Why recent nominations of lawyers to Supreme Court bench failed

The Nigerian Bar Association (NBA) has called on its eligible members to apply for the six openings on the Supreme Court bench as recently announced by the Chief Justice of Nigeria (CJN), Tanko Muhammad.

PREMIUM TIMES reported that Mr Muhammad, in line with the relevant rules, had sent letters calling for nominations to fill the six slots to the NBA and other relevant judicial officers, heads of courts, among others.

The CJN’s letter indicates that the six available slots are to be filled by nominees from five of Nigeria’s six geo-political zones.

Appointing lawyers from the bar directly to the Supreme Court bench is a rare occurrence in Nigeria, even though it is supported by the constitution.

What has become the norm, however, is preserving Supreme Court appointments for only judges of the Court of Appeal.

But this new call to the NBA for nomination of lawyers to fill the vacancies at Nigeria’s highest court, is not the first.

In 2017, some accomplished lawyers in the country were nominated by the NBA for appointment to the Supreme Court bench. The nominations never sailed through.

Walter Onnoghen, former CJN, had in a similar fashion like his successor, Mr Muhammad, written to the NBA, requesting that it nominated eligible members of the Bar for consideration into the apex court bench.

In response, the then NBA President, Abubakar Mahmoud, a Senior Advocate of Nigeria, forwarded names of nine eligible candidates to the then acting CJN and Chairman of the Federal Judicial Service Commission (FJSC), Mr Onnoghen, for appointment as justices of the Supreme Court.

The nominated lawyers were – former President of the NBA, Olisa Agbakoba (SAN), Anthony Ikemefuna Idigbe (SAN), Yunus Ustas Usman (SAN), Babatunde Fagbohunlu (SAN), Miannaya Aja Essien (SAN), Awa Uma Kalu (SAN), Professor Awalu Hamish Yadudu, Tajudeen Oladoja and Ayuba Giwa.

According to the NBA, the short-listing followed a rigorous selection process done by a committee chaired by Mr Mahmoud (SAN), with eight other eminent lawyers as members.

However, the nominees comprising advocates and academics in the legal profession, never got to the Supreme Court, an issue Mr Agbakoba resurrected at a recent Justice Summit of the NBA in Abuja.

Lawyers at the summit were unanimous in calling for reforms in the justice sector, particularly in the appointment of judges.

Why lawyers appointment didn’t sail through

Mr Agbakoba reminded the CJN’s representative at the event, John Okoro, a Justice of the Supreme Court, of how the exercise, which was aimed at transforming justice delivery at the apex court, was truncated.

“My Lord, you know that I was one of the lawyers who were nominated for appointment to the Supreme Court,” Mr Agbakoba said.

“But that exercise never sailed through,” the former NBA President noted while making his remarks at the technical session of the justice summit in January in Abuja.

In his response, Mr Okoro said the appointment of judicial officers used to be a “secretive” exercise owing to the judiciary’s conservative nature.

“Outstanding lawyers used to be approached by judges for appointment to the bench, with most of them turning down such offers,” Mr Okoro explained.

“However, these days, the process of appointment of judges has become so competitive. If there are vacancies for appointment on the bench, there are judges who are already in the system. So, how do you go outside fishing for people (lawyers) to come in?,” Mr Okoro wondered while responding to Mr Agbakoba.

Opposition to the appointments of lawyers directly to the Supreme Court bench has come mainly from among judges, who see it as a threat to their career progression.

This school of thought considers it as unfair that lawyers, who spurned joining the bench from the lower rungs, would be rewarded with the highest bench of the land to the detriment of the chances of judges of lower courts who made the early choices of pursuing the judicial career in the hope of climbing gradually to Supreme Court bench someday.

It also maintains that such a development would rob experienced judges of the Court of Appeal the opportunity to be elevated to the apex court, adding, “accomplished lawyers,” mostly SANS “can’t have the best of two worlds – the bar and the bench.”

Many have also argued that it would cause instability in the Supreme Court and cause unnecessary disaffection among the judges of the court and within the judiciary in general.

But those who argue for appointing Supreme Court judges directly from the bar, including lawyers in the academics, say it will broaden the diversity of thoughts and experience much needed by the court.

Criteria for appointment to the Supreme Court

To be eligible for appointment to the bench of the Supreme Court, an applicant must be a legal practitioner of not less than 15 years. The same applies to whoever is to be appointed as the Chief Justice of Nigeria.

Section 231 subsection (3) of the 1999 Constitution as amended distinctly states: “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 practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.”

The foregoing provision created the window for any legal practitioner who has plied the trade for not less than 15 years to be appointed as a Justice of the Supreme Court.

History of lawyers who made it to the apex court

On the strength of the foregoing constitutional provisions, two jurists — Teslim Elias and Augustine Nnamani — were appointed from the Bar to the Supreme Court bench.

Mr Elias who was the Attorney-General of the Federation was appointed the CJN.

The question on the lips of many in view of the new call on lawyers to apply to be appointed to the Supreme Court bench is if Nigerian judges are ready to tone down their opposition to it.

Without judges developing a new outlook on the matter, the new call on lawyers to apply to join the Supreme Court bench is dead on arrival. This is given the fact that the National Judicial Council (NJC) which plays the most crucial roles in judicial appointment process is dominated by serving and retired judges. And even within the NJC lawyers who are members have limited roles in the appointment process.