The recently publicized list of nominations for appointment as judges to the Lagos High Court is already attracting public debate and criticism. That is to be expected. The judiciary as the last hope of the common man must necessarily attract the attention of all sections of the society who are per force stakeholders in the administration of justice thus have both a stake and a say in the men and women appointed to preside over the affairs and disputes of others. Accordingly, the concerned authorities, the Governor, Chief Judge, State-Judicial commission, House of Assembly and indeed the potential judges must take all the comments and criticisms in their stride and in good faith. The situation cannot be otherwise particularly in a mega city/state like Lagos, the nation's commercial capital.
Some of the most pungent criticisms are:
• The list of Nominees standing presently at 28 names is too long and unwieldy.
• By far too many interests are represented on the list, the Magistracy, the official Bar, the party (Action Congress), the Eleko (Oba of Lagos), Ikorodu Oga, Awori; Badagry (Egun) and several other interests.
• Too many women Nominees.
• The list is tilted against private legal practitioners and court going public officers in favour of bureaucratic lawyers and technocrats.
• The presence on the list of a few nominees with disciplinary records.
• If the numbering of the list is anything to go by, then the positioning of nominees is very questionable.
• The absence of consultation with the local branches of the Nigeria Bar Association (NBA) before the list of Nominees was announced.
How much of these criticisms is justified?
The best approach to start the discussion of this very important topic in which all of us, whether as lawyers, judges, administrators and even ordinary citizens are all stakeholders is to look at the mode of appointment of judges.
IN THE PAST
From my modest studies of Autobiographies. Biographies, memoires and even valedictory speeches of retired judges the common thread that ran through the testimonies of these retired judges is that they were nominated for judicial appointment by Chief Justices/Judges and other senior judges who had watched and observed their conduct in and out' of the court room over time and consulted with other judges and sometimes the leadership of the local bar about the suitability of a particular lawyer for appointment as a judge. Even those from the official Bar were more or less subjected to the same scrutiny. It was not merely a matter of seniority in status of rank that determined suitability for appointment so a Director who did not pull his weight or was altogether unsuitable as a judge could be by passed for a promising Deputy. The lawyers of those days had very little to do with their nomination and appointment as judges. In fact from many of the accounts I read there was always this great feeling of surprise and even trepidation when a lawyer who has never attended a judge in chambers except to move ex-parte applications is informed by a court registrar that the Chief Judge or Administrative Judge will like to see him: what have I done wrong? Did I say anything harsh in Justice Integrity's court? Or is the content of my pleadings or affidavit contemptuous of court etc. Only to be told by the judge that his name has been nominated for appointment to the Bench.
The above informal approach seemed to have worked wonders all the same going by the remarkable achievements of our judges of the days of old v/ho were highly regarded in all parts of the common Law jurisdiction. The above approach accords with the practice in the UK According to .Dame Elizabeth Lane Q.C- First Female English High Court Judge in her Autobiography - Hear the other side- Audi Alterem Partem. "The message was that I was to go to the House of Lords at 2 0' clock that afternoon as the Lord Chancellor (then Lord Gardiner) wished, to see me. My heart stopped beating what could I have done in the county court which could possibly merit a rebuke from the Lord Chancellor himself? Well, perhaps I had been a bit too sharp with that solicitor and an order I had made was perhaps some what unorthodox, but I was sure that I had done nothing which would deserve dismissal. Justice Lane picks up the narrative later "After a few minutes, in which I had not been given the slightest hint of what was to come. I was shown in to the Lord Chancellor. He was very agreeable and then said he wished to appoint me a High Court Judge assigned to the Probate, Divorce and Admiralty Division. I was stunned, so much so that, to my shame, I had to ask him to repeat what he had said".
