If the drafters of the Nigerian Constitution envisaged a situation such as currently playing out regarding judicial appointments, they would perhaps have made a provision to have acting Supreme Court Justices.
Since his assumption of office as President in May 2015, Major General Muhammadu Buhari (retd.) has exploited constitutional provisions which gives room for heads of courts to be appointed in acting capacity, to inexplicably delay the appointment process.
The Constitution empowers the President to make judicial appointments to federal courts based on the recommendation of the National Judicial Council.
But Buhari’s consistent pattern of unexplained delays in the handling of the appointments has ensured that no head of court appointed by the regime since 2015 ever stepped into office in substantive capacity without first acting for a period.
Sadly for the Justices of the Supreme Court, who consistently groan about a huge workload, there is no constitutional provision that allows candidates that have been recommended by the NJC to lend helping hands in acting capacity, pending when the President would clear them for substantive appointment.
Buhari’s regime inherited a Supreme Court of 17 Justices in May 2015.
This was a good number that was only short of four to make the court’s full complement of 21 Justices.
But instead of reaching the full complement, the number has rapidly declined to 12, while the number of appeals regularly filed at the court remains ever-increasing.
Under the Buhari regime, 10 Justices have retired from the apex court’s bench, between November 2016 and April 2020.
Conversely, only five have been appointed between November 2016 and January 2019, leaving the number of Justices at its current balance of 12.
It is noteworthy that a minimum of four Justices will also be exiting the apex court’s bench in the next two years.
While Justices Olabode Rhodes-Vivour and Sylvester Ngwuta will be retiring as they attain their mandatory retirement age of 70 in 2021, Justices Mary Odili and Ejembi Eko will follow suit in 2022.
If this trend of fast-declining number of Justices of the Supreme Court is not quickly checked with adequate replacement at the right time, it means that by the time Buhari leaves office in May 2023, the number of Justices of the Supreme Court will be eight.
This is despite that three Justices of the apex court, including the incumbent Chief Justice of Nigeria, Justice Tanko Muhammad, will be retiring shortly after Buhari leaves office in May 2023.
The last appointment to the Supreme Court bench was in January in 2019, when Justice Uwani Abba-Aji joined the bench.
But in 2019 alone, three Justices, including the immediate-past CJN, Justice Walter Onnoghen (retd.) exited, a development that has brought the number of Justices of the apex court to its current 12.
The trend is gradually pushing the system to a situation where emergency appointments, with the tendency of sacrificing quality and competence on the altar of speed, will be the only way out.
The foreseeable situation will result in to bringing new Justices on board en mass, a development that will likely see new Justices outnumbering the old ones on the bench.
This will be an unhealthy situation for the apex court where it is necessary for new Justices to have some time to understudy senior colleagues, compare notes with them and learn from their wealth of experience before their retirement.
Buhari’s culture of delays
Buhari himself appeared to be conscious of the need to have a Supreme Court with a full complement of 21 Justices. Hence, in June 2019 when the apex court was having 16 Justices, Buhari wrote the CJN, Justice Tanko Muhammadu, to “initiate in earnest the process of appointing additional five Justices of the Supreme Court of Nigeria to make the full complement of 21 Justices” as provided by the Constitution.
Following the President’s request, the NJC initiated the appointment process and at the end of it, recommended four Justices of the Court of Appeal to him for appointment to the apex court’s bench.
The recommended candidates, according to a statement issued by the NJC’s Director, Information, Mr Soji Oye, at the end of the council’s meeting held on October 22 and 23, 2019, were Justices Adamu Jauro, Emmanuel Agim, C. Oseji, and Helen Ogunwumiju.
It is almost eight months down the line, Buhari has yet to forward the names of the candidates to the Senate for confirmation, and no explanation has been offered for the curious delay.
This pattern of undue delays first manifested under the Buhari regime when the then CJN, Justice Mahmud Mohammed, retired on attaining age 70 on November 10, 2016.
Prior to the coming on board of the Buhari regime, successive CJNs were inaugurated in substantive capacity by the sitting President on the day of the retirement of their predecessors.
The tradition changed with the first CJN’s appointment made by Buhari.
Despite that Justice Walter Onnoghen (retd.) was recommended to him by the NJC on October 13, 2016, Buhari waited till the retirement of his predecessor, Justice Mohammed, on November 10, 2016, to appoint Onnoghen as the acting CJN.
Onnoghen had to act as the CJN for four months because of Buhari’s unexplained delay in forwarding his name to the Senate for confirmation after the recommendation by the NJC.
Similarly, on October 23, 2019, the NJC recommended Justice John Tsoho for appointment as the Chief Judge of the Federal High Court, and Justice Benedict Kanyip as the President of the National Industrial Court.
