Judges’ Appointment: Of El-Rufai’s Proposal And Ayade’s Preference

To say there’s no love lost between the National Judicial Council (NJC) and the governors of Cross River and Kaduna states in the persons of Ben Ayade and Nasir El-Rufai respectively is to state the least.

The grouse of the two governors against the council is its insistence on application of the age-long rules and tradition in the appointment of the Chief Judge and judges of the state High Court.  While Ayade wants the seniority tradition governing the appointment of the Chief Judges be skipped for him to choose whom he likes to head the judiciary in his state, El-Rufai is asking the NJC to hands-off the duty of participating in the recruitment of judges for the state High Court in the country. NJC on its own seems to be telling the governors that their proposals or preferences are nothing but illegalities and constitutional breaches.

On May 19, 2020, while performing the swearing in four newly appointed High Court Judges in Kaduna state, Governor El-Rufai, said the state had been seeking for the appointment of the high court judges in the past three years.

According to El-Rufai, “though, only four were appointed, the state requires about 20 judges to compliment the current ones, who are overworked.

“Each of our High Court in the state has a minimum of 200 cases, which is too much for them to handle and therefore, affect the administration of Justice.

“To this end, the State needs more judges as we have the capacity to make their work easier with the provision of housing and vehicles, among other necessary things to make their stay memorable,” the governor said.

He, however, said the only bottleneck is the National Judicial Council bureaucracy, which unduly delay appointment of judges.

“In my opinion, the NJC should only select judges for the appellate and Federal courts and leave the selection of judges for State high courts to an equivalent Council at the State level, either the State Judicial Service Commission which now appoints Magistrate or the State Judicial Council which select judges.

“I do not believe that the appointment of high court judges at the State level should be within the purview of the NJC

“We are trying to operate a unitary judiciary when we have a Federal Executive and Legislature, this needs to be corrected,” he stressed

For six months running, Cross River State has remained without a substantive chief judge, as the National Judicial Council (NJC) and the Governor Ben Ayade administration have flexed muscles over the matter.

Twice, the NJC recommended to the state government to confirm and swear in Justice Akon Ikpeme as substantive Chief Judge being the most senior judge on the bench, and same number of time, the House of Assembly, allegedly being prompted by the governor, rejected the nominations.

In withholding their confirmation, the lawmakers cited security risk, going ahead to approve the second most senior jurist, Justice Maurice Eneji, in an acting capacity during plenary on March 2, 2020.

Consequently, the governor swore in Justice Eneji the follow day, saying it was “imperative as law and nature abhor vacuum”, and subsequently the state government forwarded his name to the NJC for a formal nomination and recommendation to be appointed a substantive chief judge.

But the NJC had since written to the state government declining to recommend Eneji on the grounds that he is the number two judge in the state, insisting that their earlier recommendation of IKpeme stands, hence the government should reconsider Ikpeme’s case and appoint her as the substantive chief judge, as the basis for her rejection by the legislative chamber was not tenable.

The main reason for rejecting Justice Ikpeme by Governor Ayade and his state Assembly is that Ikpeme hails from Akwa Ibom State, a state that was carved out of Cross Rivers State in 1987. She was born in Calabar, lived her life therein and married to a person from Cross Rivers State.

Justice Ikpeme has a stronger claim to Cross Rivers State than to her ancestral home of Akwa Ibom State. Her father served in the public service of Cross Rivers State, rising to the position of Permanent Secretary. She entered the state’s public service on graduation, rising to the Director of Public Prosecution. She has been claiming her husband’s state of origin when Akwa Ibom State was created and continued to serve in Cross Rivers State.

In May 2019, the House of Representatives passed a bill that enables married Nigerian women to choose their state of origin. The bill gives married women the option of choosing the indigeneship of either their father or husband. The bill is to “amend the Federal Character Commission (Establishment, etc) Act, 2010, Laws of the Federation of Nigeria, Cap F7 to give married women the option of indigeneship and for related matters”

Section 15(2) of the 1999 Constitution states that: “Accordingly, national integration shall be actively encouraged, whilst discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or ties shall be prohibited.

The constitution upholds the rights of every Nigerian regardless of ethnic or gender backgrounds. Section 42 of the 1999 constitution holds that:-  “[a] citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person, be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions [nor any privilege or advantage] to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject.

Besides, women in Nigeria have been claiming the states of origin of their husbands, just as many judges among them have risen up to the apex court on that premise. The current Chief Judge of Bauchi state, Justice Rabi Talatu Umar, is an indigene of Kogi state. But by reason marital status and working experience, she rose to become Chief Judge of that state.