As in everything else the American experience is completely different from ours and from that of other common law jurisdictions. The appointment of the (State) County Court Judge and (Federal) District Court Judge varies from state to state. In some states, the appointing authorities can nominate any lawyer directly to Bench either from the academia, legal practice even Corporate in-House Counsel while in some others lawyers actually contest elections to be appointed as Judges. Imagine lawyers printing manifestoes and soliciting for votes to sit on the Bench!!! The appointment to the United States Supreme Court,, which the
Americans call, the U.S. High Court is however more grueling as the Presidential Nominees must face rigorous congressional drilling as in the case of Justice Clarence Thomas and his antagonist Prof (Ms) Anita Ward. Justice Clarence barely got true, while many have been known to fail this grueling Senatorial hearings and their nominations turned down.
However, even this has its downward side as a Judge called Associate Justice apart from the U.S. Chief Justice gets appointed to the United States by virtue of his political leaning. Therefore a listing of the United States Supreme Court Justices from 1789 till date will tell you at a glance the political leaning of a judge. Imagine seeing Ademola Adewale JSC (PDP) and Adesina Ogunlana JSC (A.C)!! (I am not a card carrying member of any registered political party neither do I know Ogunlana to belong to any). Apart from academic interest, it is obvious that the American example is not at all relevant to us in Nigeria.
To return to our theme about the appointment of judges; it is a fact that the old method of appointing judges has since been discarded no thanks to a variety of reasons.
First is the issue of interest groups. Unlike in the past when merit alone was the key factor in the appointment of judges, nowadays merit has to be balanced with other socio-political considerations. These factors which are part of the intractable national question entail that various interest groups in society are represented at all levels of government and administration including the judiciary so as to give everyone a sense of belonging. Thus, where any group appears left out the cry, of marginalization- that is cry of exclusion rents the air. Even the nation's constitution recognizes this by the provision of the highly contentions federal character in Section 14(3) of the 1999 Constitution - the policy which also goes by other names such as Quota System, Zoning and Rotation has been the source of much controversy in the land. In direct relation to the appointment of judges Lagos State presents a peculiar case, because of its status as the former capital of the nation and its cosmopolitan nature it is home to all Nigerians particulars indigenes of neighbouring states most especially Ogun State. Many of these classes of Lagosians, unlike indigenous Lagosians have the unique privilege of wearing two caps, where necessary: The cap of Lagos State, and at other times the Cap of their indigenous states. This dual citizenship is not available to the indigenous Lagosian who has Lagos and Lagos alone his state of origin.
To complete matters, the several sub-ethnic groups in Lagos, the Isale-Eko, Brazilian/Sieria-Leone descendants, Aworis, Ikorodu, the Epes and Eguns (Badagry) naturally expect to be accommodated in the key areas of public life including the judiciary.
Now that appointment to the higher Bench is as comfortable as it is competitive, the level of competition for the High Court Bench is better imagined. The challenge is to balance these various interests with the need to ensure only the best sit on the High Court Bench to dispense justice.
To further compound the problem these are the days of partisan politics, when the interest of party faithfuls cannot be swept aside with a wave of the hand.
PRIVATE V OFFICIAL BAR RIVALRY
For as long as any one can remember there is always a keen but healthy rivalry of members of the official Bar from the Ministry of Justice, Government Departments and Agencies and Magistracy on one hand and private legal practitioners on the other. But in recent times perhaps due to the advent of partisan politics when the party in power automatically controls the personnel of the official Bar, the balance if heavily tilted in favour of the official Bar and the present list of 19 members of official Bar to 9 legal practitioners constitutes almost proof beyond reasonable doubt of this unhealthy tendency.
THE BATTLE OF THE SEXES:
Ordinarily in Lagos as in all parts of South-Western Nigeria, the women have always competed shoulder to shoulder with the men in all areas of life. And from historical even pre-colonial times till present day Lagos women have boasted of as much distinctions as the men. Remember the Madam Efunseke Tinubu, Lady Oyinkan Abayomi, Dr. Abimbola Awoliyi and more relevant to our discourse, Stella Marke, First Lady Magistrate, Justice Omo Eboh First Lady Judge, Prof Jadesola Akande, Mrs. Hairat Balogun, Justice Roseline Omotosho, several Judges serving and retired including the present Chief Judge Justice I. E. Akande, Mrs. Funke Adekoya SAN, Mrs. Ayo Obe and numerous legal practitioners. The ability of our women for even the highest judicial posts in the land has never been in doubt. But at all times the competition with the men has been on equal footing, a list of 19 female nominees to 9 male nominees is anything but equal.
