Just as politicians and the elite have made a mess of politics, their intrusion into the realm of the justice system is becoming all too evident. In a forthright message that exposes the degeneration of the judiciary, Vice-President Yemi Osinbajo has accused the elite of influencing who is appointed as judges. At a topical webinar organised by the Justice Research Institute, entitled, ‘Selection and Appointment of Judges: Lessons for Nigeria,’ the VP lamented the manner the elite are undermining the justice system to promote their self-serving interests. Of the multitude of developmental quandaries besetting Nigeria, this one has so many implications because a robust judiciary is sine qua non for a just and equitable society.
An independent judiciary that acts as an appropriate check on the other branches of government is crucial in building democracy and a just society. Therefore, judges must be free, but obliged, to decide on their own; they must be set apart from someone else’s influence or supervision and judges must be insulated against and independent from any and all sources of improper influence. But hindsight suggests that the Nigerian judiciary is not insulated from the rot afflicting the rest of society. Retired Justices of the Supreme Court, Kayode Eso and Samson Uwaifo, had warned a few years ago that the judiciary was stinking. Among other issues, this narrowed the focus mainly to judges and might have precluded the country from taking a holistic look at the justice system. As the quality of personnel on the bench declined, puzzling judicial pronouncements flourished. Courts of coordinate jurisdiction entertained the same matter, granted questionable (perpetual) injunctions, threw out cases on technical grounds, delivered seriously flawed rulings and rendered the novel Administration of Criminal Justice Act unworkable.
Several times, politics, base ethnic sentiments and personal interests in the executive at the state and federal levels have impinged on the appointment of judges. Knowing that being able to control judges is a licence to manipulate the system in their favour, politicians have hijacked that role, sponsoring their relations and cronies to the bench. This has eroded the trust of the people in justice delivery. In a notable case, a former governor was discharged of corruption charges by a Nigerian court, but was later convicted on a fraction of the same charges by a British court.
This practice cuts across the political, business and religious elite, who disingenuously rely on the federal character provisions to abuse the system. Osinbajo, calling for an honest conversation on the influence peddlers, said, “The Nigerian elite want to be sure of all the outcomes and they want all the outcomes to favour them. It is the interest in that state or that zone who want to further their own purposes that would want to come together to ensure that the person who is appointed is not necessarily the best, but he is the one that is most suited to their own purposes. This is the problem that we have.”
In this context, the Chief Justice of Nigeria, Mohammed Tanko, the top gladiators in the federal parliament and legal practitioners have agreed with this view and support calls for reform. This project is opportune. After accusing the then CJN of seeking to influence the Sokoto State governorship appeal case, a former President suspended Ayo Salami as the president of the Court of Appeal and refused to reinstate him despite a court judgement. The regime of the current President, Major General Muhammadu Buhari (retd.), controversially suspended Walter Onnoghen as the CJN in January 2019.
Undoubtedly, the provisions in the 1999 Constitution on the composition of the National Judicial Council – the body empowered to recommend judges in the superior courts for appointment – have been rendered otiose by the elite class. According to the Third Schedule (Part I) of the constitution, the CJN, who doubles as the NJC Chairman, is vested with the powers to appoint more than half of the over 20-member body. These include five retired Justices of the Supreme Court or Court of Appeal, five Chief Judges of states, a Grand Khadi and five members of the Nigerian Bar Association. This gives enormous powers to the CJN. Tanko rightly agreed that this influence needs to be reduced. The big challenge is that the wily elite will shy away from doing the right thing as and when due.
In Nigeria, the executive and the elite mount severe pressure on the judges in their bid to undermine the independence of the judiciary. State governors buy expensive cars and build houses for judges, a subtle move that speaks volumes.
Nigeria’s peers in the Commonwealth are reforming their judicial systems in line with contemporary dynamics. In a 2015 study, a British NGO, the Bingham Centre for the Rule of Law, stressed that in order to uphold the rule of law and dispense justice, a country’s judiciary must be “independent, impartial, honest and competent.” Not necessarily relying on seniority, the centre recommends, “At a minimum, the public must be informed of the characteristics that qualify persons for judicial office and the procedures that are followed when an individual applies, or is considered for appointment.” It concluded that South Africa and Kenya are on the path of reform. In post-Apartheid South Africa, judges are appointed after shortlisted candidates are interviewed in public and they have completed written tests. Kenya adopted this template in 2010.
Nigeria should improve on these radical models. A compromised judiciary incapacitates the law, perverts justice and hands judgement to wrong parties. It affects the inflow of foreign direct investment, as can be seen in the World Bank Ease of Doing Business (including Enforcing Contracts), in which Nigeria placed 131 out of 180 countries. This demands a root and branch review. The government alone should not be the only one involved in the appointment of judges; the public should be given a vantage role to determine these crucial positions.
To restore confidence, the issue of judicial appointment should not be reduced to just the federal character, quota system, seniority and influence peddling from within and outside. This obfuscates merit, without which the judiciary is imperilled. Starting with the rigorous implementation of Section 12 (3) of the constitution, this is the time to discuss the absolute independence of the judiciary and the entrenchment of an effective mechanism to monitor performance.
