The National Assembly appears displeased with the age-long practice in the judiciary on tenure of office for heads of all categories of superior courts of record in the country.
By age-long tradition, heads of courts including the Chief Justice of Nigeria, the President of the Appeal Court, hold offices until they attain their retirement age.
By implication, if a serving judicial officer joins the bench early and rises to become the head of a court, he remains in office for no fixed years until he retires if he is not promoted to a higher court
In rare occasions, however, such heads of court may lose their seats if they misconduct themselves while holding the offices.
Other heads of court in the category include the Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judges in the 36 states and the Federal Capital Territory (FCT), Grand Khadi of a Sharia Court of Appeal and President of Customary Court of Appeal.
This is unlike what obtains in the legislature and the executive where the heads of the two arms of government have fixed tenure of office.
Specifically, various provisions of the 1999 Constitution provide that such heads of the executive and the legislative arms of government shall hold office for four years certain except in rare cases, as well, when they are forcefully removed from office for misconduct.
Although heads of the executive and the legislature are elected for a fixed tenure of office unlike the heads of all categories of superior courts of record listed supra who are appointed, yet, the National Assembly is planning to amend the constitution for inclusion of a maximum five-year tenure clause for heads of courts in the country.
The lawmakers are contending that fixing a tenure of office for the heads of courts will enhance service efficiency and motivation of officers while it will also address overstay of heads of courts.
Besides, the lawmakers are also questioning the provision of section 230 of the 1999 Constitution that creates only one Supreme Court for the whole of the country without establishing divisions.
The lawmakers are arguing that it is now time to establish divisions for the Supreme Court in the geo-political zones of the country to enhance access to the highest justice, minimize the logistical cost of accessing justice and ensure timely dispensation of matters brought before the apex court.
Already, legislative fireworks have begun at the lower chambers of the National Assembly to alter the 1999 Constitution to the effect following two bills sponsored by a lawmaker representing Darazo/ Ganjuwa Federal Constituency, Hon Mansur Manu Soro.
Vanguard reports that the first bill titled: “A bill for an act to alter the Constitution of the Federal Republic of Nigeria to provide for tenured appointment of heads of courts at both the Federal and State judiciary, (HB 1701)” has scaled the first reading.
Similarly, the second bill titled: “A bill for Act to amend the Constitution of the Federal Republic of Nigeria, 1999, to provide for the establishment of five divisions of the Supreme Court of Nigeria for timely dispensation of matters brought before the apex court” ( HB1731), has also scaled the first reading.
The proposals by the lawmakers to alter the constitution to achieve their objectives have expectedly sparked intense debate among stakeholders, particularly lawyers.
Top lawyers and respected members of the inner bar who spoke with Vanguard expressed surprise that such bills could be introduced at the lower chambers of the National Assembly, contending that the present crops of lawmakers appear not to understand issues about the judiciary.
The senior lawyers who spoke on the two proposals include a former Attorney-General of Abia State, Prof Awa Kalu, SAN, a former member of Imo State House of Assembly, Chief Mike Ahamba, SAN, a rights activist and constitutional lawyer, Prof Itse Sagay, SAN and a respected silk and former Chairman of Osun State University Governing Council, Mallam Yusuf Olaolu Ali, SAN.
The lawyers said that if the two proposals were to be rated on merit, they would score zero.
Speaking on the first proposal regarding the tenure of office for the heads of courts, they separately urged the legislature to leave the judiciary the way it is if they do not want to create unnecessary problem for the third arm of government.
It sounds strange—Prof Awa Kalu, SAN
According to Prof Awa Kalu, SAN, “Personally speaking, I am not in favour of time limitation for judicial officers. It has been said from time immemorial that judicial office is different from the other offices where they have tried limitation of tenure.
“In some states for instance, if you have done eight years as a director, then you will shift and go. That is not salutary for judicial office, in my view.
“You yourself, see how it sounds? When you are a chief judge or the Chief Justice of Nigeria, if you have more than five years in office before your elevation, you will now spend the five years as head of court and then come back to the rank and file.
“Judicial office is not that kind of office where you can try that. If you have a chief judge who joins the bench at a young age, others who are next to him will have to endure. That is it.