Also suspect is the numbering of nominees: Unless of course the numbering is random. In which case those down on the list are at a disadvantage since the relevant agencies may conveniently focus on those listed above at the expense of those below for the few available sits on the Bench.
On the other hand, if the numbering reflects the official rating or ranking of the nominees, it is with due respect a most questionable and disturbing list. A classic illustration is Mr. Christopher Ayodeji Balogun as No 19 on the list.
A seasoned legal practitioner with excellent pedigree, I dare to say even unguardedly and without solicitation that Mr. Balogun has all it takes to be elevated to the highly coveted rank of SAN. There is no basis whatsoever, for Mr. Balogun to rank lower than No. 3 in any well drawn up list of nominees for judicial appointment not only in Lagos State but any part of Nigeria.
Equally disturbing is the presence on the list of lawyers with disciplinary records some. of whose matters are yet to be disposed off.
The final query in respect of the list of nominees is the noticeable attitude on the part of the relevant authorities not to consult deeply with the local branches of the NBA before purporting to draw up a list of judicial nominees. This is even more disturbing in the face of the resolution at the last Annual Bar Conference Lagos in August, 2009, that the NBA. has to be closely involved in the appointment of judges even with the right to nominate people though the relevant authorities have the final say on who becomes a judge.
CONCLUSION:
It is obvious that the appointment of judges in Lagos State is a very serious affair but with the required sense of responsibility, a credible and transparent approach can still be fashioned out for the appointment of judges in Lagos State that will maintain the delicate balance between ensuring merit and accommodating the various interests .in the state. But the recently published list of 28 nominees is very far from the ideal. It should be completely discarded and a new one drawn up after due consultations.
QUARE:
In the lighter mood, now that the process of nominating .judges is faulty, do we abolish the institution of judges, as some have advocated in respect of the rank of SAN?
Some of the most pungent criticisms are:
• The list of Nominees standing presently at 28 names is too long and unwieldy.
• By far too many interests are represented on the list, the Magistracy, the official Bar, the party (Action Congress), the Eleko (Oba of Lagos), Ikorodu Oga, Awori; Badagry (Egun) and several other interests.
• Too many women Nominees.
• The list is tilted against private legal practitioners and court going public officers in favour of bureaucratic lawyers and technocrats.
• The presence on the list of a few nominees with disciplinary records.
• If the numbering of the list is anything to go by, then the positioning of nominees is very questionable.
• The absence of consultation with the local branches of the Nigeria Bar Association (NBA) before the list of Nominees was announced.
How much of these criticisms is justified?
The best approach to start the discussion of this very important topic in which all of us, whether as lawyers, judges, administrators and even ordinary citizens are all stakeholders is to look at the mode of appointment of judges.
IN THE PAST
From my modest studies of Autobiographies. Biographies, memoires and even valedictory speeches of retired judges the common thread that ran through the testimonies of these retired judges is that they were nominated for judicial appointment by Chief Justices/Judges and other senior judges who had watched and observed their conduct in and out' of the court room over time and consulted with other judges and sometimes the leadership of the local bar about the suitability of a particular lawyer for appointment as a judge. Even those from the official Bar were more or less subjected to the same scrutiny. It was not merely a matter of seniority in status of rank that determined suitability for appointment so a Director who did not pull his weight or was altogether unsuitable as a judge could be by passed for a promising Deputy. The lawyers of those days had very little to do with their nomination and appointment as judges. In fact from many of the accounts I read there was always this great feeling of surprise and even trepidation when a lawyer who has never attended a judge in chambers except to move ex-parte applications is informed by a court registrar that the Chief Judge or Administrative Judge will like to see him: what have I done wrong? Did I say anything harsh in Justice Integrity's court? Or is the content of my pleadings or affidavit contemptuous of court etc. Only to be told by the judge that his name has been nominated for appointment to the Bench.
