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Of Supreme Court Transitions and Confirmation Hearings

Reading Olusegun Adeniyi's piece in the May 25 issue of Thisday , was elating in many respects, for he underscored the importance of consultation, access to, and public participation in processes leading up to the confirmation of someone for the exalted office of Chief Justice of Nigeria. It was an appreciation of the high significance of the work the Senate Committee was entrusted with, and his critique of the way the Committee went about its confirmation hearings, is, in our view, very justified. The absence of widely disseminated notice of the confirmation proceedings made the hearing largely inaccessible, not only to affected stakeholders but the entire civil society. Access to Justice had, some time in the past, put arguments similar to those made by Mr. Adeniyi to the Prof. Osunbor Senate Judiciary Committee, when that Committee was considering the confirmation of some Justices now sitting in the apex Court. We suggested to the Committee that, “in future, whenever the Senate Committee on the Judiciary is called upon to consider nominees for the judicial bench, it should first publish a notice to this effect, either in the print or broadcast media and call for submissions from members of the public on the nominees. It may be the case that after an open hearing or after inviting public participation, no one turns up with anything adverse on the nominees; in that case, Nigerians would have seen that your Committee did everything practically possible to ensure the appointment of the most honourable and trustworthy persons to the Supreme Court”.

After several months, the Committee replied, saying it “shares [our] concerns worries and anxieties on a number of issues raised” but that the “procedure on the screening of nominees to the Supreme Court is dictated by the requirements of the Standing Rules of the Senate.“ “Specifically” the Committee said “Order 127 of the Rules states: In consideration of a nominee, the Committee shall not call as witness any person other than the nominee. However, resort may be had to memoranda submitted to the Committee if any.” Was any such memoranda called for in this case? How much publicity was given to attract such memoranda? We will return to this question presently.

We heartily congratulate Hon. Justice Alfa Belgore on his appointment; history and posterity now beckon on him to define the kind of legacy he wishes to be remembered with, even though he has but a relatively short time to stay in that office. Short tenures can actually have unique advantages: reforms can be pursued with consuming speed and gust, and, because time is short, there isn't enough of it to expend on distraction, on pleasing social, or ethnic constituencies, or on any other fringe agenda. There isn't enough of it to permit the kinds of errors that dilute a balance sheet. Take Murtala Mohammend as an example. His tenure as head of state was only about seven months, yet, his legacy surpasses those who were in office for more than seven years. Hon. Justice Belgore, will, all things remaining equal, stay in office as Chief Justice for just about that same period of seven months.

This nation has now thrust upon Hon Justice Belgore great and awesome responsibility for the future and destiny of its people from June the 12 th. The Chief Justice's position is an extremely powerful one, for it unites both the power of judging, and the power of determining the ideology of the Supreme Court that will crystallize on major issues of constitutional rights, duties and freedoms, by the power of selecting justices who adjudicate such controversies. Unlike in some Countries where all members of the Supreme Court sit over all the cases, here, a minority of the total number of Justices of our Supreme Court (5 or 7 depending on the issues involved) constitute a full appeal panel, and pronounce the judgments that become the settled law of our land. That is why the person of the Chief Justice makes a vital difference, and, which again, substantiates the need for the public to know the type of Chief Justice they are getting.

“No system of justice can rise above the ethics of those who administer it”, is a known cliché of some relevance here. And the Chief Justice is the chief of those who administer the justice system. That is also why it is important to understand that a candidate for that office can lift the justice system above every shadow of doubt, every fear of weakness, and every worry of failure. A Chief Justice is beyond a Justice of the Supreme Court; he or she is an administrator, a curator if you will, a gatekeeper of the most veritable institutions. She or he must have unassailable character, unimpeachable antecedence, managerial sagacity, and role-modeling capacity. The Nigerian people should have access to the process that corroborates a nominee's credentials for such high office.

