A CLARION CALL FOR APPOINTMENT OF SEASONED LEGAL PRACTITIONERS AND DISTINGUISHED PROFESSORS TO THE SUPREME COURT AND COURT OF APPEAL

Nurudeen A. Ogbara Esq.

The Nigerian judiciary remains the bastion of democracy and the last hope of the common man. This is certainly beyond any disputation. However, the quality, caliber and pedigree of Nigerians appointed as jurists to man the third arm of government particularly the appellate courts, namely, the Court of Appeal and the Supreme Court, have been, and certainly would continue to be, a matter of ceaseless public interests, debates and controversies.

Section 230 (1) of the 1999 constitution establishes the Supreme Court of Nigeria and section 230 (2) stipulates that the Supreme Court shall be peopled by the Chief Justice of Nigeria and at most 21 other Justices of the Supreme Court. Sections 231 (1) and (2) of the Constitution supra deals with the appointment of the Chief Justice of Nigeria and other Justices which the President is empowered to make pursuant to the recommendation of the National Judicial Council (NJC) and subject to confirmation by the Senate. The same procedure is applicable to the Court of Appeal where there is expected to be the president of the Court of Appeal and not less than 49 other Justices.

The qualification for the office of the Chief Justice of Nigeria or as a Justice of the Supreme Court of Nigeria, by virtue of section 231 (3) of the 1999 constitution supra is to have been a legal practitioner for a period not less than 15 years while that of the President and a Justice of the Court of Appeal is 12 years post call qualification.

Meanwhile, in the history of appointment to either of the two appellate courts, every appointee had always had more than the basic requirement for the post. In addition, there has been an overwhelming pattern in not appointing eminent legal practitioners to these exalted judicial pedestals or offices. By this it is meant that a predetermined and predictable appointment mechanism has been deployed in appointing functionaries of the Court of Appeal and the Supreme Court contrary to comparative and contemporary practices. This common disposition, to say the least, is outdated, unbefitting, unfair and does not augur well for a multicultural, heterogeneous polity like ours. It also amounts to disservice to an otherwise more involved, more progressive and broad-based highest adjudicatory platform African south of the Saharan and north of River Limpopo.

For instance, it will be recalled that out of several eminent persons elevated to the apex court, none originated directly from the bar (inner or outer) nor did any come from the academic circles yet these two components are sine qua non in a truly balanced, representatory and complete Supreme Court.

Since the establishment of the apex court in 1956, there have been a total number of 9 Chief Justices of Nigeria. These are the Honourable Justice (Sir) Stafford Foster-Sutton, the 1st Chief Justice of Nigeria (CJN); the Honourable Justice (Sir) Adetokunbo Ademola, the 2nd CJN (but 1st indigenous CJN); the Honourable Justice (Prof.) Taslim Olawale Elias, the 3rd CJN; the Honourable Justice (Sir) Darnley Arthur Raymond Alexander, the 4th CJN; the Honourable Justice Atanda Fatai Williams, the 5th CJN; the Honourable Justice George Sodeinde Sowemimo, the 6th CJN; the Honourable Justice Gabriel Ayo Irikefe, the 7th CJN; the Honourable Justice Mohammed Bello, the 8th CJN; and the Honourable Justice Muhammadu Lawal Uwais CON, GCON, the 9th and incumbent CJN. Only one of these nine "Chief Executive Officers" of the apex court, namely, the Honourable Justice Taslim Olawale Elias had the exceptional opportunity of being appointed directly from the bar. The same is applicable to the court of appeal.

In the same vein, out of a total number of 84 jurists who have served (17 of these real jurists are still serving) as Justices of the Supreme Court of Nigeria, virtually all of them were appointed by way of elevation from the court of appeal to the apex court.The only two exceptions to the general practice of promotion so far are the Honourable Justice Taslim Olawale Elias who was appointed the 3rd Chief Justice of Nigeria after being the Attorney General of the Federation and the Honourable Justice Augustine Nnamani, who was appointed a Justice of the Supreme Court from the Chambers of the Attorney General of the Federation.

