At the recent swearing in of newly appointed Judges in Lagos State, the Lagos State Governor, Mr. Babatunde Raji Fashola, SAN advocated for the amendment of the provisions governing the appointment of state judges to enable the States in the Federation to be the chief determiner of the number of judges to appoint at any given point in time. He was not happy that whereas Lagos State had presented seven judge designates to the National Judicial Council (NJC) for approval and recommendation before appointment, the NJC only recommended four of those persons presented for appointment, and declined to recommend or approve the appointment of the other three, without giving any reason for so declining.

Sections 270 of the Constitution provides for the establishment of the High Court of a State, and Section 271 governs the appointment of chief judge and judges of the High Court of a State. .Section 272 (2) (a & b) provides that “the High Court of a State shall consist of a Chief Judge of the State; and such number of judges of the High Court as may be prescribed by a Law of the House of Assembly of the State.”

By Section 271 (1 &2), the appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State; and the appointment of a person to the office of a Judge of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council.
From the provisions of the Constitution, it becomes clear that the NJC is the approving or recommending clearing house. The Constitution does not stipulate that the NJC must give a reason for not approving or confirming a recommendation. It is left open. Administratively, though, the NJC ought to give a reason for not approving or recommending a particular nominee or for turning down a nomination. It is also clear that the number of judges of a State is determined by the Legislature of a State. If Lagos State wants 150 or 200 Judges on her Bench, for example, the Lagos State House of Assembly can so decide. Presumably, if the Lagos State Judicial Service Commission start presenting credible and qualified candidates to the NJC for the manning or “womaning” of her Courts, the NJC would approve the appointments of such credible and qualified candidates.

At the outset of the advent of the 1999 Constitution, critical voices at the Bar, including Chief Rotimi Williams, SAN frowned at the centralization of the judges appointment process under the 1999 Constitution, in departure from the provisions of the 1979 Constitution. Many stakeholders had criticized the mode of appointment of judges under the 1979 Constitution, which survived throughout the military era. They argued that the powers granted the State Government to have the last say in appointment of judges of the States, gave room to manipulation of the appointment procedure at the State level; and they advocated for a central appointment approval procedure that would be devoid of state manipulation. In contrast, those who opposed this thinking when it became adopted under the 1999 Constitution, opined that the concept of a federal judiciary, where the States and the Federal Government, side by side, exercise autonomous powers in the appointment of their respective judges was being violated. They reasoned that the ” manipulation of the appointment procedure” by the States was now going to be substituted with the manipulation of the appointment procedure by one body-the NJC, defined as an Federal Executive body under the Constitution. See Section 153 of the 1999 Constitution. It appears the chicken is coming home to roost.

Our view is that we must return to the re-federalization of the judiciary. Our judiciary is currently a unitary judiciary, masquerading as a federal judiciary. Under a truly federal judiciary, each state of the federation will be able, for example , to determine the number of judges she needs, and appoint them . The law, rules, and principles governing appointment of judges may be uniform nationwide, to eliminate discrepancies, but the approving and appointing authority must be within a State. For example, to be a high court judge, you must have attained at least 10 years at the Bar. This may be a uniform requirement, but the appointing or approving authority ought not to be one, central, unitary judicial body, like the NJC. And the appointment procedure should not be dominated by the Executive Branch of Government in the State, in order to guide and protect the independence of the Judiciary in that State.

However, we need to know exactly what the Lagos State Governor is complaining about. The NJC knows or must be deemed to know that the number of judges that a State requires is a matter within the exclusive legislative domain of a State. The Constitution, Section 270 (2) (b) says so. The NJC, therefore cannot be dictating the number. The NJC may, thus, not be complaining about the number presented. Seven, we are told. After all, if there are no vacancies, there won’t be the need to seek fresh appointments.

The NJC may be complaining about the quality of the persons who are presented for confirmation, for we do know, and the NBA and Bar activists have been complaining g about this for a long time, politicians and temporal principalities in the society have hijacked the appointment of judges. The Judiciary, judges, the Bar and Bench should be the ones determining, to a large extent, who could and should be judges. And who could not and should never be allowed to be. It should be possible for serving judges, as we are told was the custom or practice in the past, to note and remark the industry, integrity and learning of lawyers appearing before them, who are in private practice, and be moved to recommending them, and persuading them, even if they are reluctant to serve, to serve on the Bench. “The Bench deserves the brightest and the best.” “If people like you don’t want to become judges, who should become judges ?”, they should be able to say.

But now, politicians have seen the Judiciary, as an extension of their territory of influence peddling and power wielding. So they are making obtrusive and destructive inroads into the Judiciary. Therefore, Governor Fashola should not just complain about judge designates being turned down, he should tell us what he surmises or infers from the turn down. Is it about quality of those presented or their number. Is it about substance or size? After all, inference or inferring from a set of facts or circumstances is a permissible rule of the law of Evidence.

Mr. Ogunye, social justice advocate, attorney at law, and Premium Times Legal Adviser writes from Lagos.