Appointment Of Court of Appeal Justices: FJSC’s List Versus PCA’s List

This article by Yemi Gbolade discusses the
issue of the recruitment process for Judges vis-a-vis that which
was adopted recently to shortlist candidates for the position of
Justices of the Court of Appeal, insisting that the process which
was followed is flawed, because the list painstakingly compiled by
President of the Court of Appeal was jettisoned in favour of that
which was compiled by the FJSC and hijacked by Politicians.

Introduction

In the last one week, a list of candidates shortlisted for
appointment as Justices of the Court of Appeal has dominated the
social media. The list contains 20 names of Judges as priority
candidates, and an addendum of 20 others as reserved list. The list
indicates that those shortlisted are to appear before the National
Judicial Council (NJC) for interview. The list, allegedly compiled
by the Federal Judicial Service Commission (FJSC), has received
ponderous condemnation from the general public, civil society
groups and ethnic nationalities, on grounds ranging from
allegations of politicisation, ethnicisation, nepotism and
religious bias.

As far back as December last year, the Nation newspaper had
carried out an investigation and reported that the on-going process
of appointment of Justices to the Court of Appeal had been hijacked
by Politicians. It was further stated in the report that sources in
legal and judicial circles privy to the process, described the list
prepared at the FJSC as being dominated by candidates nominated or
sponsored by Politicians, with scant regard for competence,
excellence or hard-work. The exercise, said to have been shrouded
in secrecy from the beginning, was believed to be marred by lack of
transparency and merit.

FJSC’s List and NJC Guidelines for Appointment of Judges

The FJSC’s list, now in circulation, is said to have been
prepared under the guise of the principle of Federal Character and
geographical spread. Under the NJC Guidelines for Appointment of
Judges, Federal Character is the least factor for consideration for
appointment of judicial officers. It is dwarfed by such
considerations as professional expertise and competence, quality of
judgements, performance, demonstration of judicial skill and sound
knowledge of law. The Guidelines only make Federal Character a
permissive consideration, with a caveat that the principle should
not be used as a cover to politicise or compromise judicial
appointments. For the avoidance of doubt, Rule 3 (6) provides that
in carrying out provisional shortlist, Federal Character or
geographical spread shall be taken into consideration, “where
possible, without compromising the independence of the Judiciary or
allowing politics to permeate or influence the appointment”.

Considering the names that appeared in the FJSC’s list, the
influence of politics and application of quota system became
clearly dominant. First, as alleged by the Middle Belt and Southern
Elders Forum, the names of candidates from the North consists of
only Muslim Judges. No single Christian Judge, featured in the
list. Describing the list as appalling, the forum noted, “it is
quite surprising that, of the 20 candidates on preferred list, all
the candidates picked from the North exclude Christians and with
three Khadis on board for a court that needs experts in various
areas of law, including customary law.” The forum, while
threatening a law suit, firmly asserted “we cannot accept that a
multi-ethnic and religious country is being treated in this way. It
is therefore, demanded that the National Judicial Council (NJC)
should trash the FJSC list immediately for the original list
prepared by the President of the Court of Appeal.” This is
embarrassing enough.

Second, the list is most uninspiring. Many of the Judges are
relatively unknown. And, regrettably, some of those in the list,
whose names ring bell, can easily be associated with one political
case or another, in which the current government had received
favourable judgements or convictions of perceived political
enemies. It is, therefore, clear that the FJSC’s list might have
been a veiled attempt designed to reward such Judges. A particular
Judge on the priority list, is known to have failed the security
test in the last exercise. The list, in effect, reads more like a
sop to judicial patronage than to legal proficiency, and a
disingenuous abdication to wholesale quota rather than merit. The
list, on this score, stands discredited.

The PCA’s List

On the other hand, it is said that there exists, a particular
list of the President of the Court of Appeal, Justice
Dongban-Mensem (PCA), which was compiled in strict compliance to
the NJC Guidelines. Documents of nominated candidates were
dutifully screened. Committees of eminent Justices of the Court of
Appeal were set up to scrutinise the candidates on the basis of
their qualifications, quality of their judgements, performance,
judicial skill, knowledge of law and needs of the court. The
candidates were accordingly rated. The shortlisted candidates that
emerged through this rigorous exercise were said to have been
presented to FJSC, but for some politically-motivated reasons,
rejected in a very controversial manner. It is baffling that the
highly revered PCA was somehow unable to stand by her list, and had
to bow to the FJSC’s questionable antics of the political
manipulations and horse-trading.

