In the coming days, the Supreme Court is expected to constitute a panel to hear the appeal arising from the judgment of the Presidential Election Petitions Court (PEPC. It will also resolve no fewer than 25 states’ election disputes. The justices also have a deluge of thousands of appeals from their regular cases pending before them. But, only 11 justices are on the court’s bench, out of a possible 21, raising fears of a potential crisis unless its vacancies are speedily filled, ROBERT EGBE reports.
At the commencement of the presidential election petition proceedings in March, the Supreme Court comprised 13 justices. But, following the retirement of Justice Amina Augie on September 3 and the death two months earlier of Justice Chima Nweze, the apex court bench dropped to an all-time low of 11 justices out of a possible constitutional ceiling of 21.
It is from these 11 that the Chief Justice of Nigeria (CJN) Justice Olukayode Ariwoola is expected to select seven justices that will hear appeals emanating from the presidential and governorship election petition tribunals.
This is in accordance with Section 230 (2) of the 1999 Constitution.
The court’s second senior-most member, Musa Dattijo Muhammad, is due to retire on October 27.
The Presidential Election Petition Court (PEPC) on September 6 affirmed President Bola Tinubu’s victory as the February 25 presidential election winner.
His closest challengers, Atiku Abubakar of the Peoples Democratic Party (PDP) and Peter Obi of the Labour Party (LP) have indicated their intention to reverse the PEPC’s decision at the apex court.
The aggrieved parties had 14 days to file their appeals at the Supreme Court. The 14-day deadline elapses tomorrow.
The Supreme Court is expected to announce its ruling within 60 days of receiving the petitioner’s appeal.
11 Supreme Court justices
Section 230 (2) of the 1999 Constitution provides that the Supreme Court shall consist of the CJN and such number of Justices not exceeding 21, as may be prescribed by an Act of the National Assembly. To be properly constituted in the hearing of any case, the court shall consist of not less than five Justices. However, the Supreme Court is only duly constituted when there are seven justices in any case where it exercises its original jurisdiction and where the nature of a case affects the fundamental rights of any person.
In case of a presidential election, five Justices of the Appeal Court will determine the petition, while seven Justices will sit to decide the appeal at the apex court.
The current 11 Supreme Court justices are CJN Ariwoola; Musa Muhammad, Kudirat Kekere-Ekun, John Okoro, Uwani Abba-Aji, Garba Lawal and Helen Morenikeji Ogunwumiju.
The rest are Ibrahim Saulawa, Adamu Jauro, Tijjani Abubakar and Emmanuel Agim.
However, Law Prof. Chidi Anselm Odinkalu warns in his article “The law of judicial back to the future” that “If there is an appeal from the judgment of the PEPC, the Supreme Court will notionally have 10 eligible justices, and that is before recusals or other potential conflicts, not to mention ill-health.”
How apex court bench fell from 20 to 11
Following former President Muhammadu Buhari’s elevation of eight justices at a go to its bench in November 2020, the number of apex court justices rose to an unprecedented 20, one shy of a historic 21. This was after the conclusion of the disputes arising from the 2019 presidential election. That was the last set of appointments to the Supreme Court.
However, with the death of Justice Sylvester Ngwuta on March 7, 2021, and the retirement of Justice Rhodes-Vivour 14 days later, only 18 Justices were left on the bench.
Before their replacements could be appointed, Justice Samuel Oseji died on September 28, 2021.
Justice Mary Odili, who became the second most senior jurist of the court, retired on May 12, 2022, while Justice Ejembi Eko also bowed out of active judicial service on May 23, 2022.
The retirement of Justice Augie and the death of Justice Nweze shrunk the apex court bench to 11.
Consequences for election presidential election appeal
One implication of having only 11 justices is that while seven of them are exclusively involved in hearing appeals emanating from the presidential and governorship election petition tribunals, only four of them will be left for other cases. The constitution provides that to be properly constituted in the hearing of any case, the court shall consist of not less than five justices. This raises the problem of a constitutional crisis, as the court may not be able to hear other cases unless more justices are appointed before the presidential and governorship election petition panel starts sitting.
Already, the court is overburdened with a deluge of workload.
Speaking at the investiture of 62 new Senior Advocates of Nigeria (SANs) in Abuja last November 28, Justice Ariwoola said 6,884 cases were pending at the apex court.
Ariwoola explained that a year earlier in the 2021/2022 legal year, the Supreme Court could only handle 1,764 cases, comprising motions and appeals.
It is expected that the number would have appreciated substantially this year, making the gross inadequacy of judges a danger to efficient justice dispensation.
‘Why depleted court may not do a decent job’
United States-based international human rights lawyer and Nigeria Judiciary expert with the US NIGERIA LAW GROUP, in Washington, Emmanuel Ogebe compared the apex court to its US counterpart and concluded that Nigeria can’t perform at par.
In his view, the problem of inadequate justices and other challenges means that the apex court in Nigeria has no institutional and technical capacity to do a decent job.
He argued in his article “Time to reform the Nigerian judiciary” that the court must have its full complement of 21 justices.
Referencing the Governor Ademola Adeleke gubernatorial election case in Osun State which took about 10 months to be resolved from tribunal to appellate courts, he wondered whether it was likely that the challenge of presidential elections conducted in 36 states “can be thoroughly adjudicated in less than 11 months more so when at least another 31 or so gubernatorial elections are also in play?”