“Somebody cannot be a chief judge and after five years, he will become the youngest judge. Or after five years, where do you place him? Will he be Number Two? How do you revise the list?
“So, I think that tradition will help us to understand that patience on its own is a virtue. If they are number two, stay until number one retires. That is my reaction to that,” he said
The proposal does not make sense—Chief Mike Ahamba, SAN
Joining the conversation, an Imo-based lawyer and respected silk, Chief Mike Ahamba, SAN said “The proposal doesn’t make any sense.
“This idea is being toyed with by people who want to treat the judiciary as a political wing of Nigeria. I have said it before. We are not the same.
“The main difference is that the executive is occupied by the politicians, the legislature by the politicians but the judiciary is not occupied by politicians. So, going to talk about how many years one will spend, here and there, is not about those who elected them into office. They are not elected into their offices. And in any case, they are like wine, the older the better.
“Now, in America, there are some Supreme Court justices who have clocked 75 years and they are still serving. So, let them keep their eyes off the judiciary. After helping them do the election, let them leave them alone. That is all I am saying: Leave the judiciary alone. Yes, that is what I have to say,” he added.
It’s like asking ex-President to serve as a minister under another regime—Yusuf Ali, SAN
Also contributing to the issue, respected silk, Yusuf Ali, SAN, said “I don’t think the present practice of remaining in office until retirement has caused problem for anybody. You don’t just change because you fancy change. There must be some serious issues that afflict what we are practising before you change it.
“This is because if you are not careful, in an attempt to change what you are changing, you may create different level of problem again. It is like asking somebody who was a former President of Nigeria to become a minister in a subsequent regime. It will be a bit invidious.
“So, for goodness sake, the system we have been practising is working. I think they should just allow that to go on the way it is. You should not just be amending things because you just want to amend,” he said.
You cant be the head of the court and come back again as ordinary judge—Prof Sagay, SAN
A renowned academic and rights activists, Prof Sagay, SAN also said the proposal is an indirect way of asking the affected heads of court to retire before hitting their mandatory retirement age.
His words: “You cant be the head of court and come back again as ordinary judge. I don’t think that is a good idea at all. It is as if we are doing a turn by turn stuff: that you have done your five years, let me do mine. It looks too as if the people are there in order to rise to the position rather than doing their jobs.
“If a person is appointed a chief judge or Chief Justice of Nigeria, that is his own good luck for benefit. He must have been good to get there at a young age. Let him be there.
“At times, being there for a long time gives you a greater capacity to do a more efficient job because as time goes on, you will be able to compare what you did before and all the deficiencies and what you need to do to improve on them and with time, you can be more efficient and more effective.
“I don’t believe in that argument. I think judges should retire at 70 regardless of when they were appointed heads of their court. I don’t agree with that at all,” he said.
Decentralizing S’Court wont profit us—Awa Kalu, SAN
Also reacting to the second proposal to decentralize the Supreme Court of Nigeria, SCN, Prof Kalu, SAN said: “Splitting the Supreme Court into five or six zones as contained in their proposal, I don’t know what it will profit us?
“America is larger than Nigeria. It has only one seat for the Supreme Court. Having one Supreme Court ensures the accurateness of the decisions emanating from the bench.
“We have problems with the Court of Appeal, for instance, which sits in various divisions. Judgments they are delivering in Sokoto may vary from the judgments they are delivering in Calabar, yet it is the same court. We have not found a way around it“For me, my personal view is that let the Supreme Court remain the Supreme Court. It is not the Supreme Court of the South West or Supreme Court of the South East, or Supreme Court of the North Central. To say it in Pidging English: E get as he be.
“The best thing, as far as I am concerned, is that let the Supreme Court remain one. If you have to take it into five zones, how do you determine when each zone wants to sit as a constitutional court when you need seven justices to sit.
“Instead of the 21 that we have now, you will have 7 times 5 or 7 times 6 as the case maybe. So, for me, let the sleeping dog lie. I don’t see why the Supreme Court should be split into zones.
“We have had one Supreme Court if we are counting from independence. So, since 1960, we have had one Supreme Court and nobody has discussed why it should now be split into zones.
“So, how will you stay in Lagos and know what somebody in Abuja is saying without properly streamlining the court either electronically or otherwise. So, in which zone will the Chief Justice sit or preside? Make you dey look am o.