Justice Darnley Alexander served as the Chief Justice of Nigeria (CJN) from 1975 to 1979. He was a Jamaican by birth. He came to Nigeria in 1957 on the invitation of the premier of the Western Region, Obafemi Awolowo who had appealed to the Colonial Office in London to help source a legal draftsman; Alexander then served the region in various capacities. He was Legal Draftsman, Western Region, Nigeria from 1957-1969 and was acting Director of Public Prosecutions in 1958. In 1960, he was appointed the Solicitor General and Permanent Secretary of the regional Ministry of Justice and in 1963, he was made Queen’s Counsel. In 1964, he was appointed a judge in the Lagos High Court and later in 1969, he was appointed Chief Justice of the South Eastern State now Cross River and Akwa Ibom states. And subsequently, he was appointed Chief Justice of Nigeria in 1975.

However, NJC has approved the extension of the appointment of Justice Maurice Eneji as the Acting Chief Judge of Cross River State for another three months. The extension shall take effect from June 3, 2020, and end on September 2, 2020, in accordance with the provisions of Section 217(5) of the 1999 constitution as amended. It is hoped that both Governor Ayade and the Cross Rivers State House of Assembly would allow for reasons to prevail by allowing Justice Ikpeme be appointed Chief Judge of the state.

By virtue of the provision of Paragraph 21 of Part One of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria, as amended, the NJC shall have power to ‘’©recommend to the governors from among the list of persons submitted to it by the State Judicial Service Commission person for appointments to the offices of the Chief Judges of the states and Judges of the High Courts of the state …’’

Judges of the High Courts of all the different States of the Federation are appointed by the Governor of the respective State, on the recommendation of the National Judicial Council. The individual must have been qualified as legal practitioners for at least 10 years.

Governor El-Rufai said only four judges were appointed for the state when his state in actual fact needed 20 judges. But he failed to tell how many he requested to be appointed.

He stated also that it took NJC 3-4 years to appoint the four judges for his state, which requires him to substantiate the allegation on further facts on what happened in between.

‘’Revised 2014 NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria’’ requires the state judicial service commission to comply with the laid down Rules in its advice to NJC  for nominations or recommendations of candidates for appointment of judges for the state high courts.

Rules Two for instance requires that whenever the state want to appoint new judges, chairman of the state judicial service commission shall notify his state governor stating the number of judges he intends to appoint.

A copy of the notice sent to the governor shall be forwarded to the NJC Secretary, who shall upon receipt of the notice advice the CJN in regard to the number of judges that can be appointed pursuant to the budgetary provision of the council for the year. Upon consideration of the advice, the CJN shall notify the chairman of the state judicial service commission or the chief judge that the exercise may be proceeded with or not, or may be proceeded with, but with specified reduction in the number of the judges proposed to be appointed.

Under the new, more rigorous and transparent rules, applicants or shot listed candidates of the states are thoroughly subjected through requisite intellectual and integrity tests, in order to ensure that only the most competent persons make it to the Bench.

For instance, they screened of active successful practice at the Bar, including satisfactory presentation of cases in Court as a Legal Practitioner either in private practice or as a Legal Officer in any Public Service. Besides, satisfactory and consistent display of sound and mature judgment in the office as a Chief Registrar or Chief Magistrate are required.

For every vacant seat to be filled, the governor is expected to present a preferred candidate and one or two candidates on reserve. According to a source close to NJC, he said more often than not, those placed on reserve end up performing better than the governors’ preferred candidates. ‘’There were several instances when those on preferred and reserved lists didn’t meet the basic requirement for appointment as judicial officers. You can’t even believe they went through the Law School or pass the Bar examinations. The Council won’t have an option other than to ask the state or governor to re-present other set of candidates’’, he said.

Governor El-Rufai said that the amendment to the constitution be made such that NJC should only appoint judges for the appellate and Federal courts and leave the selection of judges for State high courts to an equivalent Council at the State level.

According to Barrister Abanika Muktar, what the governor failed to realize is that his state high court judges would still seek elevations to the appellate courts. ‘’The council is naturally concerned with the fate of the judiciary in the future. If the origin of justices of the appellate courts in the country is dirty, the justice system of the country would become dirtier. If NJC is not involved in the appointments of judges of the state high courts, one should expect all manners of people making it to the bench at the state high courts’’, Abanika said.

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