Politics of succession at the Supreme Court

"With the reigning Chief Justice of Ni­geria, Hon. Justice Mahmud Mohammed due for retirement on November 10, 2016 when he would have attained his manda­tory retirement age of 70, an alleged plot by the powers-that-be to truncate the age-long seniority rule in the judiciary is said to be in the pipeline".

AS it is in all countries all over the world, except, perhaps, in a few totalitarian states, the Nigerian Supreme Court,

the highest in the land, is the final forum for appeal in the nation’s adjudicatory system. The apex court, as it is often called, has inter­preted the Constitution and has decided the country’s pre-eminent legal disputes since it was established. In fact, virtually every issue of significance or dispute of immense value in the Nigerian society eventually ar­rives at the Supreme Court. Its decisions ultimately affect the rights and freedoms of every citizen and foreigners living in the country. The period from its inception till date, has not only witnessed the departure of several members of the Court, including one of its most influential figures in recent times, Justice Chukwudifu Oputa, (though not Chief Justice), but the arrival of the first female Chief Justice of the Federation, Justice Mariam Aloma Mukhtar GCON (2012-2014).

This period constitutes years, moreover, that were characterized by the continuing recognition of the verities of the Court’s role as a policymaker, of its tripartite role as a legal, governmental, and, yes, an organic political institution. The Supreme Court has limited but exclusive original jurisdic­tion in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the ex­istence of a legal right depends. Indeed, the Supreme Court has continued to manifest its embrace of an activist role, of judicial legislating, of lawmaking, of judicial ac­tivism, even if some of its nuances may well be distinguished from its predecessor tribunals. Above all, the Court, since the amalgamation of the Northern and South­ern Protectorates of Nigeria in 1914 when the pioneer Chief Justice was Sir Edwin Speed, has maintained its revered and enviable tradition of succession based on seniority. Of course, to establish criteria for standards of merit as a basis for selec­tion of individuals qualified to serve in our courts is difficult and definitionally con­troversial, still establishment of criteria for qualification and selection and for bases for evaluative judgements of performance cannot be ruled out. Yet, unfortunately, the media are, of recent inundated with feel­ers of plots by the powers-that-be to po­liticize the succession process of the apex court which is much against the cherished tradition of the court.

With the reigning Chief Justice of Ni­geria, Hon. Justice Mahmud Mohammed due for retirement on November 10, 2016 when he would have attained his manda­tory retirement age of 70, an alleged plot by the powers-that-be to truncate the age-long seniority rule in the judiciary is said to be in the pipeline. Reports have it that there are very powerful forces plotting to alter the seniority rule that would probably see the second-in-command, Hon. Justice Walter Nkanu Onnoghen take over the af­fairs of the Apex Court after Mohammed retires from the Bench come November 10. These sinister forces have reportedly argued that anybody appointed to be CJN must not necessarily be the most senior jus­tice of the Supreme Court. But their lame argument holds no water as more progres­sive lawyers and concerned Nigerians have condemned the move. Not even military rulers, including General Muhammadu Buhari himself, with the enormous powers they wielded, attempted to emasculate the highest court in the land. Even throughout his eight years as a civilian president, Chief Olusegun Obasanjo did not change the rule governing succession at the Supreme Court. If we must consolidate this democratic dis­pensation, then we must not be seen to be dragging it in the mud. In the face of obvi­ous agitations for secession and militancy in the South-East and South-South amidst cries of marginalization, we must be careful not to aggravate the situation due to the am­bition and maladroit hues of a few people in power who want to see Nigeria as their private estate.

Indeed, there are palpable fears that if Pres­ident Buhari succumbs to mounting pres­sures from some Northern elite and their All Progressives Congress (APC) collaborators not to send Justice Onnoghen’s name to the Senate for confirmation as CJN, the South will miss the golden opportunity to clinch the exalted office. It would be recalled that Justice Ayo Irikefe who was CJN between 1985 and 1987 was the last Southerner to occupy the office, about 30 years ago. Unar­guably, the CJN sits as “Primus inter pares” (first among equals) in the intricate power calculus in the nation’s judiciary and one of the first five most important personalities in government. He is the Chairman of the Fed­eral Judicial Service Commission (FJSC) as well as Chairman of the National Judicial Council (NJC). Both commissions are very important as they are involved in the process of promoting anybody to any position in the federal judiciary. Against the backdrop of the perceived attempt by the powers-that-be to northernise all existing institutions of government in Nigeria in an orchestrated and vengeful political gerrymandering, any attempt to undermine the judiciary would spell doom for the country.

Since 1914 when this vast geographical abstraction became one Nigeria, and since 1960 when the country gained independence on a platter of gold from its colonial mas­ters, the headship of all courts, including the Supreme Court is usually based on seniority. In fact, from the High Court to the Supreme Court, the tradition has not changed. It is, therefore, not now that a Southerner will qualify to occupy the seat that the tradition would change abruptly. Yet, it is not about Onnoghen as a person. It is about equity and justice which the Supreme Court indubita­bly symbolizes. But if Onnoghen is denied this opportunity, chances of having another Southerner to occupy the position could be very remote in a country we all lay claim to as ours, as it would be 15 to 20 years from now since most of the justices in the apex court would remain on the queue till they retire at 70. The Supreme Court of Nigeria consists of the CJN and such number of justices of the Supreme Court, not exceed­ing twenty-one, as may be prescribed by an Act of the National Assembly. Presently, the Court is made up of the CJN and fourteen other Justices.

-This was first published by the Sun newspaper