FEATURE ARTICLE

EMMANUEL ONYEDI WINGATE, Esq
Senior Associate
Sterling Partnership, Legal Practitioners
Lekki phase 1, Lagos

Executive Oversight in the Appointment of Heads of Nigerian Courts –Recent Developments

1. Introduction
The governance of Nigeria is founded on the principle of separation of powers. Consequently, the Constitution vests legislative, executive and judicial powers in the Legislature, the Executive and the Judiciary respectively. Within the confines of the various roles allocated, the affected arm is independent. To prevent abuse of absolute powers however, the Constitution also inheres the principle of checks and balances i.e. that the various arms exercise limited oversight over the other arms. This article is solely concerned with the executive oversight function of appointment of heads of courts in Nigeria, and even then, is concerned only with the controversies generated over the appointment of the Rivers State Chief Judge (CJ) and the hullabaloo over the recent dillydallying in appointing a substantive Chief Justice of Nigeria (CJN).

2. Constitutional Provision for the Appointment of CJN
The National Judicial Council recommends a candidate for the position of CJN to the President for appointment, subject to Senate confirmation. The only qualification for appointment to this position is that the candidate has been a legal practitioner for fifteen years. Commentators have advanced that qualified persons from outside the Supreme Court can be appointed by the President. Elias CJN is often cited as example of an outsider elevated to the position from a distinguished law teaching career. Notably, he was appointed by a military junta.

Upon construction of the constitution of the Federal Judicial Service Commission which advices the National Judicial Council on persons to be recommended to the President for the CJN position, and the constitution of the National Judicial Council itself that makes the recommendation, it is clear that whatever convention adopted by members of the Federal Judicial Service Commission and the National Judicial Council most of whom are very senior judges, de facto applies to the appointment of the CJN. The acknowledged convention is that the most senior Justice of the Supreme Court is appointed CJN. There is little or no chance that the Federal Judicial Service Commission would advise the appointment of an outsider or that the National Judicial Service Commission would in fact recommend such an outsider. Since as shall soon be seen no appointment of a substantive CJN is possible without the recommendation of the NJC, it follows that the convention of appointing the most senior justice of the Supreme Court is entrenched and should be considered as legitimate additional qualification. 

The Constitution makes provision for the temporary filling of vacancies in the CJN position by the President. Only the most senior justice of the Supreme Court is entitled to appointment as acting CJN by the President and only for a three month period. Section 231(5) provides:
Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection(4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not reappoint a person whose appointment has lapsed.

The above is a raging controversy in Nigeria at the moment. After months of speculation as to whether the President intended to bypass the most senior Justice of the Supreme Court for the CJN position as advised by the Federal Judicial Service Commission and duly recommended by the NJC, the President had failed to forward the NJC’s recommended candidate’s name to the Senate for confirmation but had instead appointed Walter Onnoghen as acting CJN (Ag CJN). Various speculations abound as to the motivation of the President for so acting. The consensus however, is that there is no precedent for the current state of affairs and that same portends danger for judicial independence. Questions have been raised as to whether the President would confirm Walter Onnoghen Ag CJN to the substantive CJN position and what would happen when the three months acting CJN tenure expires?

This article considers that section 231(5) of the Constitution reproduced above is not helpful and in the very least ambiguous. First, is it the intendment of the Constitution that the National Judicial Council be able to recommend to the President that the three month tenure of the Ag CJN be extended?  Second, if the first question is answered in the affirmative is a distinction to be drawn between an extension of the three months tenure of the Ag CJN and the reappointment which is prohibited in the proviso? The key words seems to be ‘cease to have effect’, ‘reappointment’ and ‘lapse’. It would seem that the effect of ‘cease to have effect’ is that the NJC can before the expiration of the three months recommend that the Ag CJN’s tenure be extended with the effect that such tenure does not ‘lapse’ during the extended period. If no recommendation for extension arises during the three month period and the Ag CJN’s tenure lapses, it appears he cannot be reappointed Ag CJN. This leads to another question, what next?