Ironically, the two instances occurred under a military dispensation nearly three decades past and General Obasanjo deserves to be commended and congratulated for the foresight, very informed and salutary initiative. Perhaps, the President may consider it pertinent to re-enact the evidently commendable and beneficial initiative by appointing two legal Practitioners and two Professors of law with outstanding records of accomplishments as Justices of our appellate courts to fill the existing vacancies with a view to bringing new, fresh and broad-based perspectives to, and reinvigourate, the apex court in accordance with contemporary realities and best practices.

We are fortified in our position as in countries like Sri Lanka, India, Canada, South Africa and the United States, Justices of their appellate courts are not restrictively or lopsidedly appointed. High Court Judges, Appeal Court Judges, Law Professors as well as brilliant and experienced lawyers are all appointed as a mix into the Supreme Court for the overall interest of the countries. Nigeria has for a long time be an ugly exception and this chain must give way to liberalism and freedom so that we have a broad-based appellate courts.

A brief look at the United States practices in this respect is instructive. Antonin Scalia was appointed in 1986. Before the appointment, his Lordship was teaching at the University of Chicago Law School and also a visiting professor at the Law Schools of Georgetown and Stanford Universities. President Ronald Reagan appointed to him to the United States Court of Appeals for the District of Columbia Circuit in 1982 and four years later, precisely on June 24, 1986, President Reagan nominated him to the Supreme Court of the United States and the Senate confirmed the nomination on September 17, 1986.

Justice John Paul Stevens was a practicing attorney and taught at the Northwestern and Chicago Universities prior to his appointment in 1970 as a Judge of Court of Appeals for the Seventh Circuit by President Richard M. Nixon. Five years later, President Gerald R. Ford nominated him to the Supreme Court on December 1, 1975 and the Senate confirmed him on December 17, 1975.

Justice Anthony M. Kennedy was appointed a U S Justice of the Supreme Court in 1988. He was in private practice in San Francisco and later Sacramento for years. He also served as an adjunct Professor at the McGeorge School of Law, University of the Pacific prior to his appointment in 1976 by President Gerald Ford to the United States Court of Appeals for the Ninth Circuit. President Ronald Reagan nominated Kennedy to the Supreme Court of the United States on November 30, 1987while the Senate confirmed him on February 3, 1988.

Justice Ruth Bader Ginsburg was an academic and the associate director of a comparative law project sponsored by Columbia University before her appointment to the Supreme Court in 1993. Justice Clarence Thomas was admitted to the Missouri bar in 1974 and became an Assistant Attorney general of the State of Missouri the same year. He was an attorney for the GMO giant, Monsanto, from 1977 to 1979. In 1981, Thomas was appointed Assistant Secretary for Civil Rights in the United States Department of Education. In 1982, he was named Chairman of the United States Equal Employment Opportunity Commission and served in that capacity until 1990 before President George Bush appointed him to the United States Court of Appeals for the District of Columbia Circuit in 1990 and on July 1, 1991, President Bush nominated him to the Supreme Court of the United States, while the Senate endorsed him on October 15, 1991.

Justice William Hubbs Rehnquist, the immediate past Chief Justice of the United States (1986-2005) was initially an Associate Justice of the Court from 1972 to1986. He was previously an assistant Attorney General for the Justice Department's Office of Legal Counsel. In this post, one of his functions included to screen, along with others, candidates for potential Supreme Court positions. When efforts to find a suitable candidate to replace the then retiring Justice John Marshall Harlan failed, one of his colleagues informed Rehnquist that they had settled on someone--Rehnquist himself. Justice Rehnquist was 47 years old, inexperience, and his political horizons differed significantly from many Senators, yet his nomination was confirmed by 68 to 26 on December 10, 1971. And on January 7, 1972, his Lordship joined the Supreme Court of the United States, the same day as Justice Lewis F. Powell, Jr. 

It is on record that during his early years on the US apex Court, despite the presence of three other Republican appointees, Rehnquist was often the only dissenter. In the area of criminal procedure, Rehnquist urged the Court to overturn Mapp v. Ohio (1961), which made the rule excluding illegally seized evidence from admission in a trial applicable to the states. Rehnquist also seemed hostile to Miranda v. Arizona (1966), which guaranteed that suspects in police custody be informed of their rights before interrogation, although he never directly argued that it should be reversed. He was diagnosed with thyroid cancer in October 2004 and died on September 3, 2005 at age 80.

