Long accustomed to exasperating delays, the expectations of Nigerians for quick dispensation of justice might yet remain elusive. Specifically, the ranks of the justices at the Supreme Court of Nigeria have dwindled dangerously following the departure of Aminu Sanusi, who attained the mandatory retirement age of 70 in February 2020. His exit reduced the number of jurists in the country’s highest court to 13, eight short of the 21 prescribed by the 1999 Constitution.
Curiously, the Supreme Court has never attained the full complement of 21 justices in the past two decades. This is despite an ever-expanding cause list, partly arising from the fractious and litigious nature of our democracy. The court attained its best moment in January 2017 when Uwani Abba-Aji took the oath of office, increasing the number of justices to 17. But that honeymoon was brief.
About two years later, the President, Maj.-Gen. Muhammadu Buhari (retd.), acting under a controversial court order, suspended the then Chief Justice of Nigeria, Walter Onnoghen, which culminated in his removal from office by the National Judicial Council. This, combined with the retirement of Kumai Akaahs and Sidi Bage, reduced the number of justices to 14.
Efforts to swell the ranks of Supreme Court justices before and since then have yet to yield the desired outcomes. In line with the extant law, the NJC recommended to Buhari that the quartet of Adamu Jauro, Emmanuel Agim, Chukwudumebi Oseji and Helen Ogunwumiju, presently justices of the Court of Appeal, be elevated to the apex bench in October 2019. Up till now, the vacancies have not been filled. This has to do with the President. In June 2019, Buhari had requested the CJN, Tanko Muhammed, to “initiate in earnest the process of appointing additional five Justices of the Supreme Court of Nigeria to make the full complement of 21 Justices.” Several months on, he has failed to act.
As things stand, the hope of litigants getting justice quickly is rather dim. Appeals at the court can linger for years, by which time some of the litigants may have died before their suits are finally adjudicated. In October 2018, Onnoghen raised the alarm that the diary of the court was filled up to 2021 with appeals, a point he re-echoed in January 2019. In one instance, the Supreme Court turned down 14 pre-election suits in January 2019, ahead of the main elections in February and March, citing section 285 of the constitution.
In this awful situation, a plethora of 2019 pre-election and general election cases that had to be decided because they were time-bound compounded the logjam. Litigation that was not associated with that general election thus suffered prolonged delays. Apart from the bitter experience of the litigants, the jurists are overburdened with cases, and have little time for recreation and family life. This is in contrast with other jurisdictions, where the highest courts enrich the jurisprudence through profound contributions.
Here, there is no time for such erudition. As far back as 1890, when the United States authorities noticed an upsurge in the number of cases burdening their justice system, they acted instantly. A single stroke of legislation put paid to that glitch. That was when the Judiciary Act of 1891 was enacted; it engendered a sea change at the US Supreme Court. From 623 cases filed there in 1890, there was a reduction to 379 in 1891. This shrank further to 275 in 1892. That is how to shrink the cause list at the Nigerian Supreme Court.
The major impetus needed for succour rests with Buhari. To speed up the wheels of justice, the President should exhibit a great sense of responsibility required in these burdensome times by expeditiously vetting and forwarding the names recommended to him in 2019 for Senate confirmation. Given that some other JSCs might be retiring in the near future, the President should make a fresh request to the CJN for other nominees to build up the numerical strength of the court to an appreciable level. This is in the short term.
At inception in 1976, there were three Court of Appeal Divisions — in Lagos, Enugu and Kaduna. But with the need to cut long distance travels and the cost of litigation and promote efficiency, there are now 19 divisions of the appellate court. It is out of place that while the Court of Appeal is expanding, the Supreme Court is stagnant. Therefore, Buhari should initiate reforms of the justice system, concentrating on how to speed up elevation of Court of Appeal justices to the Supreme Court.
The reforms should be broad to the extent that the bench should be made attractive to practising lawyers. The current practice where the CJN must be the longest serving JSC, though convenient, is promoting mediocrity; it should be rigorously looked into with a mind on the benefits of merit. Suggestions that the apex bench admit some senior and deserving members of the bar and the academia should be part of the reforms. This option has helped greatly to enrich the US appellate courts and was the route by which Nigeria gained erudite jurists like the late Taslim Elias, who went on to enjoy an illustrious career as president of the International Court of Justice.
Partly, the current crisis is embedded in the illogicality that all manner of election appeals − weighty and trivial − end up in the Supreme Court. This was not so at the inception of the Fourth Republic, until the baffling amendment that made governorship election cases terminate there. This not only added to the delays, but disrupted the wheels of justice. To address this anomaly, the instrumentality of the law should be brought to bear on it with a reverse amendment that will see governorship and some other election petitions terminating at the Court of Appeal.
Having 21 justices for apex court may be suited to Nigeria’s environment. There are nine justices on the US Supreme Court now; 12 and nine for the apex courts in the United Kingdom and Canada respectively. For the US, approximately between 7,000 and 8,000 new cases are filed in the Supreme Court in a term, which is between the first Monday in October and the first Monday in October of the next year. The challenge for Nigeria lies more in adopting technology to improve the administration of justice and optimising current constitutional arrangements.