A constitutional crisis brews because while in the first instance it is clear that the President can by executive fiat appoint the most senior Justice of the Supreme Court Ag CJN for three months, bypassing both the NJC and the Senate, it is not clear that the President can appoint further Ag CJNs as soon as the tenure of the Ag CJN lapses nor can the President reappoint the most senior Justice of the Supreme Court to the Ag CJN position. 

There is also the argument that ‘…and the President shall not reappoint a person whose appointment has lapsed’ seems to indicate there are two laps to section 231(5) of the Constitution: the first where the NJC recommends the extension of the three month tenure of the most senior justice of the Supreme Court and the second where the President seems to be imbued with appointive powers to the Ag CJN position subject to his obligation not to appoint a person whose tenure has lapsed.
Resolving the above conundrum is a herculean task which can easily be sidestepped by the President simply following convention and appointing the most senior Justice of the Supreme Court to a substantive CJN position. This article considers however that section 231(5) of the Constitution means no more than that the President can extend the three months tenure of the Ag CJN on the recommendation of the NJC. NJC recommendation or not, the President cannot reappoint the Ag CJN to the position. He can only extend before the tenure lapses with NJC recommendation. This article also considers that NJC approval or not, once the Ag CJN’s tenure lapses, the President cannot appoint any further Ag CJNs and neither can anyone else. If not properly handled, the Federation is clearly headed for a full blown constitutional crisis as occurred in its constituent part of Rivers State not too long ago.

3. Constitutional Dilemma in the Appointment of Chief Judges of the States –The Rivers State Example 
Recently, an impasse arose in Rivers State where the National Judicial Council had recommended the appointment of Justice Daisy Okocha, then most senior Judge of the State High Court as Chief Judge but the then Governor Rotimi Amaechi had preferred  to swear in Justice Peter Agumagu, the then President of the State Customary Court of Appeal as Chief Judge. In the resulting imbroglio, Rivers State was left without a Chief Judge and indeed the courts were closed for well over one year, so much that the Chief Judge of the neighbouring Bayelsa State had to swear in Governor Nyesom Wike, Rotimi Amaechi’s successor as Governor, because the State lacked a Chief Judge. Clearly, the intendment of section 271 of the Constitution is that the concurrence of the National Judicial Council is part of the mandatory requirement for the appointment of a substantive Chief Judge. Thus the Governor could not lawfully appoint a candidate not recommended by the National Judicial Council and supported by the State House of Assembly nor could the National Judicial Council appoint even an acting Chief Judge without the Governor’s concurrence. Consequently, what fueled the crisis in Rivers State was the difficulty of the three organs in agreeing on a mutually acceptable candidate. The Constitution however, failed to adequately hedge against the risk where the three organs failed to reach a concurrence. As evident from the Rivers crisis, during the period of non-concurrence, the State will remain without a Chief Judge because section 271(4) of the Constitution which obligates the Governor to appoint the most senior judge of the High Court as Acting Chief Judge is circumscribed by section 271(5) of the Constitution under which the most senior judge can only act for 3 months or as argued for the CJN position the Acting Chief Judge’s tenure is extended after which both the National Judicial Council and the Governor have to agree on a substantive appointment. As shown by the Rivers imbroglio, this concurrence as to a substantive position cannot be guaranteed. It is against this backdrop that we suggest that section 271(4) and (5) of the Constitution be amended so that until a substantive Chief Judge is appointed for a State, the judges of the High Court will occupy the office for 3 months each in acting capacity in rotation according to order of seniority.

