Need to Reengineer Our Judicial Institutions By Olisa Agbakoba

Background of the Crisis: Recent happenings in the judiciary concerning the Chief Justice of Nigeria and the President of the Court of Appeal have obviously brought the judiciary and the institutions of the legal profession
into serious disrepute.

The media has not helped because it has taken sides without
understanding the issues and they have tended to overdramatize the
crisis. I am taking this unusual step, even though I may break some ethical boundaries, to comment on this rather sensitive issue. There is a need to put the records straight. I will be guided by the truth and nothing else. I don’t owe anybody anything.

At 58, ex-president of the Bar, grandfather of three grand children,
I fear nobody. I am therefore not interested in taking sides with
either the CJN or the President of the Court of Appeal. They are not
going to give me any briefs and they are not going to feed me, but
it’s important that all the facts are out. This issue cannot be discussed without recognizing the personal issues of our two senior justices, relating to the Sokoto State governorship appeal, where the Supreme Court, wrongfully, in my respectful view, intervened in a matter that was strictly an election petition. The Sokoto Election Petition Panel is the Court of final Appeal on election issues, under the general administration of the President of the Court of Appeal. The second issue of course relates to the accusation against Justice Salami by Senator Omisore and whether or not bribes were given to deliver judgment. These were the personal issues that unfortunately coloured the recent crisis. What was in my view an ordinary issue of appointment of justices became emotionalized and sensationalized and heavily misrepresented by the media.

When justices are to be appointed their opinion is not necessarily sought. You look for people who are qualified and it goes through a process.
For the Supreme Court, the process starts at the Federal Judicial Service Commission.

It will collate a list, distribute among serving Supreme Court Justices and the President of the Court of Appeal only. Comments and remarks are received and a shortlist drawn. Contrary to public perception, Salami was not the only person considered for nomination to the Supreme Court. There were indeed a substantial number of justices, like Mary Odili, Ngwuta and several others.

There were about 16. The Federal Judicial Service Commission does not “promote” justices; it simply collates the list and then ranks the performance of the justices.

It is remarkable that Justice Salami took part in this scoring. He therefore knew about the process. He also assessed some of the justices as he himself was assessed. So it is not accurate to represent in the media that the President of the Court of Appeal had no idea at all about what was going on. Whether the issue was on the FJSC agenda or not, is in my view very important. It was not. This was a mistake but the important point is that Justice Salami was aware that he was being considered, because he took part in the exercise to nominate Judges.

Does a Judge Have a Right to Decline Promotion?
After this first process at FJSC level, a shortlist on the basis of the zones nominated Judges represent is sent to the NJC for further consideration. The NJC will look at it and approve or decline to approve.

I therefore don’t see how Justice Salami would have thought that he had been promoted when NJC had not even looked at the list. When NJC reviewed the list, it noted as a first issue that Mr. Justice Salami
 declined, and recognized his right to decline. This is where Salami is correct. You can’t force him. He said “I prefer like my worthy predecessors to remain in the Court of Appeal”. That would have been the end of the matter. Had it not been dramatised in the media. It could have been a matter simply discussed at the meeting of NJC. Regretably the misrepresentation of the story in the media appears to have brought the judicial institution into disrepute. I am troubled by this.

Elevations in Last 30 Years
Another matter I would like corrected is that to elevate Justice Salami to the Supreme Court is a demotion.

I took time to review appointments to the appellate court in the last
30 years. I was struck by the almost near refusal or neglect of Chief
Judges and Presidents of the Court of Appeal to go to the Supreme
Court. There is something terribly wrong here. I don’t know of any CJ of the Federal High Court, going back to the time of Justice Sigsmund Lambo to Anyaegbunam, to Belgore, to Ukeje, Dan Abutu, who accepted elevation to the Supreme Court. Why! A Supreme Court Justice is superior to any other Judge in Nigeria. So,
why are they declining to go there? Even the great Justice Oputa went up to the Supreme Court only at the tail end of his career. He preferred to sit in Imo State as CJ. The same with Justice Babatunde Ebenezer Craig who was a long serving CJ of his State. He just went up to serve in the Supreme Court for only six months.

Then there was Justice Nwokedi, long serving CJ of Anambra State, who
went to the Supreme Court for six months having preferred a long
tenure as CJ of Anambra. Something is clearly and fundamentally wrong. The personal quarrel between Salami and Katsina-Alu has simply escalated issues and opened up issues.

We must stop elevating junior judges to the Court of Appeal, when their Chief Judges are not going, but sitting back and pushing junior judges forward.
I think of someone like Justice Roseline Bozimo, the fine Lady Chief
Judge of Delta State now retired! Many junior judges from Delta went to the Court of Appeal. Is there anything particular with being the Head of a Court?

Way Forward

We need to re-examine the institutions of the judiciary. In the beginning, there was 100% insulation of the judiciary from the executive because during the military we didn’t want interference. This is maybe the time for us to re-consider how judicial institutions are run. There has to be a better structure of appointments of appellate justices. This is the point the NBA has been making. We need to introduce Senior Advocates of Nigeria to Appellate courts. We need to encourage Heads of Courts to accept elevation to the Supreme Court. In closing, we must isolate the personal issues between the CJN and the President of the Court of Appeal and look at the institutional problems. It was the failure of the institution that caused this drama and not the personal issues between Justice Salami and and Chief Justice Katsina-Alu.
At the end of the day the media has made a mountain out of a molehill. But somebody told me that without the fight in the media we wouldn’t have known what was happening.

Mr. Agbakoba is former President of the Nigerian Bar Association

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