Appointment to the Bench – Much Ado about Nothing

by Sam Kargbo

The governance, administration and management of the affairs of a modern state stand on a tripod.  It consists of the making, execution and interpretation of laws. In most modern democratic systems, the three powers are separated, and constituted by separate personnel. The law-making power is generally in the hands of a body of elected persons representing constituencies or districts. Such legislators are generally described as representatives, and bear such other names as parliamentarians in the United Kingdom or Congressmen and Congresswomen in the United States of America.  The power to execute and maintain the laws, which include the maintenance and management of all matters that the lawmakers have the power to regulate, is vested in an elected executive. In many countries, such executives are described as Presidents or Prime Ministers. The power of interpretation and application of the laws, administration of justice and defence of the rule of law, through the adjudication of legal disputes, is given to the judiciary, which consists of the courts and their personnel. This discussion is on the judiciary and, in particular, the appointment of judges and justices into the trial and appellate courts.

The impetus for this intervention is the disturbing trend of objections trailing every cycle of the appointment of judges and justices to the trial and appellate courts. Besides their capacity to undermine the judicial system, what is concerning to me about such objections is that they are not based on any determinable criteria but on the basis of standards canvassed by the objectors. The public is often inundated with accusations of manipulation of the appointment process and appointment of incompetent persons to the bench from people who, though far removed from the process, believe that their self-created standards are better than the statutory prescriptions.

Let me make the point that the powers, functions, methods of appointment, discipline and training of judges and justices should be of concern to every citizen and national of a country. The importance of the role of the judiciary as an unbiased and courageous interpreter of the law, defender of the rule of law and the fundamental rights of the individual, and dispenser of justice and provision of refuge and safe haven for the oppressed common man through fair public trials cannot be overemphasized. Within the context of the crucial nature of the role of the judiciary in the democratic process and the maintenance of law and order, the call for court administration and the quality of judges and justices to be of high professional standards can hardly be faulted. Judges and justices are supposed to be role models of the society and, as such, should, in terms of character and personality, be above the average standard in their respective societies. Unlike the personnel of the executive and legislative branches of government, justices are closer to the people, and highly visible. They are the symbol of the quality of justice in a country.  They must, therefore, be accountable to the public in terms of their moral and ethical values. This is why it is said that there is no guarantee of justice except the personality of the judge.

The deepening of democracy, creation of strong democratic institutions for sustainable democracy, rule of law and good governance, law and order, protection of the fundamental rights of the individual, and indeed, the protection of life and property are largely dependent on an independent judiciary with qualified and qualitative judges and justices. The beauty of the wordings and letters of the constitution and statute books is brought alive by the judges and justices who form the pillar and personify the courts that are vested with the judicial powers of the state. The provisions of the constitution, which is the organic law and all the laws of the land, bear no meaning unless those given to them by judges and justices. These give them extraordinary powers, and responsibilities to individuals and the state in general. It is, therefore, natural for people to show concern about influences and tendencies that may prevent them from conducting their judicial duties competently, freely and autonomously. Judges and justices must not be exposed to pressures and influences that can prevent them from upholding the right of every citizen and national to fair public hearing or trial. Judges and the entire legal system must be credible and trustworthy to court confidence and support from the society. Litigants and the society must not be in doubt about the moral standards and professional competence of a judge or justice. Public confidence in the judiciary is part of the most important human capital or resources of a country.

Now, returning to my concern, I agree that it is difficult to put a ring around what one can call the necessary or core values and qualities of a judge or justice. The law books understand this difficulty. That is why the constitution prescribes qualifications and the method of appointment of persons to each and every court that it established.  The appointments are layered for quality control and assurance. I will illustrate with the Supreme Court, which is the apex and court of final appeals in Nigeria. Its decisions are infallible and binding on the entire legal system and polity. It is, by the books, the most powerful institution in the country. It has the power of life of death.

The Supreme Court is established by the Constitution to consist of the Chief Justice of Nigeria, and not more than 21 justices. The appointment of the Chief Justice of Nigeria and that of the other justices of the Supreme Court is to be made by the President on the recommendation of the National Judicial Council, subject to the confirmation of appointment by the Senate. A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years. The constitution that established the court did not add any other qualification for the appointment of a lawyer to the Supreme Court, but critics and objectors will always raise arms whenever there is a basis for appointment of persons to fill vacancies in the Supreme Court.

It is becoming a rigid tradition to appoint justices of the Court of Appeal to the Supreme Court. I do not want to join issues with that tradition, but I can state that any justice of the Court of Appeal is, by the standard and prescription of the constitution, qualified for appointment to the Supreme Court. I, therefore, do not see where the accusations of appointment of unqualified persons to the Supreme Court is coming from.

The appointment of justices to fill vacancies in the Court of Appeal is being distracted by hues and cries of manipulation of the process and appointment of unqualified persons. Meanwhile, the process of appointment is the same as that of the Supreme Court and the qualification is twelve years post-call.

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