In terms of managing people, those familiar with our Supreme Court environment say Justice Alfa Belgore commands admiration, and popularity amongst his “brethren”. That certainly is a good resume. But, coming back to the main question, this not why the Senate Committee should not open up the nomination process to public participation. When a Supreme Court Justice is nominated to fill the Chief Justice vacancy, the nominee is likely to be an excellent candidate, so that confirmation hearings will, perhaps, mostly be a mere formality. But this may not always be the case; however, whether or not it is the case, it is not good reason why public hearings should not take place.

The judicial branch is an arm of government that exercises the judicial form of power. Since power belongs to the people, those who exercise such power therefore, are accountable to the people. In the case of members of the legislative and executive branches, accountability is exercised through periodic elections, and through other inter-branch checks and balances. Judicial officers are not accountable to the public through these kinds of procedures, for good reason. Under our Constitution, Judges don't contest elections, cannot be recalled by their constituents, cannot be impeached on political grounds alone, do not account for their stewardship to their societies, and have no term limits. But does this mean that everything about Judges is off-limits to the public, and no concept of accountability exists between them? No. Power to confirm appointments is one of the ways the concept of accountability is preserved and worked into the Constitution. It offers an entire body of elected representatives, (lawyer and layman together), the right to publicly scrutinize the credentials of those who will shape the destiny of this Country. It is usually through this power that opportunities are created for those who can help the Senate reach an informed decision to take part in the process.

Indeed, transparent and publicly accessible hearings for judicial nominees should not only take place when the exalted position of Chief Justice is being filled, but should occur when anyone is being considered for judicial office. If to digress a little, we argue that judicial office must be accessible to all those qualified for it, and not only to those who have connections to important circuits, even though they too may be qualified. Isn't this what section 17(2)(a) of our Constitution exhorts us to do when it says that “every citizen shall have equality of rights, obligations and opportunities before the law. Worldwide also (for example England , Canada , South Africa ), access to judicial office is being democratized, and procedures leading up to judicial appointments are more transparent. Judicial vacancies are announced, and interested people are invited to apply. In Nigeria, our sobering experience with the performance of Judges over many years makes us insist that only the very best, chosen from a competitive and merit-based process should be appointed Judges. We must radically shore up the safeguards, much more than the National Judicial Council has done, for judicial recruitment and promotion.

We can also look at this from another way. Those who nominate persons for judicial appointment (and many of these nominees eventually end up as Judges) are not directly affected by the quality of selections they make, and suffer no direct consequences for bad appointments. If a Judge turns out to be incompetent, lazy or corrupt, it is mostly the lawyers, litigants, criminal defendants, prosecutors and the administration of justice that suffer, and not the Judicial Service Commission that made a wrong nomination, neither the National Judicial Council that recommended the appointment. These institutions wont, perhaps, have to appear before the Judge, and suffer the consequences of any misjudgments they made in appointing her or him. Does this not make it imperative for these appointing bodies to open up the process of appointments, and use the most merit-laced and transparent processes in recruiting the sturdiest and finest people to the bench?

Before these people get appointed, let there be public hearings, so that information about them can be gathered from as widely available sources as possible. Otherwise, let us evolve a rule that states that since we cannot sue a Judge directly for being who he or she is, if he or she is unsuitable for office ab initio , and information about this could have been obtained before he or she was appointed if more diligent checks (including a public hearing), were made, but that hearing was not called, and people suffer from this Judge's indiscretion or incompetence, then the Judicial Service Commission, (which nominated him) and the National Judicial Council (which recommended him) will be held vicariously liable, in damages, for the Judge's misconduct or incompetence.

