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“Fools at the top would cause damage to any system not to talk of the fragile institutions of a fledgling democracy.”—Charles Archibong, A Stranger in Their Midst: A Memoir, 97 (2021)

IN the last week of April, 2024, Chief Justice of Nigeria, CJN, Olukayode Ariwoola, co-convened and chaired a “National Summit on Justice” in Abuja, Nigeria’s federal capital. Addressing the participants “with a profound sense of responsibility”, the CJN invited them “on a journey of comprehensive reform to ensure that justice is not only dispensed but also perceived to be dispensed fairly and impartially.” More specifically, he asked them to identify “gaps and inconsistencies that hinder the efficient administration of justice.”

 No issue is as afflicted with such gaps in knowledge and inconsistencies of practice and yet so dispositive of outcomes in justice administration as judicial appointments in Nigeria. Yet, it is the one area about which little is public and debate is discouraged.

On 21 December 2023, the Senate consented to the appointment of 11 new Justices of the Supreme Court, all of whom used to be Justices of the Court of Appeal. In addition to the 11 vacancies, mortalities and retirements together combined to create a total of 22 vacancies that the NJC approved to be filled on the Court of Appeal bench. On 24 January 2024, the President of the Court of Appeal, PCA, Monica Dongban-Mensem, with consent of the National Judicial Council, NJC, led by the CJN, wrote to all heads of courts in the country to request nominations to the Court of Appeal.

 Three years earlier, when they met on judicial elevations to the Court of Appeal on 19 November 2020, the Federal Judicial Service Commission, FJSC, had approved a rule proposed by Monica Dongban-Mensem, that “judges that had not spent up to five years on the Bench” and “those who would not spend up to five years if appointed before retirement” should not be considered.

 On 2 April 2024, the same FJSC approved 22 nominees by Monica Dongban-Mensem for appointment to the Court of Appeal, including six from the North-Central; five from the South-East; four from the South-West; three each from the North-West and South-South; and one from the North-East. To reprise the formulation of Chief Justice Ariwoola, this list is full of “gaps and inconsistencies.”

 One of the nominees from the North-Central is Eleojo Enenche from Kogi State. He was only appointed a judge of the High Court of the Federal Capital Territory, FCT, in November 2021 from his then position as personal assistant to the Chief Judge of the FCT High Court. Enenche spent nine months attached to Olukayode Adeniyi, a senior judge of the same High Court. At less than three years as a judge of the FCT High Court, few of his cases would have come to judgment and it is unlikely that any of his judgments would have been tested on appeal. On any objective reading of the applicable criteria, this is at best a profoundly premature preferment.

 Eleojo Enenche is not the only one in this category. Sister-in-law to a senior politician and former junior to an influential Senior Advocate of Nigeria, SAN, Victoria Nwoye, the nominee from Anambra State, became a lawyer in 2005 and worked in the Customary Court system in Abuja before being sworn in as judge on 2 December, 2019. She is currently reading for an LL.M at the Nnamdi Azikiwe University in Awka, the state capital. Of the 30 judges currently in service in Anambra State High Court, she is last at number 30 in seniority and clearly below five years as a judge.

 Born on 9 March 1959, Henry Aja-Onu Njoku, the nominee from Ebonyi State, does not have five years before mandatory retirement at 70. Nominated from Lagos State, Lateef Lawal-Akapo was born 6 August, 1959. From Nasarawa State and born on 2 November, 1959, Abdullahi Liman is currently the third most senior judge in the Federal High Court. None among these three has judicial shelf-life to spare for the Court of Appeal.

 The applicable rules of the NJC require all judicial nominations to be accompanied by a “detailed medical certificate of fitness issued by government hospital or medical institution.” Although health information is ordinarily confidential, this requirement makes the health status of judicial nominees a matter of public interest and for good reason too.

In June 2023, Nyesom Wike, the husband of one of the nominees from the South-South, Eberechi Nyesom-Wike, publicly announced that she had been diagnosed with cancer in 2022. Ordinarily, cancer survivorship is computed at the threshold of five years post-diagnosis. It is proper and human to wish a cancer patient full recovery. It is a brutal and relentless disease. But it is doubtful that advancing a cancer patient to an equally relentless judicial office necessarily enhances the cause of their well-being (unless the administration of justice is not the primary consideration).

On this list of nominees to the Court of Appeal, Oyo State, which already has two Justices of Appeal, will receive another two, the only state to be so favoured. This will bring to four the number of Justices from the state from which the out-going CJN hails. By contrast, Ogun State, which is also in the South-West, has only one Justice of Appeal – Adebukola Banjoko. In this round of appointments, they will get none.

