On its face, the Nigerian Constitution seems to grant serious discretionary powers to the executive over judicial appointments. For instance, section 238 (2) of the 1999 constitution simply provides, in respect of appointment of Justices of the Court of Appeal, that the “appointment of a person to the office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council.” Subsection 3 of the same section 238 prescribes the qualification of a person seeking appointment as a Justice of the Court of Appeal as follows:
It is worth noting, however, that in reality, appointment of judicial officers at the federal level is entrusted, by and large, in the hands of the Federal Judicial Service Commission (FJSC) and the National Judicial Council (NJC). While the role of these two constitutional bodies might be considered as advisory, they, nevertheless, appropriately constitute fora of consultation or decision-making through which representatives of the legal profession get to express their preferences in matters of judicial appointments. The basic role of these two bodies is to ensure that the processes of appointment of judicial officers are transparent and meet objective international criteria.
Since the issuance of circulars by the Chief Justice of Nigeria and the President of the Court of Appeal requesting nomination of persons for appointment as Justices of the Supreme Court and the Court of Appeal, there has been a heated debate on the best approach and mode of appointment of judicial officers amongst lawyers and the general public. At the core of this debate is the question as to whether or not the bulk of the appointments should come from legal practice, academia or the bench. This, to me, is futile and puerile. What should be of paramount importance is securing a process that ensures that the best candidates emerge whether from the bar, bench or academia. All candidates should be subjected to objective professional competition assessed by a panel which is capable of overcoming partisan political and moral preferences in the selection process. Without an adequate and clearly transparent selection process, any legal system runs the risk of ending up with a judiciary in which professional competence and integrity are trumped and adverse selection prevails.
In the on-going process of appointment of Justices to the Court of Appeal and the Supreme Court, I advocate a merit-based competitive and transparent selection process. I can only hope that the Court of Appeal, Supreme Court, Federal Judicial Service Commission and National Judicial Council will select the best.