In March 2020, the National Judicial Council (NJC) nominated 33 persons for appointment as Judges of the High Court of the Federal Capital Territory. And on Tuesday July 9th, 2020, the Nigerian Senate read out President Buhari’s request for the confirmation of the appointment of 11 Judges of the High Court of the Federal Capital Territory, following a letter written to that effect. In other words, the President decided not to appoint 22 out of the list of 33 nominees, forwarded by the NJC. No reasons have been given by the President, for doing so.
The President’s “Cherry-Picking” from the list forwarded by the NJC
Only a third of the names forwarded by the NJC to the President were appointed by the latter, amidst controversies over the way the NJC selections were conducted in the first place. When the President cherry-picks those he will appoint from a list submitted by the NJC, this raises important concerns of judicial independence, particularly when there are no explanations justifying the selection. Those concerns arise, because of the huge potential for misusing the power to make appointments. That power can be used to blackmail, coerce, extort, or obtain a quid pro quo from the Judiciary, or may otherwise be used illicitly, in a manner that ultimately undermines the independence of the Judiciary.
It may be noted that, the President is not reported to have raised any objections to the list since it was submitted to him in March 2020. This is not to say there were no grounds for reproving the recruitment process leading to the submission of the list, or the list itself. But, if the President was not satisfied with the composition of the list, or the process leading to it, he had a duty to be transparent about his objections to the list, and to publicly state them. This is inferable from the notion of the Judiciary’s independence, in the conduct of its own affairs. If this were not so, the President could permit improper motives to govern the choices he makes on judicial appointments, and be wholly unaccountable over his decisions.
President’s Selection Decisions lack Transparency, Disrespects Judiciary and threatens Judicial Independence
The President’s appointment of a downsized number of Judges for the FCT High Court, and the absence of information justifying the selective appointments, blatantly disrespects the Judiciary; the impression it creates, is that the Executive controls the Judiciary even regarding matters pertaining to the affairs and organisation of the Judiciary. When a similar question arose in India not so long ago (“In re Special Reference 1 of 1998”), the Supreme Court of India held that, the Indian President is bound to appoint Judges recommended by persons in the Judiciary, notwithstanding that the Indian Constitution gave the President power over appointment of Judges.
Nigeria’s President ought to provide both the Judiciary and the public with clear, cogent, justifiable and defensible reasons, for downsizing on a list sent to him for appointment by the Judiciary. The precedent set by the President in taking this action is a new, but nevertheless, ominous threat to the autonomy of the Nigerian Judiciary.
To prevent the propagation of a culture of arbitrariness in the exercise of the President’s powers over the appointment of Judges, Access to Justice urges:
1. President Buhari to immediately furnish reasonable and transparent reasons for not appointing all the persons nominated by the NJC to him, for appointment into the High Court of the Federal Capital Territory;
2. The Nigerian Judiciary, particularly the NJC, to observe the handwriting on the wall, and see how its own actions are hurting the independence of the Judiciary. Its consistent failure to observe the appointment guidelines it made (to strengthen the calibre of persons who get into judicial positions), may be contributing to the escalating levels of disrespect of the Judiciary by other branches of government. The NJC needs to reposition and revitalise the Judiciary.
This is particularly urgent in light of the tumultuous events of the past few years, where a business as usual approach has led to a reduction of the stock value of the Judiciary. Right now, there seems to be no visible or significant efforts by the Council to address the dysfunctionalities in the Judiciary, or lift up its public perception. If the NJC continues down this path, the Judiciary’s dignity will only plumb downwards at a faster rate.