The above informal approach seemed to have worked wonders all the same going by the remarkable achievements of our judges of the days of old v/ho were highly regarded in all parts of the common Law jurisdiction. The above approach accords with the practice in the UK According to .Dame Elizabeth Lane Q.C- First Female English High Court Judge in her Autobiography - Hear the other side- Audi Alterem Partem. "The message was that I was to go to the House of Lords at 2 0' clock that afternoon as the Lord Chancellor (then Lord Gardiner) wished, to see me. My heart stopped beating what could I have done in the county court which could possibly merit a rebuke from the Lord Chancellor himself? Well, perhaps I had been a bit too sharp with that solicitor and an order I had made was perhaps some what unorthodox, but I was sure that I had done nothing which would deserve dismissal. Justice Lane picks up the narrative later "After a few minutes, in which I had not been given the slightest hint of what was to come. I was shown in to the Lord Chancellor. He was very agreeable and then said he wished to appoint me a High Court Judge assigned to the Probate, Divorce and Admiralty Division. I was stunned, so much so that, to my shame, I had to ask him to repeat what he had said".
As in everything else the American experience is completely different from ours and from that of other common law jurisdictions. The appointment of the (State) County Court Judge and (Federal) District Court Judge varies from state to state. In some states, the appointing authorities can nominate any lawyer directly to Bench either from the academia, legal practice even Corporate in-House Counsel while in some others lawyers actually contest elections to be appointed as Judges. Imagine lawyers printing manifestoes and soliciting for votes to sit on the Bench!!! The appointment to the United States Supreme Court,, which the
Americans call, the U.S. High Court is however more grueling as the Presidential Nominees must face rigorous congressional drilling as in the case of Justice Clarence Thomas and his antagonist Prof (Ms) Anita Ward. Justice Clarence barely got true, while many have been known to fail this grueling Senatorial hearings and their nominations turned down.
However, even this has its downward side as a Judge called Associate Justice apart from the U.S. Chief Justice gets appointed to the United States by virtue of his political leaning. Therefore a listing of the United States Supreme Court Justices from 1789 till date will tell you at a glance the political leaning of a judge. Imagine seeing Ademola Adewale JSC (PDP) and Adesina Ogunlana JSC (A.C)!! (I am not a card carrying member of any registered political party neither do I know Ogunlana to belong to any). Apart from academic interest, it is obvious that the American example is not at all relevant to us in Nigeria.
To return to our theme about the appointment of judges; it is a fact that the old method of appointing judges has since been discarded no thanks to a variety of reasons.
First is the issue of interest groups. Unlike in the past when merit alone was the key factor in the appointment of judges, nowadays merit has to be balanced with other socio-political considerations. These factors which are part of the intractable national question entail that various interest groups in society are represented at all levels of government and administration including the judiciary so as to give everyone a sense of belonging. Thus, where any group appears left out the cry, of marginalization- that is cry of exclusion rents the air. Even the nation's constitution recognizes this by the provision of the highly contentions federal character in Section 14(3) of the 1999 Constitution - the policy which also goes by other names such as Quota System, Zoning and Rotation has been the source of much controversy in the land. In direct relation to the appointment of judges Lagos State presents a peculiar case, because of its status as the former capital of the nation and its cosmopolitan nature it is home to all Nigerians particulars indigenes of neighbouring states most especially Ogun State. Many of these classes of Lagosians, unlike indigenous Lagosians have the unique privilege of wearing two caps, where necessary: The cap of Lagos State, and at other times the Cap of their indigenous states. This dual citizenship is not available to the indigenous Lagosian who has Lagos and Lagos alone his state of origin.