It is a sad commentary that unity of purpose or synergy is
lacking between the Court of Appeal and the FJSC, over an exercise
as important as appointment of Justices of the Court of Appeal. The
existence of two divergent lists in the exercise, demonstrates a
scenario of a house divided against itself. It also depicts the
existence of differences that became irreconcilable between the
Court of Appeal President and FJSC. This requires the urgent
dispassionate intervention of the National Judicial Council, given
its pre-eminent position as the topmost supervisory body of courts
and judicial body in Nigeria. It is hoped that the NJC would not
wholly surrender to FJSC’s shenanigans, and shirk her own
supervisory and regulatory responsibilities to the entire
judiciary.

It is also curious, as can be observed from the list circulating
all around, that only members of the Bench were nominated for
appointment to the Court of Appeal, to the exclusion of the Bar and
Academia. By recommending only members of the Bench for
appointment, the FJSC has obviously acted in bad faith, and in
contravention of Rule 3(1) (b) of the NJC Guidelines. One way by
which the scope of the capacity of our appellate courts,
particularly, the Court of Appeal and the Supreme Court can be
broadened, is to inject senior members of Bar including those in
the Academia to the courts.

Role of the Judiciary

The Judiciary, it bears repetition, is an important arm of
government. It exclusively plays the prominent role of settling
disputes among citizens and governments. It determines the rights
of individuals and governments. It is also saddled with the
constitutional responsibility of providing essential checks on both
the executive and legislative arms. The art of dispensing justice,
is also undoubtedly a sacred power with grave responsibilities.
Every decision of a Judge has consequences. Every error, even an
unintentional one, can have serious negative effects for the
parties and the society at large. The Nigerian Judiciary at this
critical stage of its history needs justices who are honest,
hard-working, conscientious, brave, patient, cultivated,
intellectually curious and gifted with an intuitive sense of
justice; men and women who carry the gravitas of judicial officers
with all the boldness, dignity and nobility possible. Only a
process of selection and appointment devoid of politicisation,
ethnicity, and nepotism can secure this.

Recruitment Process

Every Nigerian, including members of the NJC, knows that the
quality of judgements coming from Nigerian courts are no longer as
unimpeachable as in the past. The NJC should indeed, be disturbed
that increasingly, the intellectual capacity of Judges in Nigeria
is dwindling, with jurists of global standard – in character and
learning – remaining in abysmal short supply. The first step
towards filling this yearning gap, is the enthronement of the
recruitment process of Judges that would lead to the appointment of
brilliant and qualified jurists, where a 60:40 ratio in favour of
merit is maintained. This is strongly recommended.

A solid Judiciary that enjoys public confidence is an essential
feature of any successful democracy. Several studies have shown
that countries with strong rule of law credentials, tend to be more
economically stable. Most theories of judicial independence also
highlight the significance of a credible judicial selection system,
as a key and indispensable element of judicial independence.
Therefore, it is extremely important to design judicial selection
mechanisms that produce Judges whose independence, integrity, and
impartiality are not in doubt. Judges are the ultimate guardians of
the law and must be appointed in a manner that engenders public
confidence. Ultimately, Judges are at the very heart of our legal
order, and their decisions can have a long-lasting societal impact.
Only Judges that are a product of fair appointment processes can
apply the law fairly, rationally, predictably, consistently, and
impartially.

Conclusion

It is in the light of the foregoing that the National Judicial
Council is called upon to subject both the PCA’s and FJSC’s lists
to a careful scrutiny, with a view to producing the best Justices
for the Court of Appeal. The criteria for choosing good Judges, are
not difficult to identify. Merit should be the sole criterion.
Surely, various factors such as intellectual capacity, personal
qualities, ability to understand and deal with issues fairly,
amenability to team work etc, can feed into the merit of a
candidate.

