Red herrings over the appointment of new judges

Red herrings over the appointment of new judges

Friday, May 22, 2020 9:56 pm



By Charles Kumolu

In an unprecedented move, a group, Open Bar Initiative (OBI), in a petition to President Muhammadu Buhari, urged the president to discountenance the list of newly appointed judges sent to him by the National Judicial Council (NJC).
This, the group said, is predicated on the alleged “insider dealing”, to wit, appointment of relations of serving and former Judicial officers.

However, l find this move quite curious and dangerous to the independence of the judiciary.

Apart from the fact that the group unduly pilloried the NJC, it needs be noted that the processes of appointment into the Bench doesn’t start with the NJC but the respective Judicial Service Commissions, whether Federal, State or FCT, which first sifts through applications and conduct initial due diligence before being passed on to the NJC.

While the group did not raise objection on the minimum of 10 years post-call experience, which is the minimum constitutional requirement as enshrined in section 255 of the 1999 constitution, as amended, it’s grouse is on the filial relationship between some of the nominees and some serving and former judges, which to me, is grossly unfair.

One would have thought that the group would have petitioned the NJC as the appointing authority, strangely, it directed its petition to the presidency and that is my worry.

Meanwhile, these are the same people that shout themselves hoarse on the preservation of the independence of the NJC, the same people want the president to overrule the NJC. So if tomorrow, the NJC finds a judge culpable and recommends his/her retirement, and the president overruled the NJC, wouldn’t a precedence had been laid with this complaint letter to the president?

Recall that in 2011 when the NJC recommended the suspension of Justice Ayo Salami as the president of the court of Appeal, some lawyers prevailed upon the former president Goodluck Jonathan to override the recommendation of the NJC but Jonathan, realising the long-term implication of such a move, refused to interfere. Rather, he approved the recommendation of the NJC.

These same complainants, who shout about preserving the independence of the judiciary, should not be allowed to approbate and reprobate at the same time.

The independence of the NJC in the appointments and discipline of judicial officers should not be sacrificed on the altar of narrow-minded expediency.

There are various steps taken in the appointment of judges.
If any group feels aggrieved, the right channel of ventilate such grievances is the NJC and not the executive arm.

Interestingly, these complainants were quite vociferous in condemning the executive interference in the removal of former Chief Justice, Walter Onnoghen. Suddenly, the same set of people are calling for the interference of the Executive in the appointment of judges, a process that falls squarely within the purview of the NJC.
Therefore, inviting the president to void that process would amount to shooting themselves in the foot and an assault on the independence of the judiciary.

The critical point that ought to be addressed is this – Did these nominees meet the constitutional requirements of qualification for appointment as judges? If yes, then all these mundane issues of being relations of serving and/or retired judges hold no water. This is mere red herring. You cannot short circuit the career path of certain people just because of filial relationships. It doesn’t add up.
* Kumolu wrote from Lagos

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