Ogebe noted that essentially the Supreme Court “has to resolve potentially 32 (31 states and presidential) multiplied by the respective number of parties challenging the results.”
He criticised “those who amended the constitution to allow gubernatorial appeals go to the Supreme Court rather than end at the Court of Appeal,” saying they did the nation a great disservice.
The lawyer noted that the Court of Appeal has at minimum of five times the number of Supreme Court justices “yet we expect the Supreme Court of a dozen justices to do the same work as them in the same time frame?
“Until we reform our election jurisprudence and overhaul our technical and human capacity, we can’t get great output with no inputs. The Nigerian Supreme Court should have a full complement of 21 justices minimum in an election year. This is a no-brainer.”
‘Supreme Court overburdened, needs more justices’
A former chairman, House of Representatives Committee on Judiciary, Onofiok Luke, called for the appointment of more justices to the court to take the tally to 21.
Luke in a statement, expressed concern about the “over-spending workload” the apex court justices are exposed to.
“It is worth emphasising that the Supreme Court of Nigeria adjudicates over matters from different parts of the country,” Luke said.
“In view of its overstretched nature, some matters have lingered in the court for over 20 years. All reasonable efforts to limit matters that get to the court, as it is obtained in other climes, have proven abortive.
“More worrying is the fact that despite the overstretched nature of the Supreme Court, the court is yet to attain its full complement of 21 justices.”
Luke also agreed that the expected retirements on the court’s bench, “leaves the court terribly short-handed and unable to optimally perform its adjudicatory functions, and more importantly, execute its policy-setting goal.
“The situation is worsened given that this is a post-election season when the services of the court are often called upon. The effects of this unwholesome situation are unquantifiable.”
The former Speaker of the Akwa Ibom House of Assembly noted that while the situation slows down the administration of justice, “it may also reduce the quality of justice delivery to the people as the court lacks the needed and adequate manpower to thoroughly consider matters before it”.
“It is imperative that the necessary stakeholders in the Nigerian project intervene to save the judiciary, and indeed, the country,” he said.
‘How NJC should fill apex court vacancies’
Activist-lawyer Ebun-Olu Adegboruwa (SAN) offered tips on how the National Judicial Council (NJC) should fill the vacancies.
Adegboruwa said: “I think it’s important that we look at the issue of geographical spread as stated under Section 14 of the Constitution.
“Now we have six geopolitical zones in Nigeria, I believe we should look at the ones that are presently there and the ones that are not represented and ensure there is quality representation in the appointment of justices for the Supreme Court.
“So, the National Judicial Council should also look at the request of the Nigerian Bar Association and the Body of the Senior Advocates of Nigeria (BOSAN) to consider active legal practitioners who have made distinction and have reputation and integrity.
“The NBA has filtered some of the list, working with the Body of the Senior Advocates of Nigeria and some recommendations have been made to the National Judicial Council through the office of the chairman who is the Chief Justice of Nigeria.
“The people whose names featured on that list are people of integrity who we think will add value to the legal profession. I think that should also be considered.
“And then we talk about gender parity so that it may also be important to consider having female justices amongst those to be appointed. Those who are qualified and, of course, I am sure there are many of them in the Court of Appeal presently and some other ones in practice who have indicated interest in that position.
“So, my thinking is that it will be good for us because of our diverse nature as a county to give a sense of representation to everybody in all geopolitical zones and then also gender parity; it’s important.”
Crisis looming
Activist-lawyer Festus Ogun also backed the call for speedy appointment of justices to the apex court, noting that otherwise, regular cases would suffer while the election matters are being heard.
“I would advise the NGC to put in machinery for the appointment of more justices, not just for the quick dispensation of electoral justice, but for the quick dispensation of the cases that are pending at the Supreme Court,” he said.
The lawyer noted, among others, that the 11 justices are inadequate to form two panels of the court, which may precipitate a crisis.
Ogun said: “We have 11, just 11. That means there is just one panel, and because it’s a constitutional matter, we must have not less than seven justices of the Supreme Court, if I’m not mistaken.
“So that means you can’t have two panels. How are they going to do it?”
NJC’s efforts to solve the problem
Conscious of the problem, the NJC in June kick-started an appointment process to bring the court to its full complement of 21 justices
CJN Ariwoola declared 10 additional slots on the Supreme Court bench vacant, bringing the total number of openings up for grabs to 10.
He requested Nigerian Bar Association (NBA) President Yakubu Maikyau to nominate suitably qualified candidates to be recommended for appointment to the nation’s apex court.
Other top officials in the legal profession, including the Justices of the Supreme Court and the President of the Court of Appeal also received the CJN’s call for nomination via two letters written on June 14 and 19
Maikyau in a mail to lawyers seen by The Nation said the available slots were open to qualified candidates from all the six geo-political zones.
The notice broke down the vacant slots by regions, being Southeast (two); Southsouth (one); Southwest (one); Northcentral (three); Northeast (one) and Northwest (two).
It redistributed the available slots to the country’s six regions, correcting the imbalance in regional representation.
But, days to the commencement of the presidential election petitions appeal hearing, the NJC is yet to announce its appointments to the apex court bench.