Even in the classical era or old days of the United States Supreme Court, the broad based approach was writ large in appointing Justices to the apex court. The first Chief Justice of the United States, John Jay (1789-1795), was appointed directly from the bar. President George Washington nominated him as the first Chief Justice of the United States on September 24, 1789, whilst the Senate confirmed the nomination on September 26, 1789. In April 1794, Jay negotiated a treaty with Great Britain, which became known as the Jay Treaty. After serving as Chief Justice for five years, Jay resigned from the Supreme Court on June 29, 1795, and became Governor of New York. He declined a second appointment as Chief Justice in 1800. Consequently, President John Adams nominated John Marshall for the position. John Jay died on May 17, 1829 at the age of 83years.

John Rutledge was admitted to the English bar in 1760. In 1764, he was appointed Attorney General of South Carolina by the King’s Governor and served for ten months. On September 24, 1789, President George Washington nominated him directly from the bar as one of the original Associate Justices of the Supreme Court of the United States. The Senate confirmed the appointment two days later. After one year on the Supreme Court, Rutledge resigned in 1791 to become Chief Justice of South Carolina’s highest court. On August 12, 1795, President George Washington nominated Rutledge Chief Justice of the United States. He served in that position as a recess appointee for four months, but the Senate refused to confirm him. He died on June 21, 1800, at the age of sixty.

The second Chief Justice of the United States was John Marshall (1803—1835), who had been admitted to practice in 1780. He was offered appointment as a Justice of the United States Supreme Court in 1798, however Marshall opted to remain in private practice. John Marshall was elected to the United States Congress in 1799, and in 1800, President John Adams appointed him Secretary of State. In 1801, President Adams nominated him as the Chief Justice of the United States, and the Senate confirmed the nomination on January 27, 1801 and he served as Chief Justice of the U S for 34 years, the longest tenure of any Chief Justice. He died on July 6, 1835, at the age of 79years.

Similarly, Justice Oliver Ellsworth (1796 –1800) was admitted to the bar in 1779. he was later elected a Senator during which he chaired the committee that drafted the Judiciary Act of 1789, which established the federal court system. On March 3, 1796, President George Washington nominated him the Chief Justice of the United States and the Senate confirmed the appointment the following day. He resigned from the Supreme Court on September 30, 1800.

Justice Hugo L. Black (1939 – 1971) was called to the bar and established a law practice in Ashland Alabama, before moving to Birmingham. In 1927, he was elected and re-elected as a Senator. In 1933, he initiated the legislation providing for a 30-hour work week, which later became the Fair Labour Standards Act of 1938. President Franklin D. Roosevelt nominated him directly to the Supreme Court of the United States on August 12, 1937, and the Senate confirmed the appointment five days later. Black retired from the Supreme Court on September 17, 1971, after thirty-four years of service.

In his own case, Thurgood Marshall (1967—1991) had begun his legal career as counsel to the Baltimore Branch of the National Association for the Advancement of Colored People (NAACP rising to the position of Chief Legal Officer in 1938 and by 1940, he had become the Director and Chief Counsel of NAACP’s Legal Defense and Education Fund. He coordinated the NAACP effort to end racial segregation and in1954, he argued the case of Brown v. Board of Education before the Supreme Court of the United States. President John F. Kennedy appointed Marshall directly from the bar to the United States Court of Appeals for the Second Circuit in 1961. Four years later, President Lyndon B. Johnson appointed him Solicitor General of the United States and on June 13, 1967, the same President Johnson nominated him to the Supreme Court of the United States. The Senate confirmed the appointment on August 30, 1967. Thurgood Marshall retired on attaining 82 years on June 17, 1991after 23 years of service on the Supreme Court.

The incumbent Chief Justice of the U S, John G. Roberts, Jr., was just appointed in 2005. He was Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993, and from 1986–1989 and 1993–2003, he practiced law in Washington, D.C. in 2003, he was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. It is thus our humble submission that distinguished legal practitioner and reputable professors of law be appointed to join regular Judges at the apex courts in Nigeria in order to have a galaxy of seasoned judicial officers with varied and rich experiences to bear in their lofty positions to the benefit of the judicial system, the legal profession and the Nigerian polity at large.