But Justice Tsoho, who took over as the acting Chief Judge of the Federal High Court on July 26, 2019, remained in that capacity for about five months, until he was appointed on December 13, 2019.
For Kanyip, he took over as the President of the NIC on October 1, 2019 and was not substantively sworn in until December 13, 2019.
Tsoho’s predecessor, Justice Adamu Abdul-Kafarati, who took over as the Chief Judge of the FHC in September 2017, acted for nine months before he was substantively appointed in June 2018.
Recently, the NJC, on April 23, 2020 recommended Justice Monica Dongban-Mensem, as the President of the Court of Appeal, but she was not confirmed until last week.
The incumbent CJN, Justice Muhammad, has been the luckiest under the Buhari regime, as he had his recommendation by the NJC ratified by Buhari, confirmed by the Senate and he was eventually sworn in as the substantive CJN within the month of July 2019.
Similar to the delay being suffered by the appointment of four candidates recommended for the Supreme Court bench, the last set of 12 Justices appointed to the Court of Appeal bench in June 2018 had to wait for seven months for their recommendation by the NJC to be cleared by Buhari.
In the same vein, a list of 33 nominees for the bench of the High Court of the Federal Capital Territory sent to Buhari by the NJC in April this year will clock two months by the end of June on Buhari’s table.
Although some lawyers petitioned Buhari, asking him to reject the list of the 33 nominees for being a product of an alleged faulty process, not a word has been said about it by the Presidency one and a half months after the list was sent to the President.
More workload, declining hands
The declining number of Justices of the Supreme Court runs in contrast with the increasing workload of the court.
At the valedictory court session held in honour of a retiring Justice of the court, Justice Amiru Sanusi, on February 3, 2020, the CJN, Justice Muhammad, expressed worry over the continued decline in the number of Justices of the court without replacement.
The CJN said, “You will recall that barely seven weeks ago, being Thursday, December 12, 2019, we assembled here to honour our brother, Justice Kumai Bayang Aka’ahs in a similar valedictory session. That ceremony painfully occasioned the depleting of our ranks at the Supreme Court. In a similar fashion, this session, too, is billed to further drastically reduce the number of Supreme Court Justices to as low as 13.
“This is not cheering news in view of the ever-increasing number of appeals that flood the court on a daily basis.”
A Senior Advocate of Nigeria, Mr Chino Obiagwu, expressed worry over the handling of process of judicial appointments by Buhari.
He said, “We have always subscribed to having a full complement of the Supreme Court. There is no reason not to have a full complement, not only because it will make cases to move faster, but also because it will save the health of those who are there, because they are completely overworked. The volume of cases coming to the Supreme Court is not what a panel or 12 Justices should handle.
“The Constitution, in its wisdom, recommends a full complement of Justices; so why should we not have a full complement of the Supreme Court Justices?
“You can see that they are very overworked. When they were doing political cases, see the number of election judgments they produced.
“The court is no longer consistent as it ought to be. Supreme Court Justice should be able to have time and resources to produce judgments that will be policy statement of law. All that they do now is just to settle disputes and quickly conclude because they don’t have time.”
Obiagwu also said the judiciary was not the only institution bearing the brunt of delayed appointments under the Buhari regime
He said, “So many parastatals such as the National Human Rights Commission are without boards. So, how do you expect them to perform optimally? No reason has been given why there should be delays.
“Look at the Niger Delta Development Commission, such an important agency, does not have a board up till now. Rather than setting up the board, they appointed an interim management committee which is not known to law.
“So, I think that the regime should be more law-abiding and follow statutes so that there can be proper internal governance in the affairs of the agencies.”
Another lawyer, Tosin Ojaomo, blamed the problem on the judiciary.
He said, “The problem is the judiciary itself. There is a statutory role for the NJC to play.
“Until the NJC stands up to fulfill its statutory obligation, things will remain the same. The judiciary is not under the executive. It is an independent arm of government.
“The NJC needs to take a second look at itself and it has been our campaign that the NJC should stand up for the cause of justice in Nigeria because they have a constitutional role to play and nobody can play the constitutional role for them.”
On his part, another lawyer, Sani Abubakar, said Buhari’s handling of judiciary appointments smacked of double standard.
He said, “It seems the Buhari government is characterised by double standards. For instance, you saw the delay in sending Justice Dongbam-Mesem’s name to the Senate for confirmation. The same thing played out in Onnoghen’s appointment. But look at how they quickly confirmed Justice Tanko Muhammad. It leaves a lot to be desired, let us speak the truth before God. It is injustice. You give the impression that you are somehow slanted towards your section of the country.
“That is the impression and it is unfortunate especially at a time when the world is condemning prejudice and bigotry in the aftermath of the killing of George Floyd in the United States of America. This should not be tolerated or condoned. People should speak out against it.”