Saving the Supreme Court from crises, By Chidi Anselm Odinkalu

In the end, we have to admit that there is no magic formula to tackle or solve the crises to which the new CJN has drawn attention. Rather, it requires a multidimensional approach beginning with an internal reform of the functioning and management of the Supreme Court itself in order to improve the well-being of its judicial and non-judicial staff. The workload in the courts will have to be much better regulated through appropriate filtering mechanisms.

Over the past fortnight, this column has addressed the multiple dimensions of seizures attrition, retention and replacement in the Supreme Court of Nigeria, as well as pathologies that make them resilient. Given the importance of the Court in the country, it is worth dwelling a bit on how these problems can be solved. Three issues immediately take center stage.

One is occupational health and welfare for Supreme Court justices. The tendency to reduce the triple crisis of attrition, retention and replacement in the Supreme Court of Nigeria to a matter of appointing brilliant scholars or supposedly proven practitioners avoids the real problem. Indeed, records suggest that premature mortality at Court was very harsh on its brightest and best.

For example, Chukwunweike Idigbe was reputed to be arguably the sharpest and most rigorous mind in the Court when he died in 1983. Augustine Nnamani was only the fourth holder of a doctorate in law to be appointed to the Court, after Taslim Elias, George Baptiste Ayodola Coker and Egbert Udo Udoma; and Okay Achike was only the second law professor and third legal scholar to serve on the Supreme Court after Taslim Elias. Adolphus Godwin Karibi-Whyte, another scholar who preceded him on the Supreme Court and who, like Achike, retired in 2002, was an associate professor at the University of Lagos before his judicial career began. Niki Tobi, former dean of the University of Maiduguri law school, later followed.

The Supreme Court doesn’t seem to have been the sweetest working environment for its brightest minds and nothing says it will be any sweeter for any bright mind who agrees to go there now. On the contrary, the Court has been a sort of graveyard, quite literally, for the most brilliant legal minds.

BOSAN’s complaint about its members’ denial of access to the Supreme Court deserves to be treated with suspicion. Unfortunately, it is also the members of BOSAN who quite often instruct the court to the most dubious applications, unnecessarily clogging up the Court’s files and making the work of the Justices unbearable. BOSAN can hardly complain when the judges of the same Supreme Court view many of these same practitioners of questionable professional ethics with determined distrust as they watch the prey with the intention of holding high judicial office.

Historical mortality may be relatively high among Nigerian Supreme Court appointees, but it has never affected any CJN… Over the years, the office has gone from a first among equals to a bit of a constitutional potentate , with infinite ability to dispense favoritism or scarcity. in equal measure to whim around the legal profession. Any reform of the Court that does not address the urgent need to decouple the office of the Chief Justice is doomed to failure.

A major problem with the tribunal is not only that its roles are unmanageable, it is also that, secondly, its working methods appear inhumane and unsuitable to its main stakeholders, who are by design elderly people. In June 2022, he appeared that Supreme Court justices wrote to the CJN at the time complaining about debilitating health and welfare failures, including the failure to provide housing and research assistants. In particular, their letter lamented that there had been no judges’ meeting throughout the COVID-19 crisis, pointing out that the quality of healthcare in court had deteriorated to the point where “there there is a general lack of concern”. for judges who require immediate or emergency medical intervention. These complaints naturally raise the possibility that the death rate as a form of Supreme Court attrition is avoidable.

This naturally leads to a third question of Court leadership. Historical mortality may be relatively high among Nigerian Supreme Court appointees, but it has never affected any CJN. This is surprising as many would think that the CJN, with the multiple portfolios and mandates it holds, would be very stressed. Over the years, the office has evolved from being a first among equals to a bit of a constitutional potentate, with an endless ability to dispense patronage or scarcity in equal measure as it pleases around the legal profession. Any reform of the Court that does not address the urgent need to decouple the office of the Chief Justice is doomed to failure.

It is therefore not surprising that the recent occupants of the office seem to have been defeated by allegations on the frontiers of judicial integrity. In three years since 2019, Nigeria has had three Chief Justices. Among these three people, two left their functions prematurely in circumstances related to negative imputations on the independence and the integrity of the judiciary. Indeed, it has been said that the penultimate CJN has left the bench and the Supreme Court “in a mess”. About the dismissal of his predecessor, The Economist wrote that it was “not merely unusual; it was also illegal. In this case, it emerged that the judiciary was deliberately complicit in its own defenestration, itself evidence of deeper integrity issues with this branch of government.

When legitimate issues of judicial integrity can be raised at this level, it becomes rather pointless to focus on access to appointments as a panacea, as even the appointments process would be corruptible and likely corrupt. In public perception, this is largely what the current situation is with judicial appointments in Nigeria. Many believe – and there seems to be evidence to support this claim – that the appointments have become a joint venture of politicians and legal insiders. When BOSAN complains that its members deserve a look, citizens scoff at the fact that BOSAN members wish to fit into this duopoly with virtually no altruistic goals in sight.

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Indeed, in the face of these, the problem of which Chief Justice Ariwoola complains cannot be changed even if we were to triple the size of the court establishment from 21 to 63 or, even worse, implement the utterly unfortunate and impractical idea of ​​decentralizing supreme power. Court to each geopolitical zone of the country as some have advocated. Also under these circumstances, legislating for judges to serve until after eternity, as suggested by Afe Babalola SAN, would indeed be a very bad idea.

These are by far the main causes of the attrition, retention and replacement crises on the Supreme Court. As can be seen from this breakdown, appointment or replacement are not necessarily part of it. Indeed, in the face of these, the problem of which Chief Justice Ariwoola complains cannot be changed even if we were to triple the size of the court establishment from 21 to 63 or, even worse, implement the whole unfortunate and impossible ideato decentralize the Supreme Court in each geopolitical zone of the country as some have advocated. In these circumstances also, to legislate for judges to serve until the aftermath of eternity, as Afe Babalola (SAN) suggestedwould be a very bad idea indeed.

It is important, however, not to completely ignore BOSAN’s plea to look to the ranks of its members for Supreme Court appointments. Former CJN, Mohammed Lawal Uwais, explained that he instituted the policy of limiting Supreme Court appointments to sitting appellate justices only because “there is a question of integrity. If you were a judge in the High Court or the Court of Appeal before coming to the Supreme Court, you would have done cases in which it would have been discovered whether you were a corrupt person.

It should be remembered that the Chief Justice governs advancement to the privilege of SAN. If he says he is unable to trust the integrity of the people they choose to favor over rank, then it is not a response to the Supreme Court appointments crisis to suggest that the response lies in choosing from among the ranks of people whose integrity cannot be guaranteed. What needs to be done in the face of this claim is not to insist on preferring people from these ranks to the Supreme Court, but to reform the advancement system first in order to guarantee the rank of SAN as a quality mark of unquestionable integrity and excellence, which can hardly be said to be currently.

In the end, we have to admit that there is no magic formula to tackle or solve the crises to which the new CJN has drawn attention. Rather, it requires a multidimensional approach beginning with an internal reform of the functioning and management of the Supreme Court itself in order to improve the well-being of its judicial and non-judicial staff. The workload in the courts will have to be much better regulated through appropriate filtering mechanisms. This will require a combination of legislation and reform of court rules and doctrines. Standards of judicial ethics at all levels will need to be improved. If this is done, attention to appointments could be part of the package. In the absence of these reforms as a whole, focusing solely on appointments will not be part of the solution. On the contrary, it will only aggravate the problem.

Chidi Anselme Odinkalulawyer and teacher, can be reached at chidi.odinkalu@tufts.edu.