Yemi Gbolade, Legal Practitioner, Lagos

This article by Yemi Gbolade discusses the
issue of the recruitment process for Judges vis-a-vis that which
was adopted recently to shortlist candidates for the position of
Justices of the Court of Appeal, insisting that the process which
was followed is flawed, because the list painstakingly compiled by
President of the Court of Appeal was jettisoned in favour of that
which was compiled by the FJSC and hijacked by Politicians.

Introduction

In the last one week, a list of candidates shortlisted for
appointment as Justices of the Court of Appeal has dominated the
social media. The list contains 20 names of Judges as priority
candidates, and an addendum of 20 others as reserved list. The list
indicates that those shortlisted are to appear before the National
Judicial Council (NJC) for interview. The list, allegedly compiled
by the Federal Judicial Service Commission (FJSC), has received
ponderous condemnation from the general public, civil society
groups and ethnic nationalities, on grounds ranging from
allegations of politicisation, ethnicisation, nepotism and
religious bias.

As far back as December last year, the Nation newspaper had
carried out an investigation and reported that the on-going process
of appointment of Justices to the Court of Appeal had been hijacked
by Politicians. It was further stated in the report that sources in
legal and judicial circles privy to the process, described the list
prepared at the FJSC as being dominated by candidates nominated or
sponsored by Politicians, with scant regard for competence,
excellence or hard-work. The exercise, said to have been shrouded
in secrecy from the beginning, was believed to be marred by lack of
transparency and merit.

FJSC’s List and NJC Guidelines for Appointment of Judges

The FJSC’s list, now in circulation, is said to have been
prepared under the guise of the principle of Federal Character and
geographical spread. Under the NJC Guidelines for Appointment of
Judges, Federal Character is the least factor for consideration for
appointment of judicial officers. It is dwarfed by such
considerations as professional expertise and competence, quality of
judgements, performance, demonstration of judicial skill and sound
knowledge of law. The Guidelines only make Federal Character a
permissive consideration, with a caveat that the principle should
not be used as a cover to politicise or compromise judicial
appointments. For the avoidance of doubt, Rule 3 (6) provides that
in carrying out provisional shortlist, Federal Character or
geographical spread shall be taken into consideration, “where
possible, without compromising the independence of the Judiciary or
allowing politics to permeate or influence the appointment”.

Considering the names that appeared in the FJSC’s list, the
influence of politics and application of quota system became
clearly dominant. First, as alleged by the Middle Belt and Southern
Elders Forum, the names of candidates from the North consists of
only Muslim Judges. No single Christian Judge, featured in the
list. Describing the list as appalling, the forum noted, “it is
quite surprising that, of the 20 candidates on preferred list, all
the candidates picked from the North exclude Christians and with
three Khadis on board for a court that needs experts in various
areas of law, including customary law.” The forum, while
threatening a law suit, firmly asserted “we cannot accept that a
multi-ethnic and religious country is being treated in this way. It
is therefore, demanded that the National Judicial Council (NJC)
should trash the FJSC list immediately for the original list
prepared by the President of the Court of Appeal.” This is
embarrassing enough.

Second, the list is most uninspiring. Many of the Judges are
relatively unknown. And, regrettably, some of those in the list,
whose names ring bell, can easily be associated with one political
case or another, in which the current government had received
favourable judgements or convictions of perceived political
enemies. It is, therefore, clear that the FJSC’s list might have
been a veiled attempt designed to reward such Judges. A particular
Judge on the priority list, is known to have failed the security
test in the last exercise. The list, in effect, reads more like a
sop to judicial patronage than to legal proficiency, and a
disingenuous abdication to wholesale quota rather than merit. The
list, on this score, stands discredited.

The PCA’s List

On the other hand, it is said that there exists, a particular
list of the President of the Court of Appeal, Justice
Dongban-Mensem (PCA), which was compiled in strict compliance to
the NJC Guidelines. Documents of nominated candidates were
dutifully screened. Committees of eminent Justices of the Court of
Appeal were set up to scrutinise the candidates on the basis of
their qualifications, quality of their judgements, performance,
judicial skill, knowledge of law and needs of the court. The
candidates were accordingly rated. The shortlisted candidates that
emerged through this rigorous exercise were said to have been
presented to FJSC, but for some politically-motivated reasons,
rejected in a very controversial manner. It is baffling that the
highly revered PCA was somehow unable to stand by her list, and had
to bow to the FJSC’s questionable antics of the political
manipulations and horse-trading.

