It was reported last week that the Chief Justice of Nigeria, Ibrahim Tanko Muhamad has expanded the recruitment pool from where Supreme Court Justices are picked beyond the present esoteric clique of privileged serving judges to now include legal practitioners from different vocational specialties. While it may sound like a novel development, it is actually a half-hearted attempt to return to best practice as it is the case all over the legally civilised world. Who gets appointed to the apex court and how he or she gets there would certainly go a long way in determining how responsive and forward-looking a nation’s legal system could be. To have unduly restricted such key appointments to serving judges alone while there are hundreds of abundantly qualified lawyers is a serious disservice to the legal order.
Judicial appointments under the Constitution are reserved for legal practitioners of verifiable integrity but with no restrictions whatsoever as to their areas of legal practice. It was probably the self-serving and nepotistic empire-building instincts of those charged with the sacred responsibility of nominating justices into the Supreme Court that have incestuously cornered it in favour of those already holding judicial appointments as if it were a vocational cult or a secret society and it has unwittingly denied the nation the services of some of her best legal minds while at the same time promoting a myopic judicial outlook.
A credible and good faith headhunt should naturally be extended to the Bar, the Academia and wherever juristic talents are to be found. Some may argue that the need for prior experience on the Bench may have influenced the jaundiced selection process. It is also important to acknowledge the obvious fact that fresh ideas are always needed at the Supreme Court for the sake of its vibrancy and institutional capacity that it requires to judiciously respond to the ever-changing realities and general institutional progress in the emerging digital legal world.
It is therefore questionable that in the entire history of the Nigerian Judiciary, only Justices Elias and Nnamani have been appointed to the apex court from outside the cult-like judicial establishment. Any wonder why the court’s jurisprudence has seemingly been stunted at a pitiable antediluvian level of technicalities instead of being the arrowhead in the conscious deployment of laws as credible instruments for social engineering? A Supreme Court does not only adjudicate, but it also pontificates, legally charting the way forward for societal wellbeing. That was how groundbreaking judicial pronouncements like in Marbury v Madison, Lakanmi v Attorney General of the Federation, Donoghue v Stephenson, etc., were invented but that depends strictly on the intellectual energy (not technicalities and precedential materials) at the court’s disposal.
We must not lose sight of the fact that the Supreme Court is also serving the nation, at least, for now, as her Constitutional Court. A typical Constitutional Court is normally composed of an admixture of legal practitioners and lay individuals from non-legal professions as a way of equipping the court to properly deal with disputes that cannot be resolved using technical legal rules within legalistic parameters alone. The Supreme Court does not only resolve legal questions, it also occasionally resolves fundamental questions of politics, constitutionalism and the philosophical basis of governance. It is already obvious that the Supreme Court of Nigeria has not been able to acquit itself creditably in this regard. That has become quite evident in the sloppy way and manner it has mishandled some recent high-profile political/electoral disputes that confounded Nigerians.
So, the least that we can do to strengthen the analytical capacity of the Supreme Court for dealing with some of these disputes with tricky extra-legal dimensions is to bring to the Bench people who have developed their legal skills outside of the straitjacketed in-house judicial process thereby enhancing its overall capacity to insightfully process and resolve “cases and controversies” that do not readily lend themselves to traditional legal technicalities.
Justice Augustine Nnamani’s used to dissentingly admonish his fellow justices to always try to tow the path of what he called “substantive justice” as against the dominant “technical justice.” Nnamani JSC, could think so creatively because he was not a product of judicial inbreeding. For example, a Justice who rose through the low-level magistrate system will, in all likelihood see things quite differently from a SAN or Professor of Law who came straight to the Supreme Court with wider juristic exposure; their legal philosophies and worldviews would definitely be different both in scope and in depth.
The present effort by the CJN to expand on the recruitment pool is inadequate as it still bears several aspects of the debunked assumption that you may only join the Bench if you have been active at the Bar. From the circular sent to the NBA from the CJN’s office, a candidate is expected to submit his application containing the following: “…A copy of the applicant’s Call to Bar Certificate; Evidence of payment of Bar Practicing Fees (BPF) for the past 10 years; Evidence of payment of NBA Branch Dues for the past 10 years; Evidence of attendance at conferences of the NBA; Evidence of membership of Sections or Fora of the NBA; Judgments delivered in contested cases the applicant conducted in the five years preceding 2022 certified by competent authorities for Legal Practitioners in Private Practice.”
These requirements look like those usually specified for Senior Advocate of Nigeria applicants as if one must have been into extensive courtroom forensic duels to understand and operationalise judicial processes which are actually more about intellectual clarity of the legal issues at hand than the mechanical (procedural) tools for resolving them. Otherwise, the additional requirement that: “It should also include a letter of good standing from the Chairman of the applicant’s Branch confirming that he or she possesses the qualities set out in Rule 4(4) (1)(a), (b) and (d) of the NJC’s Guidelines for the Appointment of Judicial Officers for Superior Courts of Record” does not take into account of the possibility of inclusion of legal scholars whose vocational dexterity and competences in the law are measured differently.
The US Supreme Court has a lot to teach us both in terms of legal reasoning, stature and institutional aura. It is able to set the pace for legal analyses and direction in the country quite authoritatively as it has long settled into the tradition of always admitting legal scholars into its fold. Distinguished Law professors like Justice Felix Frankfurter and Justice Ruth Bader Ginsburg (“the notorious RBG” of blessed memory) and many others have served on the US supreme court, and they usually ended up as judicial oracles often revered as “Great Justices.” From the look of things, a nominee to the US Supreme Court is more likely to scale through if the person is an academic. He would easily meet the extremely high standards of the deep-searching Judiciary Committee of the US Senate and would also easily avoid the often intense and brutal partisan grilling at judicial nomination hearings.
For the records, the current 9-man panel of the court has five (5) professors: retiring Justice Stephen G. Breyer was a law professor, Justice Alena Kagan, Justice Neil M. Gorsuch, Justice Anthony M. Kennedy were all university scholars. Finally, Justice Amy Coney Barret, the latest appointee to the Court was, until recently, teaching law at the University of Indiana.
It is therefore not a surprise that the US Supreme Court commands such enormous prestige and unfathomable intellectual awe. Can we say such about all our judges, knowing how some of them got there as well as their individual intellectual and professional backgrounds which necessarily militate against quality services delivery in terms of insightful outputs and intellectual prowess? I doubt it.
