A bill receiving the attention of the National Assembly, seeking five-year tenure for judiciary heads has sparked debates among legal practitioners and stakeholders. Despite the divergence of opinions, the majority sentiment is that the bill may become more of a liability than a solution. YEJIDE GBENGA-OGUNDARE considers the conversations.
Against the current practice of heads of courts holding offices until they attain the retirement age, except they resign, die, become incapacitated and unable to discharge duties, or removed from office for gross misconduct, the House of Representatives recently introduced a bill seeking a five-year tenure for the Chief Justice of Nigeria (CJN), President of the Court of Appeal, 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.
The current practice is unlike what obtains in the legislature and the executive, where the heads of the two arms of government have fixed tenure of office based on the provisions of the 1999 Constitution that stipulates they hold office for four years except they die, resign, become incapacitated or removed from office for gross misconduct.
The proposed legislation, which is part of the constitution alteration bills being considered by the House Committee on Constitution Review, was sponsored by Manu Soro, representing Darazo/Ganjuwa federal constituency of Bauchi State.
The bill is 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”.
The ongoing consideration is part of the sixth round of alteration to the 1999 Nigerian Constitution rolled out by the 10th National Assembly last year. The House of Representatives Committee on Constitution Review has issued a Call for Memoranda, enjoining Nigerians to submit memoranda or proposals for further amendments to the Constitution on a variety of thematic areas including “the Nigeria Police and Nigerian security architecture, public revenue, fiscal federation and revenue allocation, judicial reforms, electoral reforms, traditional institutions, gender related issues, process of State creation, State access to mining, among others, as well as any other matter that will promote good governance and welfare of all persons in the country on the principles of freedom, equality and justice.”
The President of the Senate, Godswill Akpabio had on February 14, 2024, constituted a 45-member committee on constitution review chaired by the Deputy President of the Senate, Jibrin Barau. In the House of Representatives, the Speaker, Tajudeen Abbas also inaugurated a 43-member committee on constitution review at an inaugural ceremony and citizens’ engagement programme organised by the committee with support from the Policy and Legal Advocacy Centre (PLAC) and the UK Foreign, Commonwealth and Development Office (FCDO) on February 26, 2024 in Abuja.
The House also set a December 2025 deadline for the conclusion of the review exercise, to allow enough time for the process before the commencement of the political campaign season ahead of the 2027 general elections.
A controversial bill
The bill is specifically seeking the alteration of Section 29 of the 1999 Constitution (as amended) to include a new subsection which stipulates that any judicial officer appointed as Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judge of the Federal Capital Territory, Abuja, Chief Judge of State, Grand Khadi of Sharia Court of Appeal or President of Customary Court of Appeal of a State, shall serve for a five-year non-renewable term and return to their previous role as judges or shall retire if retirement age is attained, whichever comes first.
The explanatory memorandum said the bill is geared towards enhancing service efficiency and motivation of officers, and to address overstay of heads of courts as well as “bring access to highest justice, bring justice closer to the people, minimize the logistical cost incurred by litigants in accessing justice and ensure timely dispensation of matters.”
According to the bill, which has been read forth first time in the chambers, Lagos and Kano shall host new divisions of the Supreme Court in the South West and North West respectively. The lawmakers are also questioning the provision of section 230 of the 1999 Constitution that creates only one Supreme Court for the whole country without establishing divisions.
The lawmakers equally contend that while addressing the issue of overstay of heads of courts, fixing tenure of office for the heads of courts will enhance service efficiency and motivation of officers. They further emphasised that it is time to establish divisions for the Supreme Court in the geo-political zones of the country to enhance access to the highest justice, minimise the logistical cost of accessing justice and ensure timely dispensation of matters brought before the apex court.
Backed as a two-in-one, the double propositions include: 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) and 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.
Meltdown at Bar
The presentation of these bills has led to fierce debates and diverse opinions among legal practitioners and stakeholders in the judiciary with some concluding that the National Assembly is trying to politicise the judiciary and undermine the efficiency of a functioning system. Those advocating that the current retirement model be retained claimed it has proven to be effective in ensuring stability and fairness within the system.
There are also calls that the National Assembly should not interfere in the affairs of the judiciary in order not to create unnecessary problems for the arm of government as fixing a tenure could shortchange some states and disrupt divisional effectiveness.
Prof Awa Kalu (SAN), a former Attorney-General of Abia State, kicked against time limitation for judicial officers, noting that judicial office is different from others, where limitation of tenure has been tried.
“Judicial office is not that kind of office where you can try that {term limit}. 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?
“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. So, I think that tradition will help us to understand that patience on its own is a virtue. If you are number two, stay until number one retires. That is my reaction to that.
“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,” he said.
Another Silk, Chief Mike Ahamba said the proposal doesn’t make any sense, adding that the idea is being toyed with by people who want to treat the judiciary as a political wing of Nigeria.
“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. 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. 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.
On his part, Mallam 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 a 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.
“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. A supreme court of a country is a policy court. It must speak with one voice at all times. You can’t bring geo-political factor into Supreme Court which is expected to serve everybody,” he added.
For Prof. Itsey Sagay (SAN), the proposal is an indirect way of asking the affected heads of court to retire before their mandatory retirement age.
He said “You can’t be the head of the court and come back again as an 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.
“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 like the idea of having divisions {of Supreme Court}. 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,” he added.
Speaking with The Jury, Chief Yomi Alliyu (SAN), said “I don’t support this. In fact, in many climes, judicial officers have no retirement age. Old broom sweeps better. But for conditions of service, society stands to enjoy when there is no retirement age for judges. The needs of an old judge that has no child in school are far far limited than that of a young judge.”
7 years good for CJN —Ajetomobi
Former chairman of Ikeja Bar, Dave Ajetomobi said “It may not augur well for the Supreme Court, I will suggest a maximum of seven years for the CJN but for the state and federal CJs five years should be okay.
“It’s bad enough that retirement age has been increased to 70 without any consultation with the judicial stakeholders like the NBA and other related bodies. The consensus in the Bar cycle is that 65 years is enough.
“The restriction of tenure of a CJ or president of NICN to five years term will ameliorate the damage created by the increase of retirement age. The Court of Appeal also should be seven years. It is not a case of fairness to judicial officers but it is about what is fair to the society. It enables others who aspire to lead the judiciary to have opportunity to contribute their quotas for good or for the bad. It happens in the armed forces and the paramilitary establishments. It affords opportunities to discover persons that may otherwise be lost due to a CJ serving for 10 years or more.”
National Publicity Secretary of the Nigerian Bar Association, NBA, Mrs Bridget Edokwe, however disagreed, stressing that there is no need changing a flawless system.
She added “I do not support the proposed five-year tenure limitation for heads of courts, such as the Chief Justice of Nigeria (CJN) and the President of the Court of Appeal. The current practice of retirement upon reaching the mandatory retirement age works effectively well and ensures stability. There is no need to change a system that is not flawed.”
For Abuja based legal practitioner, Ugochukwu Osuagwu, “It’s in order if it will help eliminate judicial corruption. But like I have always said, to stop judicial corruption, stiffer penalties should be introduced like death penalty once a judge is found guilty of corruption.”
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