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Errors in the reviewed guidelines for judges’ appointment

In the recent past, the guidelines for the appointment of judges onto the state high courts bench have been widely criticised by stakeholders. The critics said the process is fraught with irregularities and is allegedly subject to influence by the political class, traditional rulers, former and sitting judges, as well as some senior lawyers, who tried to ingratiate their children in the system. This claim seemed to have been underscored in several instances where children of former judges and prominent lawyers have been appointed as judges.

The criticism seemed to hit the climax at a recent seminar organised by the United Nations Office of Drugs and Crimes, Access to Justice and the Nigerian Bar Association. The gathering was convened for stakeholders to review the process of judges’ appointment, with a view to making recommendations towards the development of a more holistic approach, that is devoid of the influences herein above stated.

The Revised National Judicial Council Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Records in Nigeria of November 2014, signed by the immediate past Chief Justice of Nigeria, Justice Aloma Mukhtar, was obviously a reactionary response to the barrage of criticisms attending the existing guidelines for judges’ appointment.

However, a perusal and comparison between the Justice Mukhtar’s revised guidelines and the existing January 2004 National Judicial Council Guidelines show that the guidelines review panel ran foul of certain constitutional provisions. It is clear that some of the rules fashioned into the revised guideline are not only unconstitutional but are also in excess of the powers of the National Judicial Council, which is a creation of the 1999 Constitution itself.

Paragraph 21(c) of Part 1 of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria states that, “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 is contained in Paragraph 6 of Part II of the Third Schedule. It provides that the commission shall have power to advise the NJC on suitable persons for nomination for the office of the Chief Judge of the state and judges of the high courts of the state.

The power of the NJC in respect of 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 JSC. Emphasis is on “to recommend” and not to “appoint.”

The 2014 NJC Revised Guidelines is more comprehensive and in some parts a radical variation of the 2004 Revised NJC Guidelines and Procedural Rules.

In some cases it whittled down the constitutional powers of the JSC and gave undue powers to the Chief Judges. While giving to the NJC powers to conduct interview for persons proposed for appointment as judges of the state high court, the reviewed guideline equally empowered the NJC to impose sanctions on such applicants and assume a function that is never envisaged by the 1999 Constitution.

In retrospect, the retired Chief Justice of Nigeria ought to have presented this document to the stakeholders for perusal, appraisal and discussion to enable them to make their input before enacting it as an operative document, because of its far-reaching effect on a process that has been extensively criticised and lampooned.

The provision of Rule Three is novel, because it enjoins the JSC to call for expression of interest by suitable candidates through public notice placed on the commission’s website, notice boards of courts and notice boards of the Nigerian Bar Association branches across the country.

This provision also suggests for the commission to write to the chairman of every banch of NBA in the state where high court judges are to be appointed, asking for nomination of suitable candidates for the proposed judicial appointment and requesting that the NBA chairman brings to the notice of suitable candidates the call for expression of interest.

This provision is a radical departure from Rule 2 (2) of the 2004 NJC 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 recognise the interest of all the other stakeholders in the appointment process.

Rule 3 (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 merit, 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, A and B, “Priority” and “Reserved” list respectively.

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 in the commission and not solely in its chairman. In the hands of a sole appointing authority, the process will be susceptible to abuse, misuse and become veritable means of patronage.

Rule 3 (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, rather the Constitution envisaged that the State Judicial Service Commission would actively be involved in the appointment process.

Rule 6 (i) provides that all shortlisted candidates shall undergo an interview to be conducted by the NJC so as to ascertain their 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 the states. This provision empowers the NJC “to appoint”.

It is in total contravention of judicial federalism and it undermines the primary constitutional role of the State Judicial Service Commission. It is neither the duty nor the responsibility of the NJC to “appoint” judges in state high courts. I believe that realising the foolhardiness of Rules 1 and 2, makes a superfluous provision that the mode of interview shall be determined by the 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 NJC.

Rules 6 (3) and (4) 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 re-presented for at least two 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 lacuna here and a disconnect in the perception of the review panel. Did the panel envisage that such a candidate may also not be re-presentable 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, the NJC has created problems and further complicated the process.

The Chief Judges have been given enormous powers and depending on the calibre of person in the office of the 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. It should be noted that some of the Chief Judges serve short tenures, in some instances less than one year. Also, it is not unlikely that they may not ordinarily be versed in the suitability of legal practitioners and attorneys in the Ministries of Justice or the academia to enable them to prepare a transparently fair list that would encapsulate the interests of this latter group.

The guidelines as revised have eroded the primary functions of the State Judicial Service Commission. The State Judicial Service Commission is the body that is 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 the parameters set. If anybody or persons should conduct an interview as envisaged in Rule 6, it should be the State Judicial Service Commission and never the NJC that should conduct that interview, as it is prevalent in other commonwealth jurisdictions.

What the amended guidelines sought to achieve is to whittle down the possible political meddling that may take place in the states or the unbearable pressure by the traditional rulers 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. Afterall, in the past, nominations by the State Judicial Service Commission have been distorted and tampered with at the NJC in preference for candidates favoured by NJC influential members.

Also, would it not have been more appropriate for the Chief Justice of Nigeria to present a draft copy of the guidelines to the various stakeholders for their input prior to enactment as guidelines effective from November 3, 2014?

In conclusion, the 2014 Revised National Judicial Council Guidelines and Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria is unconstitutional and ultra vires the powers of the NJC, which seems to be making efforts to expand its jurisdiction and area of influence in a matter that is ordinarily within the purview of the State Judicial Service Commission. Such extension of influence is condemnable and in so condemned. The National Judicial Council’s constitutional responsibilities in the 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 delineation of their respective states.

  • Uthman is a legal practitioner

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