By Chidi Odinkalu
“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
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