicable circumstances in 1975, his jurisprudential excellence, which could. not be caged or ignored, later saw him being appointed to the International Court of Justice (ICJ) at the Hague in 1976 and was elected President of the world body in 1982 after the death of Sir Humphrey Waldock, thus becoming the first African to occupy that lofty seat.
Agreed that not all academics or Senior Advocates of Nigeria will be like Elias, after all two identical twins from the same homozygote egg cannot behave alike, but the Elias example gives verve to the argument that more academics could be given the opportunity to adjudicate at the appellate levels of our legal system.
Another academic, who made it to the Bench, was Hon. Justice Niki Tobi, who left University of Maiduguri as a Professor and Dean, Faculty of Law and Deputy Vice-Chancellor (Academics) for an appointment as a Judge in the Rivers State Judiciary.
The fact that he rose from the High Court Bench to become a Justice of the Court of Appeal and eventually a Justice of the Supreme Court bears an eloquent testimony to that academics excel on the Bench.
Yet, another is Hon. Justice Adolphus Karibi-Whyte, who was appointed to the Rivers State Judiciary from the University of Lagos. He later became the Chief Judge of Rivers State from where he was elevated to the Supreme Court like Hon. Justice Chukwudifu Oputa who Imo State Chief Judge and Hon. Saidu Kawu who was Kwara State Chief Judge. It is trite to say that Hon. Justice Karibi-Whyte had a thoroughly distinguished career on the Bench, including his stint at the Supreme Court.
With all these as reliable precedents, just imagine a Prof. Ben Nwabueze, an expert in Constitutional Law, a Prof. Chris Ohuruogu, an expert in Human Rights Law, A Prof. Akin Oyebode, an expert in Jurisprudence and International Law, a Prof. Itse Sagay, a Prof. M.T. Abdulrazaq, an expert in Taxation, a Prof. G.A. Olawoyin, a Prof. I.O. Agbede, and a Prof. P.A. Oluyede or a Prof. Ayo Ajomo on the Supreme Court Bench. These men and many others like them who will occupy the Bench with dignity, scholarship and eminence will lend colour and character to the quality of judgments delivered in their respective areas of specialisation.
It is also capable of checkmating the tardiness among some judges and enhancing the quality of judgment as they will bring their learning and scholarship to bear on their judgments and complement the efforts of those of their peers on the Bench who do not have an academic background. It is worth giving a try. If it works, we continue to run with it and if it does not, we jettison the idea. After all, there is no harm in trying. Nothing ventured, nothing gained!
