The unexpected and inexplicable delay of President Muhammadu Buhari to appoint a new Chief Justice of Nigeria has led to unnecessary debates and the weaving up of conspiracy theories about the “politics” of the appointment of the CJN. It has also made many (largely uninformed or poorly-informed) commentators fall into the usual narratives of seeing everything through the prism of ethno-religious affiliations.
Happily, the name of the most senior Justice of the Supreme Court, Walter Onnoghen, has finally been sent to the Senate for confirmation, after the President initially failed to do so, instead appointing him in acting capacity. Sadly, that failure and delay by the President almost led the judiciary, nay country into a constitutional crisis. Sadly, that also led to media commentaries about how someone from the southern part of Nigeria had not served as the CJN since Justice Ayo Irikefe left in 1987.
Any proper analysis of the CJN appointments must draw largely from history. I therefore decided to do a short analysis of the position of the CJN, starting from when we had the first indigenous head of the Nigerian judiciary as follows:
We had Adetokunbo Ademola (1958 – 1972) from the present Ogun State; Taslim Olawale Elias (1972 – 1975) from Lagos State and Darnley Alexander (1975 – 1979) a non-Nigerian from St Lucia, who was invited to Western Nigeria by Obafemi Awolowo. He later served as Chief Judge of South Eastern State (i.e. present Cross River and Akwa Ibom states). Others were Atanda Fatai Williams (1979 – 1983) from Lagos State; George Sodeinde Sowemimo (1983 – 1985) from Ogun State and Ayo Gabriel Irikefe (1985 – 1987) from Lagos State. All the above indigenous CJNs were from the South, specifically the South-West.
In 1987, Mohammed Bello, from Katsina State, became the CJN and was there until 1995, thus making him the first CJN from the North. He was succeeded by Mohammed Uwais (1995 – 2006), from Kaduna State.
There were also Salihu Moddibo Alfa Belgore (July 2006 – January 2007), Kwara State; Idris Legbo Kutigi (January 2007 – December 2009), Niger State; Aloysius Iyorgyer Katsina-Alu (December 2009 – August 2011), Benue State; Dahiru Musdapher (September 2011 – July 2012), Jigawa State; Aloma Mariam Mukhtar (July 2012 – November 2014), Adamawa State and Mahmud Mohammed (November 2014 – November 2016), Taraba State.
From the above facts, there have been 14 CJNs since Independence of which number one was a non-Nigerian. All the CJNs from the South practised as lawyers in the Lagos area, which was the main hub of Nigerian law practice. They were also of Lagos and Ogun extractions (Egba, Ikorodu, Lagos). Adetokunbo Ademola for instance was the son of the Alake of Egba land.
It is also a fact that being influential in the justice sector in the Western part of Nigeria was also an advantage to becoming the CJN. In terms of geopolitical spread, it is not surprising that the South-West has had five CJNs. There have also been three CJNs from the North-West; three from North-Central and two from North-East. The South-East and South-South have had none.
It is important to find out who can become the CJN. By Nigerian laws, any lawyer who is 15 years post call to the Bar can be the CJN (theoretically speaking). So, if any president decides to name anybody with that qualification, no matter what work he or she is currently doing, including not being an active practitioner of law in the law courts, it would not matter, in law, if some analysts dismiss it as improper. But that is as far as the qualification goes.
Beyond the simple qualification as to the age at the Bar, some conventions and procedures have been developed over the years, backed by statute and the constitution, in the appointment of judges, including the CJN. Procedurally, the National Judicial Council submits name(s) to the President who then appoints by sending a name from that list to the Senate for confirmation. Over time, the NJC has always presented the name of the most senior Justice of the Supreme Court to the President for appointment.
Since seniority is a major yardstick for advancing up the ladder of the judiciary, it is important for analysts and commentators to know what amounts to “seniority” on the Bench. The concept of seniority at the Bench must be distinguished from that of seniority at the Bar. While seniority at the Bar merely refers to who got called to the Bar and enrolled earlier than the other, seniority at the Bench is based on who first got appointed on a given Bench. In the instant case, it simply means the length of experience on the Supreme Court Bench.
