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FJSC, Court of Appeals controversial repudiation of standards

Published by The Nation on Sun, 21 Feb 2021


This piece was first published in December 2017 when a precedent controversy engulfed the nomination of justices to the Court of Appeal that year. The process ended up being dangerously and shamelessly distorted. The same court is again in the eye of the storm, prompting a fresh publication of this piece to warn judicial authorities about the path of perdition they are determined to walk. Will they listen' In fact, are they not so far gone that they now lack the capacity to listen'IN January when the then Acting Chief Justice of Nigeria, Walter Onnoghen, announced a paradigm shift in the appointment of appellate justices, this column, after observing arguments on the subject, was satisfied enough some two months later, to offer unsolicited advice. That advice, which sadly fell on deaf ears, is reproduced in the essay above today more or less to mock Nigerias judicial hierarchies about their lack of discipline and integrity in both the appointment of judges, including and especially appellate justices, and apparently their appalling sense of history and lack of farsightedness.Now, after many months of dilly-dallying, couched in what they controversially describe as a painstaking nomination process, 14 justices have been nominated to complement the 76 already functioning as Appeal Court justices. The law stipulates the appointment of 90 justices, according to Section 2 of Court Appeal (Amendment) Act, 2013. The priority list, which the National Judicial Council (NJC) in their typical obfuscation described as still undergoing processing, contains a rather lengthy addendum of another 14 justices supposedly included as the reserved list in case some of the names on the priority list do not pass muster. When in January Justice Onnoghen spoke inspiringly of instituting conditions that would lead to the appointment of great and knowledgeable jurists, and most people believed him, he did not give the impression that the list would end up as anticlimactically as his own appointment which the federal government clumsily attempted to sabotage.Everybody believed the CJN in January, including this column. At any rate, the Nigerian Bar Association (NBA) was chief among the converts to Justice Onnoghens proselytising talk. Eager and trusting that change was afoot, the NBA had assembled about 187 nominations, out of which some 12 were finally shortlisted and forwarded to the relevant quarters. In the NBA list were some of the brightest and most enterprising legal minds the country could boast of. If any of the 12 was finally considered at all by the Court of Appeal and the FJSC, there was no indication of that anticipated thoroughness or fidelity to judicial reformation in both the priority and reserved lists. The list, in effect, reads more like a sop to judicial dynasties than to legal proficiency, and a disingenuous abdication to wholesale quota rather than merit. The CJN promised that, as a first step to fostering a favourable perception of the appellate courts, wholly different considerations that would lead to the appointment of brilliant and qualified jurists would be enthroned. Nothing of that nature was apparently either truly intended or accomplished. Had the judicial authorities planned a 60:40 ratio in favour of merit, the outcome would not have been as lamentable as it is.Every Nigerian, including the CJN himself, knows that the quality of judgements coming from Nigerian courts has declined considerably. Indeed, in acknowledgement of that realisation, the vice president, Yemi Osinbajo, himself a law professor, made reference to how judges were appointed in the United Kingdom, including subjecting the nominees to about 17 different tests before appointment. But perhaps the CJN and the NJC had no hands whatsoever in the compilation of the Court of Appeal list, just as the matter was squarely between the Federal Judicial Service Commission (FJSC) and the Appeal Court. It is however difficult to believe that both the CJN and the NJC would wholly surrender the process to the Court of Appeal and shirk their own supervisory and regulatory responsibilities to the entire judiciary.The NJC should be disturbed that increasingly the intellectual gap between the bar and the bench is widening, with many lawyers of world standard being produced in Nigeria, and jurists of global standardin character and learningremaining in abysmal short supply. If the NJC knew the exercise would be restricted to quota rather than merit, as its diversionary argument of lopsided nominations indicated last week, it should have limited the nominations to those states that were unable to fill their quotas. By opening up the nominations to both the bar and the academia, instead of only the bench, and yet recommending only members of the bench for appointment, the approving authorities obviously acted in bad faith, though they now feign ignorance.A few decades ago, Nigeria was producing jurists of international repute: the Eliases, Udomas, Agudas, etc. Now the appellate court, as a number of court cases have proved without a shadow of doubt, can hardly give judgements worthy of being quoted as precedent within and outside Nigeria. If the list of nominations in circulation is the best the NJC is willing to vouchsafe when it meets in two weeks, though the list comes through the FJSC, and regardless of whether it is still undergoing processing or not, then clearly what motivates the judicial authorities is anything but a need to reform and transform the judiciary. In fact, what is being enthroned is not just a conservative judiciary but a reactionary judiciary. The NJC should stop defending the indefensible and condoning the dismal reasoning of both the Court of Appeal and the FJSC. It must ask itself why the entire exercise should not be redone, for the issue is not really about lopsidedness but about quality of jurists. And it must persuade itself and the hugely sceptical public that the present justices of the appellate courts can by their intellect and character salvage the dwindling reputation of the judiciary.First published on December 3, 2017. Clearly nothing has changed.
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