Any discussion and action on the independence of the judiciary must start with the manner in which judges are appointed.
I once argued that the constitutional provisions that the President/Governors would appoint a judge on the recommendation of the National Judicial Council should be construed as leaving no discretion on the President/Governors to tamper with whatever recommendation passed by the NJC. I suggested that the President’s role should be purely ceremonial on the account of what I shall state hereunder:
The judiciary is a specialised arm of government in that only legal practitioners can be qualified to occupy the office of a judge at whatever level.
Now, the office of the President/Governor is constituted on a single individual who needn’t be a legal practitioner. In fact, one is eminently qualified if he/she is educated up to school certificate level or its equivalent. The NJC, on the other hand, is made up of about 23 members, 21 of whom are legal practitioners. Also working closely with the NJC before a recommendation is made, are the Federal and State Judicial Service Commissions, as the case may be, whose memberships are largely composed of legal practitioners.
I, therefore, need not belabour the point that as between the President/Governors and the NJC, the NJC is more likely to make an informed decision on who best qualifies for the office of a judge. This is not just on the basis of having the requisite specialised knowledge for making a healthy choice, but also on the basis of number.
I further submitted that should the President have any issue with any recommendation of the NJC, he should state his reasons neatly in a direct communication to the NJC allowing it to sort it out. If the NJC insists on a particular recommendation, the President should of necessity act on it. The framework should be like that which exists between the National Assembly and the President when passing a bill to law. Unfortunately, there is no equivalent power on the NJC as it is on the National Assembly to override the President’s veto. This is why I call for a strict interpretation of the role of the President in the appointment of a judge. Perhaps, this interpretation may involve amending those constitutional provisions involved.
There is yet another hurdle with the appointment of the heads of the different Courts and that is the confirmation by the Senate or the House of Assembly as the case may be. This, on its own, is reasonable but seems to be equally susceptible to manipulations and bad faith as is the case with Cross River State currently. I shall revisit the issue on another day.
If we can successfully circumscribe the powers of the President/Governors in this regard as well as in the removal of judges, then we can beam our light squarely on the NJC in order to expose whatever corruption and double standards in it that undermine the independence of the judiciary both institutionally and as a body of independent judges.
GODSTIME C. EJIDE ESQ