  To understand the perverse incongruities in the Court of Appeal preferments, it is relevant to mention that there is also a contemporaneous process of hire into the bench of the FCT High Court. That list contains a daughter-in-law of the CJN, a daughter of the PCA, and a daughter of the current CJ of the FCT, among many judicial daughters on it.

 It does not take a major feat of insight to figure out that the CJ of the FCT High Court, the PCA and the CJN are clearly doing mutual back-scratching in judicial appointments.

 It also disincentivizes honest, hard-working judges.

This is also a clear violation Rule 11(iv) of the Code of Conduct for judicial officers in Nigeria which requires that “in the exercise of his administrative duties, a judicial officer should avoid nepotism and favoritism.” The irony is that Olukayode Ariwoola would not be able to get away with this tendency if he were to be Adajo Agba (Chief Justice) of Iseyin or of Oke-Ogun. That is a sad commentary on the current state of the judiciary that he will leave behind when Olukayode Ariwoola departs from office on 22 August 2024. 

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu 

COMMUNIQUE OF THE NATIONAL SUMMIT ON JUSTICE 2024

Distinguished Colleagues,

Recall that on April 24–25, 2024, the Federal Ministry of Justice, the National Judicial Council (NJC), and the Nigerian Bar Association (NBA) jointly organised the National Summit on Justice 2024.

The summit interrogated the state of the nation’s judiciary, particularly the issues of judicial appointment, discipline of judicial officers, administration, budgeting, and funding of the judiciary, and eradicating delays in the administration of justice.

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Also, the Honourable Attorney General of the Federation and Minister of Justice, Mr. Lateef Fagbemi, SAN, presented the Revised National Policy on Justice 2024–2028, which was adopted by the stakeholders at the summit.

The communiqué jointly issued by the Chief Justice of Nigeria, the Honourable Attorney General of the Federation, and the NBA President at the end of the summit is herewith attached for your reference.

COMMUNIQUE OF THE NATIONAL SUMMIT ON JUSTICE 2024 Download

Thank you.

Akorede Habeeb Lawal
National Publicity Secretary

Amid the greatest crisis of judicial authority since Nigeria’s independence in 1960, President Bola Ahmed Tinubu on 23 August 2024 swore in an Acting Chief Justice of Nigeria (CJN). For the new Chief Justice, this challenge is also an opportunity to articulate an agenda for reform that can restore public trust in the judiciary. Such an agenda must address the following:

• Ensuring merit-based judicial appointments;
• Addressing the problem of abuse of interim injunctions, ex-parte orders, and conflicting judgments;
• Enhancing judicial discipline and accountability;
• Addressing the crisis of political cases, election petitions, and judicialization of politics; and
• Reform of the Supreme Court.

1. Judicial Appointments

The National Judicial Council (NJC), which oversees judicial appointments and is led by the Chief Justice of Nigeria, has been severely criticism for mishandling judicial appointments. In 2020, for instance, it authorised 15 vacancies for the Federal Capital Territory High Court but nominated 34 for appointment. The NJC has also been accused of retrenching its Procedural Rules for judicial appointments, thereby undermining merit-based appointments; compromising judicial integrity; and breeding a loss of confidence in the judiciary. Against this background, it is of the utmost importance that the new CJN commits explicitly to a policy of restoring integrity and merit to judicial appointments through the introduction of transparent processes of advertisement of vacancies; nomination of candidates, interviews, short-listing, and selection.

2. Conflicting Judgements and Abuse of Interim Injunctions

Rule 3 (3.5) of the Judicial Code of Conduct provides that “a Judicial Officer must avoid the abuse of the power of issuing interim injunctions, ex parte.” Although the standards governing interim injunctions are very well established in Nigeria, these are often either disregarded or abused without consequences. Equally, courts of co-ordinate jurisdiction routinely issue conflicting orders that seem almost calculated to damage the institution of the judiciary. It is suggested that:

• Priority should be accorded to monitoring and reporting interim or ex parte orders by trial judges. There should also be clear consequences attached to a breach of the Judicial Code of Conduct.
• Judicial appraisals should be both quantitative and qualitative. Accordingly, they should proactively address evidence of ethical deficits in the work or output of judges, focusing on adherence to ethical guidelines and the quality of judicial decisions.
• There should be clear Practice Directions on the management of jurisdictional overlaps. The structure and scope of such overlaps should be discussed at the All Nigerian Judges Conference and the Practice Directions should be uniform across all the court systems in the country.
• The NJC should establish a central database or easily searchable platform for judges to share information on ongoing cases.

