In the course of the past few days, news stories have spread wide and wildly about the move to “promote” the President of the Court of Appeal (PCA) to the Supreme Court.
In the course of the past few days, news stories have spread wide and wildly about the move to “promote” the President of the Court of Appeal (PCA) to the Supreme Court.
On a normal sunny day in Nigeria, that kind of news would only be of interest to lawyers and the family of the affected Justice of appeal. However, insinuations (recently allegedly validated by the PCA himself) are rife that the promotion allegedly championed by the Chief Justice of Nigeria, aims to weaken the Court of Appeal to give the Court a pro-PDP bent ahead of the general elections. The PCA has written to reject the appointment and also allegedly filed suit to stop the appointment. These stories are becoming worrisome and – in line with Nigerian law - should not have lingered this long.
There are four points I wish to make very briefly to show why this drama is TOTALLY unwarranted. The first is that moving the PCA to the Supreme Court is not a “promotion” because under Nigerian law the President of the Court of Appeal is of equal rank with Justices of the Supreme Court. The second is that judicial appointments are different from ministerial appointments and re-assignments. The third is that the issue is in fact inchoate at this time. The fourth is that the PCA has a guaranteed tenure of office. I will try to explain these points in a layman’s language.
First, newspaper reports have almost uniformly reported that there is a plot to “promote” the PCA to the Supreme Court. Generally speaking, the Supreme Court of Nigeria sits at the top of the hierarchy of courts in Nigeria and its head is the head of the Nigerian Judiciary. Next to the Supreme Court is the Court of Appeal, tailed by the federal, FCT and state high courts, which all rank equally with some other appellate courts.
Generally, judges of each court rank lower than those of higher courts; however, the head of each court is of equal rank with judges of the court directly above it. This logic explains why as head of the court of appeal, Justice Salami would not necessarily be too excited to move to the Supreme Court where (among the JSCs) he might have to queue behind those who preceded him in appointment to the Supreme Court. If he goes to the Supreme Court, it is therefore not exactly a promotion.
Second, what is particularly interesting is that this kind of “promotion” is not automatic. To be appointed to the Supreme Court, the candidate is recommended by the National Judicial Council to the President of the Federal Republic who may send the candidate’s name to the Senate for screening. By law, this process may happen without the candidate applying for the job or showing any interest in joining the Supreme Court. This is the practice in the United States too. However, both in the US and Nigeria, the nominated candidate must accept the appointment; it cannot be foisted on him or her. Justices are unlike the President’s ministers; the President cannot “promote” them (as he could a junior minister) or re-assign them, without their consent. Justice Salami is therefore not at risk of a forceful promotion to the Supreme Court.
Third, as I have already highlighted in the preceding paragraph, appointment to the Supreme Court is a process. The Federal Judicial Service Commission only begins it. There is still a long road. The NJC may not recommend the candidate (though the NJC and the FJSC are almost one and the same); the President may not accept the recommendation; and the Senate may not ratify the appointment. Above all, when actually nominated by the President, the candidate can terminate the process by rejecting the appointment, and therefore not face a Senate screening. At this point in the ongoing saga, only so little has happened. It seems just too early for injunctions to start flying around; and even too premature to think that the process, if actually begun, will go far. Besides, the process ought to end now that Justice Salami has said “no”!
And then the fourth point: As President of the Court of Appeal, Justice Salami is guaranteed his stay in office until he clocks seventy. In the mean time, only a proclamation by the President of the country, backed by a two-thirds majority vote of the Senate can remove the PCA from office. Removal from office in this sense includes any situation that involves loss of office without his consent. It is already clear the learned Justice is not in a hurry to relinquish his seat at the Court of Appeal. One only wonders why the “threatened” appointment to the Supreme Court is a big deal if it can only happen with Justice Salami’s consent.
On a final note, this saga is a sad commentary on how distrustful Nigerians have become of the country’s judges. If (as speculated in the press) we need Justice Salami and only about five other justices of appeal to properly adjudicate electoral disputes, out of well over forty justices of appeal, then the country is truly in perilous times. While there is neither the need nor the immediate possibility of removing Justice Salami from office, the country should brace for a time when the learned Justice and his likes will retire. On a different and even sadder note, the public fight occurring in the judiciary does not do a lot to inspire confidence in the judicial arm. This is worrisome at best and should be handled with more dignity, and promptly so. The world is watching.
And just so we remember: this matter should really not have caused as much bad blood as it already has.
Gomiluk may be reached at [email protected]
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