It is a sad commentary that unity of purpose or synergy is
lacking between the Court of Appeal and the FJSC, over an exercise
as important as appointment of Justices of the Court of Appeal. The
existence of two divergent lists in the exercise, demonstrates a
scenario of a house divided against itself. It also depicts the
existence of differences that became irreconcilable between the
Court of Appeal President and FJSC. This requires the urgent
dispassionate intervention of the National Judicial Council, given
its pre-eminent position as the topmost supervisory body of courts
and judicial body in Nigeria. It is hoped that the NJC would not
wholly surrender to FJSC’s shenanigans, and shirk her own
supervisory and regulatory responsibilities to the entire
judiciary.

It is also curious, as can be observed from the list circulating
all around, that only members of the Bench were nominated for
appointment to the Court of Appeal, to the exclusion of the Bar and
Academia. By recommending only members of the Bench for
appointment, the FJSC has obviously acted in bad faith, and in
contravention of Rule 3(1) (b) of the NJC Guidelines. One way by
which the scope of the capacity of our appellate courts,
particularly, the Court of Appeal and the Supreme Court can be
broadened, is to inject senior members of Bar including those in
the Academia to the courts.

Role of the Judiciary

The Judiciary, it bears repetition, is an important arm of
government. It exclusively plays the prominent role of settling
disputes among citizens and governments. It determines the rights
of individuals and governments. It is also saddled with the
constitutional responsibility of providing essential checks on both
the executive and legislative arms. The art of dispensing justice,
is also undoubtedly a sacred power with grave responsibilities.
Every decision of a Judge has consequences. Every error, even an
unintentional one, can have serious negative effects for the
parties and the society at large. The Nigerian Judiciary at this
critical stage of its history needs justices who are honest,
hard-working, conscientious, brave, patient, cultivated,
intellectually curious and gifted with an intuitive sense of
justice; men and women who carry the gravitas of judicial officers
with all the boldness, dignity and nobility possible. Only a
process of selection and appointment devoid of politicisation,
ethnicity, and nepotism can secure this.

Recruitment Process

Every Nigerian, including members of the NJC, knows that the
quality of judgements coming from Nigerian courts are no longer as
unimpeachable as in the past. The NJC should indeed, be disturbed
that increasingly, the intellectual capacity of Judges in Nigeria
is dwindling, with jurists of global standard – in character and
learning – remaining in abysmal short supply. The first step
towards filling this yearning gap, is the enthronement of the
recruitment process of Judges that would lead to the appointment of
brilliant and qualified jurists, where a 60:40 ratio in favour of
merit is maintained. This is strongly recommended.

A solid Judiciary that enjoys public confidence is an essential
feature of any successful democracy. Several studies have shown
that countries with strong rule of law credentials, tend to be more
economically stable. Most theories of judicial independence also
highlight the significance of a credible judicial selection system,
as a key and indispensable element of judicial independence.
Therefore, it is extremely important to design judicial selection
mechanisms that produce Judges whose independence, integrity, and
impartiality are not in doubt. Judges are the ultimate guardians of
the law and must be appointed in a manner that engenders public
confidence. Ultimately, Judges are at the very heart of our legal
order, and their decisions can have a long-lasting societal impact.
Only Judges that are a product of fair appointment processes can
apply the law fairly, rationally, predictably, consistently, and
impartially.

Conclusion

It is in the light of the foregoing that the National Judicial
Council is called upon to subject both the PCA’s and FJSC’s lists
to a careful scrutiny, with a view to producing the best Justices
for the Court of Appeal. The criteria for choosing good Judges, are
not difficult to identify. Merit should be the sole criterion.
Surely, various factors such as intellectual capacity, personal
qualities, ability to understand and deal with issues fairly,
amenability to team work etc, can feed into the merit of a
candidate.

Yemi Gbolade, Legal Practitioner, Lagos