NIGERIA @ 66: Judicial Appointments – Between constitutional rigour and political executives’ stranglehold

THE independence of the Nigerian judiciary has once again been thrown into the crucible of public debate. Amid growing concerns over conflicting judgements and perceived political bias in some election and commercial litigations, stakeholders are asking a critical question: does the process of appointing judges inherently compromise the temple of justice?

While the 1999 Constitution (as amended) outlines a seemingly airtight, multi-layered mechanism to ensure only the finest legal minds ascend the Bench, critics argue that the ultimate power wielded by elected officials, specifically the President and state governors, leaves a major loophole for political capture.

Constitutional hurdle

On paper, the journey to the Bench is a rigorous race managed by the National Judicial Council, NJC, and the respective Federal or State Judicial Service Commissions. 

The process begins with nomination and screening at the Judicial Service Commission, JSC, level, which recommends qualified candidates to the NJC.

The NJC, currently driving a strict integrity policy, subjects these nominees to intense scrutiny. Background checks are extensive.

The Department of State Services, DSS,  is legally mandated to comb through its archives to flag any adverse intelligence or security files. Simultaneously, anti-graft agencies like the Economic and Financial Crimes Commission, EFCC, and the Independent Corrupt Practices and other related Commission, ICPC, trace financial petitions and asset declarations.

Furthermore, names are published for public petitions, and local branches of the Nigerian Bar Association, NBA, are interrogated for peer reviews. Nominees must also present a certified Medical Certificate of Fitness from a government hospital.

Legal hurdles

The legal requirements remain clear. To sit on the High Court or FCT Court Bench, a legal practitioner must have at least 10 years of post-call experience. The Court of Appeal demands 12 years, while the Supreme Court and the office of the Chief Justice of Nigeria, CJN, strictly require a minimum of 15 years.

Executive stranglehold

However, the constitutional  requirement creates a bottleneck where politics inevitably collides with merit. After the NJC completes its rigorous screening and submits its final list, the power to appoint shifts squarely to the executive. For Federal Courts, the President makes the appointment, while the State Governor holds the pen for State High Courts. Though top-tier positions require confirmation by the Senate or State Houses of Assembly, these legislative bodies are often extensions of the ruling executive’s political machinery.

Legal pundits and civil society groups have repeatedly claimed that this final executive clearance is where the independence of judges is compromised. Critics argue that governors, in particular, treat the appointment of State Chief Judges and High Court judges as political patronage.

“When a Governor handpicks who becomes a judge, or deliberately delays the swear-in of an NJC-recommended nominee until concessions are made, an unwritten debt is created,” argued a Senior Advocate of Nigeria, who spoke on the condition of anonymity. 

“When the political interests of that Governor or his party eventually come before that same judge in an election petition or a revenue dispute, the pressure to deliver a ‘favourable’ ruling is immense. He who pays the piper inevitably dictates the tune,” the senior lawyer added.

Instances abound where governors have rejected NJC recommendations under the guise of “security reports” or lack of geographical spread, only to push forward candidates aligned with their political camps. 

This loophole, analysts claim, explains the sudden surge in questionable ex-parte orders and the erosion of public confidence in the judiciary. The polity is littered with instances of governors obtaining frivolous ex parte orders and injunctions from state high courts in their domains.

Way forward

As Nigeria grapples with the challenges of consolidating its democracy, the consensus among judicial reformers is that the absolute power of elected executives over judicial appointments must be reviewed.

Until the NJC is empowered to appoint and swear in judicial officers independently without executive assent, the judgements emanating from our courts may continue to carry the heavy, and inescapable shadow of political influence.