 A writer construing section 271 of the Constitution has argued that only a judge of the High Court of a State is entitled to appointment as Chief Judge. With respect, we consider this conclusion to be erroneous and a misinterpretation of the clear provisions of section 271(1) and (3) of the Constitution. The only qualification required by the Constitution for appointment to the office of the Chief Judge of a State is that the candidate has been qualified to practice law in Nigeria for at least ten years, is recommended by the National Judicial Council, confirmed by the House of Assembly of the State and appointed by the Governor. Furthermore, the writer’s argument that since only the most senior judge of the State High Court is capable of appointment as acting Chief Judge in the event of vacancy, it follows that only the most senior High Court judge is entitled to be appointed substantive Chief Judge is, with respect,  also not tenable. This is because section 271(4) of the Constitution deals only with the filling of temporary vacancies prior to compliance with section 271(1) of the Constitution and no more. Besides, the appointment of a substantive Chief Judge has its express provisions vis a vis that of an acting Chief Judge with which section 271(4) and (5) of the Constitution are concerned, so that in our opinion there is no room for confusing the procedure for appointing a substantive Chief Judge with the procedure for appointing an acting Chief Judge or adapting one for the other. A construction of the constitution of the State Judicial Service Commission along with the NJC seems to also mean that the judiciary can de facto insist on a judicial officer for the role and indeed perpetuate the convention that only the most senior High Court Judge in the State is to be appointed. The extent of such a convention is not clear at the moment.
Clearly, the recommendation of the National Judicial Council cannot be dispensed with in the appointment of a State Chief Judge, so also the confirmation by the State House of Assembly prior to the Governor exercising his power of appointment.


We further submit that there is nothing in the Constitution that suggests that the Governor must effect the appointment of the candidate recommended by the National Judicial Council. After all, there is also the House of Assembly hurdle which the National Judicial Council’s recommended candidate will have to face prior to satisfactorily meeting the requirement for the Governor’s appointment. In practice, the Governor has two political options to reject a candidate: refuse to carry out the appointment or politically influence the House of Assembly to refuse confirmation of the candidate.  It is perhaps, this scenario that the makers of the Constitution foresaw in promulgating section 271(5) under which the most senior judge acting as Chief Judge could not so act for more than three months save on the recommendation of the National Judicial Council. The impasse in Rivers State could not be cured because the most senior judge was same person recommended by the National Judicial Council for substantive Chief Judge and even appointment as acting Chief Judge has to be by the Governor. It is against this background that an amendment to section 271(4) of the Constitution is essential to the effect that until the appointment of a substantive Chief Judge, the vacant office of Chief Judge shall be held in three months rotation by judges of the High Court in the order of seniority and without recourse to any appointing authority. 

Two conflicting constitutional questions come to mind from the Rivers stalemate: first, whether it is fitting that in the operation of a federal Constitution like Nigeria’s, a constituent state should be held to ransom by an agency of the Federal Government concerning the appointment of the State Chief Judge and second, whether a check on executive misuse of the power to appoint judicial officers is not better guaranteed by a central recommending authority? While the two positions may have their merits and demerits, it is important to consider that the persons proposed for appointment as judges were first of all nominated by the relevant Judicial Service Commission. In the case of the State, all the members of the Commission derive their powers from the State. To our mind therefore, the National Judicial Council merely screens the candidate recommended by the State to ensure he/she is qualified and then makes a final recommendation to the State Governor. This, to us ensures judicial independence and does not leave the appointment solely to the whims and caprices of a State Governor whose candidate must meet qualifying criteria set nationally by the National Judicial Council.

4. Conclusion
The starting point is the realization that the appointing powers of the executive over the judiciary under the Constitution is merely oversight. This is the import of the power being exercised solely on the recommendation of the NJC. As a contingency plan the Constitution then makes provision for an experienced most senior justice to act pending when both arms of government expectedly would have fine-tuned the choice of candidate for head of the judiciary. There is absolutely nothing in the Constitution that suggests the executive should be able to stall or determine succession in the hierarchy of the judiciary. What is envisaged is that a conscientious executive would point out the unsuitability of a candidate and the NJC can then reconsider. Encroaching on the independence of the judiciary by seeking to impose a candidate on the NJC does not have the backing of the Constitution and negates the doctrine of separation of powers and is indeed abuse of the executive’s oversight functions. This caused the imbroglio in Rivers State and the Supreme Court is now threatened. Nevertheless, a full blown Constitutional crisis can be averted by amending the Constitution to allow the office of CJN or CJ to rotate amongst the judges of the court concerned in acting capacity and in order of seniority for three months each without recourse to any appointing authority until the substantive position is filled. That way, the office of head of the relevant court will not be vacant.