“To me, it is a no, no. In fact, if one has to examine it on merit, I will score both ideas of decentralizing the Supreme Court and limiting the tenure of heads of courts to five years zero. That’s my view for now except there is a superior argument,” he said.
Let the legislature leave the judiciary alone—Ahamba, SAN
Corroborating what Prof Kalu said, Chief Ahamba, SAN asked Vanguard rhetorically: “Why call it Supreme Court? Why should you have five divisions as Supreme Court? Is it zonal Supreme or national Supreme?
“There are certain things they do in that assembly, I have told you, I don’t believe they have the competence to amend the constitution. They have the competence to alter some provisions of the constitution.
“The way they are doing things, they pass Alteration Act and end up calling it amendments. The two words are not the same. You can check up the meanings of these two words in the Dictionary and see whether they are the same. They are not. Amendment evacuates what was; alteration changes something that exists but does not evacuate. That’s the main difference between them.
“And the way they are going, even lawyers wont know the sections of the constitution for anything. And nobody can write any book on the constitution. And when they do this thing, they will go and tamper with the main body of the constitution.
“If somebody had written a book on the constitution, citing sections, when they make these amendments and change the sections, how can somebody in the university read them with understanding.
“They should just face the ones they can do and leave these ones. They don’t understand the issues about the judiciary. I’m worried about the way people now think they can toy with the judiciary.
“And I blame them (the judiciary). They made themselves available to be toyed with. But that does not mean we should destroy them because the alternative to them is worse. Alternative to the judiciary is anarchy. And anarchy is a dangerous pastime.
“So, what you will do is to first of all leave them alone and try to get them make changes. Look at it. In Imo State now, we don’t have a chief judge. All the cases filed have not been assigned to anybody because there is no chief judge. I don’t know why the attorney general would be with the executive that the political head would do the wrong thing and they wont tell them. That is what we are facing in Imo state presently.
“The constitution is clear: if there is vacancy, the most senior becomes the chief judge immediately, automatically by operation of the law. They will now later decide whether the person will continue or be changed. Let them just leave the judiciary alone, I must continue to say,” he said.
Decentralising S’Court not the way to go—Yusuf Ali, SAN
Joining the conversation, Ali, SAN said “Everywhere in the whole world that I know, the Supreme Court is always one. They don’t have divisions. In fact, it is only here that you have a multitude in the court .
“In America, they have just nine Supreme Court justices for more than 200 years. In UK, they shifted from House of Lord to Supreme Court. How can you decentralize Supreme Court and turn it to a Court of Appeal?
“A Supreme Court of a country is a policy court. It must speak with one voice at all times. You cant bring geo-political factor into Supreme Court which is expected to serve everybody.
“What I think they should do is to limit the matters that can get to the Supreme Court so that we don’t overload them. It is a court of policy, a constitutional court. We should not just embark on some of these things that will cause more problems for the country jurisprudentially, legally, constitutionally, etc.
“We should not start to play politics with the Supreme Court. Supreme Court cannot be acting like Court of Appeal that has many divisions. No. That is not the way to go. Anybody who loves our country and loves the rule of law, will speak out against this proposal. That is my view,” he said.
Prof Sagay, SAN
In his own contribution, Prof Sagay, SAN said: “I don’t like the idea of having divisions. But you can send the justices to various zones where they sit for a period of time and go back to Abuja as we used to have it in the 50s and possibly early 60s.
“What used to happen at that time was that the Supreme Court used to go round like a panel would go to the North while another will go to the East. But the court is located in Lagos while its justices move round the country.
“So, if this is what they have in mind, it has been done before except that we have the justices actually physically going to a region or a state for like six months, clearing all the backlogs of cases there so that there is no need for such cases to be brought to Lagos. That was done before and it was very effective.
“I think it will clear the congestion and make it easier for those who are filing cases because they are going to be nearer to the source of the appeals. It will make life easier for everybody.
“But it depends on the way it is organized. It is not a new thing. It has been done very successfully before. It involves those Supreme Court justices actually travelling, staying in the zone or the region for a number of days.
“Maybe, we should do that rather than actually having divisions,” he added.