3. Discipline and Accountability

Preserving the dignity and integrity of the judiciary hinges on upholding discipline and accountability which is in turn essential for preserving the institutional authority of the judicial branch. If the judiciary lacks credibility, its authority suffers irredeemably. Tragically, this eventuality may already be upon us. A recent survey by the United Nations Office of Drugs and Crime (UNODC) and the National Bureau of Statistics (NBS) finds the judiciary as the recipient of the highest per capita rates of bribery, ahead of both the Nigeria Police Force and the Nigerian Customs Service. The damage that this does to the institutional credibility and authority of the judiciary is incalculable. To reverse this, it is suggested that:

• Disciplinary processes within the judiciary should be both prompt and decisive and dispositions should be calibrated to be proportionate to the seriousness of the misconduct found.
• Reports on disciplinary investigations by the NJC should routinely be transmitted to law enforcement agencies for follow-up.
• The CJN should initiate public consultation leading within six months to an announcement of measures designed to address the escalating patterns of judicial corruption as documented by the UNODC-NBS Corruption in Nigeria Report 2024.

4. Election Petitions and Political Cases

Political cases and election petitions now increasingly threaten the foundations of fairness on which the judicial system should be anchored. Of 248 judgments issued by the Supreme Court in the last judicial year, 74 or about 30 per cent were “political cases.” At a similar occasion only two years ago, his predecessor reported that the court’s portfolio of 269 appeals disposed of included 139 civil appeals, 102 criminal appeals, and 28 “political cases”. The volume of election petitions has become an adverse charge on the credibility of the judiciary and an intolerable burden on both judges and non-political court users alike. Underlying this burden is a judiciary that has installed itself as the sole dispenser of electoral mandates, with judges routinely substituting their views for the votes of the people contrary to the considered recommendations of two presidential panels on electoral reform led respectively by former Supreme Court Justice, Bolarinwa Babalakin in 1986 and by former Chief Justice Mohammed Lawal Uwais in 2008. It is suggested that:

• The Chief Justice should initiate reform of the election dispute resolution system to ensure the implementation of the Babalakin Commission and Uwais Panel recommendations concerning the need for Courts to respect and not subvert the will of the people in elections.
• The category of “political” cases should be reviewed and court systems should be encouraged to establish Alternative Dispute Resolution (ADR) mechanisms for political disputes.
• Consideration should be given to utilising retired senior judges for the administration of election dispute resolution, so that serving judges may be preserved for regular court work.
• Election petitions should be disposed of before inauguration. The current practice whereby candidates are sworn in despite pending petitions against them facilitates judicial capture.

5. Reforming the Supreme Court
6. The Supreme Court is overburdened and its Justices are paying for this with their lives. In the 30 months from the beginning of 2021 to the middle of 2023, three Justices of the Supreme Court tragically died in service. This period coincided with a revolt by Justices against the conditions of work and judicial well-being at the Supreme Court. These two developments underscore very clearly the urgent need for reform of the Supreme Court. As the apex court, the Supreme Court should settle the most rarefied questions of law and legal policy in Nigeria. Instead, it is burdened with inconsequential appeals and crippled by priority to political cases. The result is a court with an ungovernable docket which also endangers the constitutional promise of fair trial “within a reasonable time.” Structural and procedural enhancements needed to improve the efficiency and effectiveness of the Supreme Court will include:
7. The National Assembly should review and re-enact the Supreme Court Act and amend the Constitution to limit the kinds of cases or appeals that can be introduced to the Supreme Court.
8. The full digitisation of the Supreme Court is overdue. Judgments should be publicly available on the day they are delivered and it should be possible to do filings at the court remotely.
9. The Court needs to implement a structured system of judicial clerkships which would help to relieve Justices of some of the tedium of research and writing.
11. Conclusion
12. Far from being exhaustive, this five-point agenda only highlights pressing priorities for the incoming Chief Justice of Nigeria. There remain important issues, such as the question of whether the NJC has continuing relevance; what should be its composition (if it continues to exist), and whether or not it should continue to co-exist as it presently does with the Federal Judicial Service Commission (FJSC).
13. As the African Commission on Human and Peoples’ Rights declared in 2009: “Courts need the trust of the people to maintain their authority and legitimacy. The credibility of the courts must not be weakened by the perception that they can be influenced by any external pressure.” Success in judicial reform will depend on engaging a broad constituency of stakeholders, especially citizens, civil society, and court users. By fostering a collaborative approach to judicial reform, the Chief Justice of Nigeria can construct the foundations for reclaiming public trust.