This is what happens in other fields of endeavour. If you employ an incompetent doctor and that doctor harms another by his or her incompetence, the hospital is vicariously liable for negligent hiring, and bears immediate responsibility for not exercising the most scrupulous care in recruiting its practitioners. The same thing for engineers, businessmen and women, editors and publishers. Those who make the recruitments carry responsibility for the choices they make. Among judges however, this is not so. A Chief Judge wishing to reward a loyal Chief Registrar, nominates him or her for office. A Governor wishing to reward party men or women or their wards, uses his influence in the Judicial Service Commission (the Governor appoints a majority of members of the State Judicial Service Commission, the nominating body for Judges) to put these people up for consideration. If those that get these appointments turn out bad for the justice system, it is not the Governor, or the Chief Judge, or even members of the Judicial Service Commissions that are often the most directly affected; no; the victims are those completely by-passed and ignored in the selection process, the court users, prosecutors, the lawyers, and other stakeholders who have to put up with the burden of such careless appointments; that is why we must run checks for the suitability of nominees through procedures that offer stakeholders the opportunity to throw out information about the nominees useful in the consideration of such candidates. And this is not what we are currently doing.

Some have said, where is that written in the Constitution, that we must have a public hearing? No where, perhaps. “But what of that?”, to borrow from Shakespeare's Merchant of Venice ? . Where is it forbidden in the Constitution, we may ask? We have not predicated our case for a public hearing on the exigency of a constitutional clause; rather, we build it on the regnat populus of a constitutional democracy, that says let the people rule, the same way the United States Senate allows public participation at its hearings without any specific constitutional warrant to that effect.

But let us return to the confirmation hearing of the Chief Justice of Nigeria. There are still equally important things to learn about a candidate: what is the nominee's philosophy of the judicial role of the Supreme Court in a “traumatically changing society” such as ours? Should the Supreme Court be a “literalist institution” concerned only with a value-neutral construction of law, or should it be a socially transformative agency, doing what former Indian Chief Justice , P.N. Bhagwati, said, is “finding turn around situations in the political economy for the disadvantaged and vulnerable groups” ? “In a country which has vast differentials,” Bhagwati wrote, the Supreme Court “cannot turn away from the claims and demands of social justice and still honour its claim to be a court for all the citizens…” Will the Nigerian Supreme Court be seen to be “taking suffering seriously” to borrow Upendra Baxi's title phrase?

Will the Judiciary under him take more spirited steps to protect the democratic process? What agenda will a Chief Justice use to insure this? If it takes up to three years for our courts to restore fraudulently appropriated electoral mandates that have only a four-year duration, how imaginatively will a Chief Justice re-tool the judicial process to defend the integrity and supremacy of the electoral process? Yes, the Supreme Court has said that the legislature cannot delimit time within which courts must adjudicate electoral disputes, but how can the separation of powers principle the Supreme Court is advancing be meaningful if the Judiciary does not exercise its own power in a way that wins the respect, not the indignation of the people, thereby accounting somewhat for its exercise of governmental power? If we agree that we need to reform the adjudication of electoral disputes in Nigeria , a nominee Chief Justice should not only pledge to do this publicly, (so that we can hold him or her accountable to this pledge) but suggest how he or she will do this.

In the final analyses, it is not about where a Chief Justice comes from; it is not even about seniority (the NJC has, when pressed, allowed state chief executives to trample upon the hierarchy protocol), it is not whether the Senate Committee members know the nominee quite well because they have appeared before him or her on countless occasions, as they sometimes say: no, it is more than these. It is about putting the democratic process to the most constructive use when it involves highly crucial determinations. If the Standing Rules of the Senate do not help that institution maximize the benefits of a public confirmation hearing, we urge the Senate to take another look at those Rules; however, the fact that the Prof. Osunbor Committee did not widely publicize its hearing, or its request for Memorandum from the public, as its existing rules permit, shows it isn't just the Standing Rules problem.

Once again, we must congratulate Hon. Justice Belgore on his confirmation, and offer him our very best wishes for a most successful tenure, and congratulate too, Mr. Adeniyi for drawing public attention to this important subject.

Joseph Chu'ma Otteh

Executive Director, Access to Justice