To complete matters, the several sub-ethnic groups in Lagos, the Isale-Eko, Brazilian/Sieria-Leone descendants, Aworis, Ikorodu, the Epes and Eguns (Badagry) naturally expect to be accommodated in the key areas of public life including the judiciary.
Now that appointment to the higher Bench is as comfortable as it is competitive, the level of competition for the High Court Bench is better imagined. The challenge is to balance these various interests with the need to ensure only the best sit on the High Court Bench to dispense justice.
To further compound the problem these are the days of partisan politics, when the interest of party faithfuls cannot be swept aside with a wave of the hand.
PRIVATE V OFFICIAL BAR RIVALRY
For as long as any one can remember there is always a keen but healthy rivalry of members of the official Bar from the Ministry of Justice, Government Departments and Agencies and Magistracy on one hand and private legal practitioners on the other. But in recent times perhaps due to the advent of partisan politics when the party in power automatically controls the personnel of the official Bar, the balance if heavily tilted in favour of the official Bar and the present list of 19 members of official Bar to 9 legal practitioners constitutes almost proof beyond reasonable doubt of this unhealthy tendency.
THE BATTLE OF THE SEXES:
Ordinarily in Lagos as in all parts of South-Western Nigeria, the women have always competed shoulder to shoulder with the men in all areas of life. And from historical even pre-colonial times till present day Lagos women have boasted of as much distinctions as the men. Remember the Madam Efunseke Tinubu, Lady Oyinkan Abayomi, Dr. Abimbola Awoliyi and more relevant to our discourse, Stella Marke, First Lady Magistrate, Justice Omo Eboh First Lady Judge, Prof Jadesola Akande, Mrs. Hairat Balogun, Justice Roseline Omotosho, several Judges serving and retired including the present Chief Judge Justice I. E. Akande, Mrs. Funke Adekoya SAN, Mrs. Ayo Obe and numerous legal practitioners. The ability of our women for even the highest judicial posts in the land has never been in doubt. But at all times the competition with the men has been on equal footing, a list of 19 female nominees to 9 male nominees is anything but equal.
Also suspect is the numbering of nominees: Unless of course the numbering is random. In which case those down on the list are at a disadvantage since the relevant agencies may conveniently focus on those listed above at the expense of those below for the few available sits on the Bench.
On the other hand, if the numbering reflects the official rating or ranking of the nominees, it is with due respect a most questionable and disturbing list. A classic illustration is Mr. Christopher Ayodeji Balogun as No 19 on the list.
A seasoned legal practitioner with excellent pedigree, I dare to say even unguardedly and without solicitation that Mr. Balogun has all it takes to be elevated to the highly coveted rank of SAN. There is no basis whatsoever, for Mr. Balogun to rank lower than No. 3 in any well drawn up list of nominees for judicial appointment not only in Lagos State but any part of Nigeria.
Equally disturbing is the presence on the list of lawyers with disciplinary records some. of whose matters are yet to be disposed off.
The final query in respect of the list of nominees is the noticeable attitude on the part of the relevant authorities not to consult deeply with the local branches of the NBA before purporting to draw up a list of judicial nominees. This is even more disturbing in the face of the resolution at the last Annual Bar Conference Lagos in August, 2009, that the NBA. has to be closely involved in the appointment of judges even with the right to nominate people though the relevant authorities have the final say on who becomes a judge.
CONCLUSION:
It is obvious that the appointment of judges in Lagos State is a very serious affair but with the required sense of responsibility, a credible and transparent approach can still be fashioned out for the appointment of judges in Lagos State that will maintain the delicate balance between ensuring merit and accommodating the various interests .in the state. But the recently published list of 28 nominees is very far from the ideal. It should be completely discarded and a new one drawn up after due consultations.
QUARE:
In the lighter mood, now that the process of nominating .judges is faulty, do we abolish the institution of judges, as some have advocated in respect of the rank of SAN?
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