Wednesday, June 8, 2016
To:
1.
The President and Commander-in-Chief
of the Armed Forces,
Federal Republic of Nigeria,
Aso Villa,
Abuja.
2.
The Senate President,
National Assembly Complex,
Three Arms Zone,
Abuja.
3.
The Chairman,
National Judicial Council,
Abuja.
Your Excellencies and My Lords,
THE RECENT CLAMOUR FOR APPOINTMENT OF THE CHIEF JUSTICE OF
NIGERIA AND JUSTICES OF THE SUPREME COURT STRAIGHT FROM THE BAR: A CALL FOR CAUTION
I have decided to address this open letter to the three critical institutions above for three reasons:
(a)
By
virtue of Section 231 of the 1999 Constitution of the Federal Republic
of Nigeria, these institutions are saddled with
the responsibility for the appointments of the Chief Justice of Nigeria
and Justices of the Supreme Court. In both cases, the National Judicial
Council recommends, the President approves and the Senate confirms.
(b)
In
the wake of the recent curious clamour for the appointment of these
distinguished jurists to be made directly from the
Bar, very senior members of the Bar and those who should know better,
have kept an ominous silence, which makes some of us very uncomfortable,
hence the need to speak up now.
(c)
The Justices of the Supreme Court who are directly affected or are likely to be affected by this proposal, cannot
join issues publicly with these groups and individuals orchestrating this issue, and this creates an imbalance in the debate.
Admittedly, there is no constitutional restriction as to where those to
be appointed as Justices of the Supreme Court or Chief Justice of
Nigeria could be picked, save for the criteria of a fifteen-year
post-call as a barrister and solicitor in Nigeria. However,
traditionally, over the years, Justices of the Supreme Court have been
elevated from the Court of Appeal and the most senior Justice of the
Supreme Court has always been appointed the Chief Justice of Nigeria.
This seamless, apolitical and non-controversial mode of succession at
the Supreme Court over the years, especially since the civilian era, has
produced a Supreme Court that has engendered respectability and
dignity. It has also emerged as a rancour-free institution.
There are only two instances in the past where the Chief Justice of
Nigeria has been picked from outside the Supreme Court. These are the
cases of Justices Adetokunbo Ademola and Teslim Elias. However, these
two cases must be seen in the context that, at the
material time, their appointers were not authorities that had any deep
partisan political interests like we have today. One was during the
colonial era and the other during the military era.
However,
in this era of deeply divided political interests, any attempt to
introduce politics into the appointment of the Chief Justice of Nigeria
would
inevitably introduce deep divisions and rancour in the Supreme Court.
It would also compromise the independence and integrity of the Supreme
Court.
One
cannot be deluded that such an appointment would not be preceded by
intense lobbying, recruitment of politicians into the scheme and some
disgusting
genuflection before the powers-that-be by the candidates jostling for
the position. And once appointed, such a CJN will have automatic
reciprocal loyalty to his benefactors and appointer, thereby opening up
such a revered office as that of the CJN to political
manipulation. We can then safely say goodbye to an independent Supreme
Court and, by implication, our budding democracy.
The suggestion that appointments made directly from the Bar will add
vibrancy (whatever that means) to the Supreme Court cannot be more
paramount than the need to ensure that Justices at that level are
substantially detached from various interest groups in
the society. As much as many members of the Bar have enormous
integrity, it is a fact that by the nature of their job, they invariably
get drawn into defending various interests and highly-placed
individuals in the society. Over the years, lawyers develop
deep ties with these various interests and individuals. When appointed
to the Supreme Court as Justices or even the CJN, these interests cannot
be shaken off overnight.
But in rising through the judicial hierarchy over the years to the
Supreme Court, those Justices who were first appointed as Magistrates or
High Court Judges begin to shed the weight of societal ties and
interests gradually before they get to the Supreme Court.
One other advantage of rising through the judicial hierarchy to the
Supreme Court is that the very many attributes of a judicial officer
become evident and tested as the progression takes place. These are the
attributes of productivity, hard work, patience,
integrity and sagacity. There is no greater interview for an aspiring
Justice of the Supreme Court than to look into his records at the lower
judicial level and see the display of these attributes mentioned above.
But there is hardly any trusted yardstick
to test these attributes in a member of the Bar other than perception.
The Justices who rise through the judicial ladder are also known to live
a spartan lifestyle, having been used to earning salaries and other
allowances over the years. Successful lawyers, on the other hand, are
used to earning fat fees from big briefs. How
easy would it then be for a very successful lawyer appointed straight
to the Supreme Court or as CJN to adjust to earning a relatively meager
salary and adjusting to this spartan lifestyle?
It is also a fact that productivity is encouraged at the Court of Appeal
and lower courts because the justices and judges at those levels aspire
to move up the judicial ladder. They are encouraged to do this because
the level of their productivity is normally
used as criteria to elevate them. If this is now jettisoned, it would
dampen their spirits and enthusiasm and would invariably lead to a drop
in hard work and productivity at those levels. Everyone would then
resort to politics, rather than hard work, to climb
the judicial ladder.
Your Excellencies and my Lords, I cannot fathom what is meant by “introducing vibrancy and integrity to the Supreme Court” by
the advocates of this change. Are they telling us the present Justices
of the Supreme
Court lack these qualities? The Supreme Court has handed down some of
the most radical judgments over the years that have re-shaped our
democratic landscape. If that is not “vibrancy”, what then is
“vibrancy”? If these distinguished jurists did not have integrity,
how come they have given so many judgments against the ruling parties
in the past and present, which have aided the survival of the opposition
in Nigeria? If not for judicial intervention, how would the present
ruling party have made it to power? I find this
rationale of “introducing vibrancy and integrity to the Supreme Court”
extremely insulting and demeaning to the present crop of distinguished
jurists at the Supreme Court.
Additionally, even if a member of the Bar to be appointed directly as
CJN has tremendous integrity, so long as the process of appointment is
mired in politics, it diminishes that integrity and brings him under the
apron strings of the government of the day.
And that, really, is what these proponents of the new system seek to
achieve. It is just a brazen attempt by politicians to invade the
Supreme Court and take firm control of its leadership. This is totally
unacceptable.
Any
attempt to pander to this clamour would create a warped system where a
total stranger and outsider would come and exercise headship over the
Justices
of the Supreme Court. That would be totally unworkable. It will
engender rebellion, dissent and lead to a divided house. We can then say
goodbye to an independent Supreme Court. And we can then also say
goodbye to democracy.
Finally, I am by this open letter calling on every senior member of the
Bar, every leading light in the legal profession, every distinguished
retired jurist – all those who know the system so well and can speak up –
to please do so NOW before it is too late.
The only sanctuary left for the politicians to invade is the Supreme
Court. We must all fight tooth and nail to guide and guard it jealously.
There is more to this clamour than meets the eyes; there is certainly
an ulterior motive in this call.
Your Excellencies, my Lords, these are the dangers I see ahead. I am done.
Yours most trusted,
FESTUS KEYAMO, ESQ.
Head of Chambers