So, it is perfectly possible for Mr Abraham to become the CJN because he got into the Supreme Court before Mrs Bashorun, Mr Clement and Mr Denja, even though, Mrs Bashorun was a lawyer before all of the above listed persons and even though Mr Clement and Mr Denja are older than Mr Abraham. It also means that while Mr Abraham is still the CJN and yet to reach the retirement age of 70, Mr Clement and Mr Denja would become 70 before Mr Abraham, the CJN and retire and leave him behind in the Supreme Court. If Mrs Bashorun is younger than Mr Abraham, she could succeed the latter as the CJN even though she was five years the CJN’s senior in the law school and at the Bar.
So, assuming Mr Abraham and Mrs Bashorun are from the same part of the country, as far as outsiders who do not understand this “mystery” are concerned, they have cheated the area where Mr Clement and Mr Denja come from.
There is also the issue of how and when people get into the Supreme Court. Whenever there is vacancy in the Supreme Court, it is often filled (by quota) or geo-political representation and often by elevation from the Court of Appeal. But that doesn’t stop a person from being appointed straight into the Supreme Court without having been in the Court of Appeal court. For instance, Justice Niki Tobi (from Delta State) was a professor of law and dean at the University of Maiduguri when he was appointed straight to the Supreme Court. Similarly, to get to the Court of Appeal, the traditional route is for a high court judge to be elevated to it.
One fact we cannot overlook, but which is very key, is the effect of or the twist of coincidence. You may wish to add ‘luck’, ‘chance’ or ‘God factor’ to this. And there are a few examples.
Justice Mariam Aloma Mukhtar could have become the Chief Judge of Kano State many years ago. But when she inched towards being the CJ there, it was alleged that the ‘powers that be’ in the state were reportedly not comfortable with the possibility of her heading the state judiciary. There are a few conspiracy theories as to why that happened. It was apparently to knock her out of contention that they got her elevated to the Court of Appeal (a reverse kind of promotion or what the Americans call to kick someone upstairs).
Although she missed the chance of being (a mere) state CJ, Mariam Mukhtar also got elevated again to the Supreme Court. Some people think she was equally kicked upstairs so she might not become President of the Court of Appeal. While marking time and progressing gradually in the Supreme Court, time and chance worked for her as some older justices retired and viola, she became the first female CJN.
I know of judges who being close to heading a level of the judiciary would rather stay back and head that level than be promoted to higher Bench as mere number, especially when they approach retirement. This is because once you head a court, you are naturally expected to stay on until your retirement. Back in the 1990s in Cross River State, then chief judge, Edem Koofreh, having held the office for several years was nearing retirement. A certain Justice Emmanuel Effanga was the next most senior judge to Koofreh. As he neared taking over on the imminent retirement of Koofreh, there was talk of elevating Justice Effanga to the court of appeal which he reportedly was not agreeable to. Justice Effanga stayed back in the Cross River State High Court until he later succeeded Koofreh as chief judge.
Another point to note is that if you come from a state or geopolitical area where there are many qualified people to choose from, it would take you a longer time to make it to the higher courts than your colleagues from areas with fewer qualified persons. This means that by the time you make it up there, your contemporaries from the ‘less-endowed’ states would already have been on the Bench and therefore have become your seniors and they would naturally head the Bench before you or you may even retire on account of age, before the younger ones. This could explain why for many years, JSCs from the South did not emerge the CJN, especially as no highest-ranking JSC was ever side-stepped in the appointment of the CJN.
The good thing though is that Justice Onnoghen’s name has finally been forwarded to the Senate for confirmation as the Chief Justice of Nigeria. One only hopes it puts an end to unnecessary conspiracy theories which are not based on correct facts. And truly, this whole episode of fears about a constitutional logjam and conspiracies were clearly avoidable if the President had acted timeously with the appointment.
Follow me on Twitter @obobef
All rights reserved. This material, and other digital content on this website, may not be reproduced, published, broadcast, rewritten or redistributed in whole or in part without prior express written permission from PUNCH.