Why The Nigerian Constitution Shields Judicial Officers (1), By Eric Teniola
Although the protection is more glaring in the 1999 constitution, yet the process started in 1976. The reason may not be farfetched. The two Constitutions that we have operated in Nigeria since 1966 – those of 1979 and 1999 – were produced by judges.
In the wake of the case involving the suspended chief justice of the federation, Justice Walter Samuel Nkanu Onnoghen (GCON), it seems we are much concerned about the constitutional protection for judicial officers in the country.
Although the protection is more glaring in the 1999 constitution, yet the process started in 1976. The reason may not be farfetched. The two Constitutions that we have operated in Nigeria since 1966 – those of 1979 and 1999 – were produced by judges. As it is now, judicial officers in this country are like untouchables, who are only to be tried by the National Judicial Council, no matter the offence they commit.
Of the six members of the subcommittee on the judicial system of the Constitution Drafting Committee of 1976, only three were lawyers. And they are Chief Osuolale Abimbola Richard Akinjide, who later became the attorney general of the federation; Alhaji S.M. Liberty, who was then the attorney general of Bornu State; and Mr. Paul Richard Vekaa Belabo, who was then legal adviser to the New Nigerian Development Company in Kaduna. The chairman of the subcommittee, Alhaji Nuhu Bamali, who was a former foreign minister; Dr. Ibrahim Tahir (author of The Last Imam; 1938-2009), the Talba Bauchi, who later became Nigeria’s minister of internal affairs; and Professor Obaro Ikime, who was then professor of history and director of the Institute of African Studies, University of Ibadan, were not lawyers.
Their recommendations were that:
“(1) there shall be established a Federal Judicial Service Commission which shall be responsible for service matters of the Federal Judiciary in accordance with the provision of this Constitution and any law which the National Assembly may enact. (2) the Federal Judicial Service Commission shall be composed of 15 members as follows – (a) Chairman who shall not hold any other judicial appointment but shall be a member of the legal profession of repute; the Chief Justice of Nigeria, the Grand Mufti and the Federal Attorney-General … (e) a senior advocate (who shall not be eligible for appointment to the Bench during his tenure as member of the Commission and for three years thereafter) to be nominated by the Nigeria Bar Association; (f) two law teachers, one of which must be versed in Sharia; (g) the Chairman, Federal Public Service Commission; (h) the Chairman, Judicial Committee of the Federal House of Representatives; (i) the Chairman, Judicial Committee of the Senate; (j) three lay-men of public standing, including traditional rulers… (3) The tenure of the none official members of the Commission shall conform with those provisions governing tenure in similar Federal institutions; (4) No non-official member shall be eligible for tenure for more than 2 terms. (5) The Commission shall also have responsibility for appointment of the Chief Registrar and other personnel of the Supreme Court and all other Federal Courts. (6) The Commission shall be responsible for the discipline of Federal Judges other than the Chief Justice of the Supreme Court. (7) In handling disciplinary matters the Commission shall appoint a committee of 3 to investigate allegations against a Judge, and on the basis of finding of such a committee make a recommendation to the President.”
However the recommendations of the Nuhu Bamali subcommittee were amended. In the 1979 Constitution, what was agreed was that:
“the Federal Judicial Service Commission shall comprise the following members, namely – (a) the Chief Justice of Nigeria, who shall be Chairman; (b) the President of the Federal Court of Appeal; (c) the Attorney-General of the Federation; (d) 2 persons, each of whom has been qualified to practise as a legal practitioner in Nigeria for a period of not less than 15years, from a list of not less than 4 persons so qualified recommended by the Nigerian Bar Association; and (e) 2 other persons, not being legal practitioners, who in the opinion of the President are of unquestionable integrity. The Commission shall have power – (a) to advise the President in nominating persons for appointment, subject to the approval of the Senate, as respects appointments to the office of – (i) a Justice of the Supreme Court (but not including the office of Chief Justice of Nigeria), and (ii) the Federal Court of Appeal; (b) to recommend to the President persons for appointment to the office of – (i) a Justice of the Federal Court of Appeal; (ii) the Chief Judge of the Federal High Court (iii) Judges of the Federal High Court, and (iv) chairman and members of the Code of Conduct Tribunal established under the Fifth Schedule to this Constitution; (c) to recommend to the President the removal from office of the judicial officers specified in sub-paragraphs (a) and (b) of this paragraph and to exercise disciplinary control over such judicial officials; and to appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Federal Court of Appeal and the Federal High Court.
The Chairman of the Constitution Drafting Committee itself was Chief Frederick Rotimi Alade Williams (1920-2005), president of the Nigerian Bar Association (1959-1968). The chairman of the Constituent Assembly of 1977-1979 that produced the 1979 constitution was Justice Elgbert Udo Udoma (1917-1998). The Chairman of the Legal Drafting Team of the Constituent Assembly of 1977-1979 was Justice John Hezekiah Omololu Thomas (1925-2018).”
The 1979 Constitution was promulgated as Decree Number 25 of 1978. The addendum stated that: “Whereas the Constituent Assembly established by the Constituent Assembly Decree 1977 and as empowered by that Decree has deliberated upon the draft Constitution drawn up by the Constitution Drafting Committee and presented the result of its deliberations to the Supreme Military Council AND the Supreme Military Council has approved the same subject to such changes as it has deemed necessary in the public interest and for purposes of fostering the promotion of the welfare of the people of Nigeria: AND WHEREAS it is necessary for the Constitution to be vested with the force of law: NOW THEREFORE, THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:- 1.—(1) There shall be for Nigeria a Constitution which shall be as set out in the Schedule to this Decree. (2) The Constitution set out in the Schedule as aforesaid shall have the force of law and shall come into operation as therein provided. 2. Whenever it may hereafter be necessary for the Constitution to be printed it shall be lawful for the Federal Government Printer to omit all parts of this Decree apart from the Schedule and the Constitution as so printed shall have the force of law notwithstanding the omission. 3. – (1) This Decree may be cited as the Constitution of the Federal Republic of Nigeria (Enactment) Decree 1978. (2) Notwithstanding section 279 (1) of the Constitution, the Head of the Federal Ministry Government may, where circumstances so warrant, by order published in the Gazette appoint a date earlier than 1st October 1979 for the coming into force of any of the provisions of the Constitution specified in the order.
Eric Teniola, a former director in the Presidency, writes from Lagos.