12th October, 2015

Hon. Justice Mahmud Mohammed, CJN
Chairman

National Judicial Council
Supreme Court Complex
Three Arms Zone
Central District,
Abuja.

Your Lordship,

Respectful Demand for the Cancellation of the On-going Process to Appoint 25 Judges of the Federal High Court (FHC)

We send warm greetings.

Following the ongoing recruitment exercise to appoint 25 new judges for the Federal High Courts (FHC) across Nigeria, Access to Justice made a Freedom of Information (FOI) request to your Lordship as Chairman of the Federal Judicial Service Commission as well as to the Chief Judge of the Federal High Court, Hon. Justice I.N. Auta requesting information of the criteria adopted to fill the judicial vacancies. Our requests were responded to by letters dated 27th August, 2015 and 8th September 2015 respectively and are hereby attached for ease of reference.

In view of the letters received, we write to draw your Lordship’s attention, as well as the attention of the National Judicial Council to significant breaches of the recent Revised National Judicial Council Guidelines and Procedural Rules, 2014 (hereafter “Revised Guidelines”) applicable to the recruitment of Judges of superior courts of record. The breaches of the said Guidelines are considerable, and if the current recruitment is allowed to proceed, it would seriously undermine the integrity of the reforms made in the Revised Guidelines. For this reason, we urge the National Judicial Council (hereafter NJC) to hold the process leading to the selection and nomination of candidates for the existing vacancies in the Federal High Court (FHC) to be in manifest and substantial contravention of the Revised Guidelines and is irredeemably flawed; and to direct that the process be begun afresh. We also urge the NJC to insist that any fresh exercise must adhere with, and be in compliance with the Revised Guidelines 2014.

The Revised Guidelines seek to ensure openness, competitiveness, merit and transparency in recruitment processes as well as safeguard judicial appointments from being lobbied and politicized. The current Federal High Court recruitment has been done in ways that conflict with the core goals of the Revised Guidelines in the following areas:

Transparency and Accessibility
Rules 3 of the Revised Guidelines provides that the Judicial Service Commission “shall:

(i)    call expression of interest by suitable candidates by way of public notice placed on the
        website of the Judicial Service Commission / Committee concerned, notice Boards of
        the Courts and notice Boards of Nigeria Bar Association Branches;

Rule 3 of the Revised Guidelines clearly mandates the publication of a Public Notice of existing judicial vacancies calling for an expression of interest by suitable candidates in at least 3 publicly accessible forums: the website of the JSC/FJSC, Notice Board of Courts and Notice Board of the NBA Branches. The word “shall” makes it mandatory that a call/ announcement be made, in the stipulated forms, for interested candidates to express interest to fill the vacant positions. According to Rule 3(3) of the Revised Guidelines, such a call for expression of interest/Nomination must bear a closing date.

This rule was clearly not followed in the current recruitment process. According to letter signed by Mrs. B.A. Bashir, OON, the Secretary to the Federal Judicial Service Commission, the only publication made on the existing vacancies was an advertisement placed on the website of the Federal High Court. Unfortunately, our investigation reveals that no such call for expression of interest by suitable candidates was made. All that was placed on the website of the Federal High Court was a copy of the letter written to judges, heads of courts, Attorney General of the Federation and the President of the Nigeria Bar Association inviting them to make recommendations of suitable persons for consideration. See the link http://www.fhc-ng.com/appoint.htm We have downloaded this web page and have attached it to this letter as Attachment 3.

In his response to the FOI request, the Chief Judge of the Federal High Court respectfully begged the question. We asked to know the details of the modes and avenues used in publicizing/advertising the available Federal High Court vacancies. His response was to the effect that: “That the mode of and avenues in publicizing the vacancies are as stated in the Rules 3(1)(a)(i)(ii)(iii) of the 2014 Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria”

As we stated above, the only Notice that we are aware of was published at the instance of the Federal High Court and is a letter posted on the website of the Court to specific judicial officers and the Attorney General of the Federation asking for recommendation of “... any fit and proper legal practitioner in Nigeria for consideration for appointment as Judges of the Federal High Court.” This is NOT the form or the substance of what the REVISED GUIDELINES requires. This procedure negates the goals of the NJC Revised Guidelines as information of the existing vacancies was not published in the required forums, neither was information of the vacancies offered to the public or interested suitable persons.

Merit-based Selection Safeguards
In addition to this, there were no appropriate parameters used in shortlisting candidates who were recommended to the Federal Judicial Service Commission and the NJC. In our FOI request, we requested for details of the criteria adopted in drawing up the provisional shortlist of candidates submitted to the Commission as well as to the NJC. Specifically, we had asked: “Was there a panel or committee set up to scrutinize the applications? If yes, please provide us with the names of persons constituting the panel/committee, its head and its terms of reference. If No, provide information on how the selected candidate were shortlisted, by whom they were shortlisted and the parameters of selection.” The Chief Judge of the Federal High Court responded by saying that the professional status of those who recommended the candidates was an initial consideration, followed by the quality of judgment/ruling, the available vacancy for the State and the Federal Character, without more.

Rule 3(4) of the Revised Guidelines provide:
    “Soon after the closing date for the receipt of applications and or nominations, the Chairman of the
    Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits
     consisting of not less than twice the number of Judicial Officers intended to be appointed at the
     particular time and circulate the provisional shortlist together with a request for comments on the
     suitability or otherwise of any of the short listed candidates, as follows:…” (emphasis supplied)

The Rule provides that the provisional shortlist shall be made “on the merits.” The idiomatic phrase “on the merits” is defined to mean: “based on the qualities of someone or something, or on the facts of a situation”.

Most of the considerations that influenced this shortlist, as confirmed by the Chief Judge of the FHC, respectfully miss the mark. Selection on the merits would naturally look at the individual strengths or weaknesses of the candidates without reference to external factors, such as federal character even though that latter factor may come in subsequently. The matters which the Head of the Judicial Service Commission may take into consideration at this stage are defined in Rule 3(6). That Rule provides:

In carrying out the provisional short listing exercise, the Chairman of the Judicial Service Commission /Committee shall take into consideration as much as possible, (i) professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of 6 contested cases in the last S years; (ii) sound knowledge of law, (iii) seniority at the Bar and or the Bench, (iv) Federal character or geographical spread and where necessary and possible, without compromising the independence of the Judiciary or allowing politics to permeate or influence the appointment.

From the response of the Chief Judge of the FHC, it is clear that these considerations were largely excluded from the process. In one paragraph, the Chief Judge had said that the “quality of judgment/ruling” was a consideration for the short-listing. Rules 3 (6)(i) expressly provide that: “the quality of judgments and performance and demonstration of judicial skills” is only relevant “in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court”. Therefore, this was not a legitimate consideration in the case of appointments to the FHC.

General Observations on the Process followed
Your Lordship, we respectfully observe that, in relation to process followed in filling the FHC vacancies, there has been an interlocking sequence of putting the wrong foot forward in each of the required steps established by the Revised Guidelines. The process, from the word go was marred with irregularities and breaches, which began with limiting the range of people who could know of, and could participate in the recruitment and denied otherwise eligible and suitable people the chance to be considered for judicial office. The process adopted for the appointment is now so fundamentally flawed that it is difficult to build anything credible or legitimate upon this sort of foundation or correct the errors at any other stage of the process. Many Nigerians will be disappointed and disillusioned if this process is allowed to produce the next batch of Judges of the FHC. On its part, Access to Justice is deeply concerned that the procedure for filling the Federal High Court vacancies will perpetuate the “mischief” sought to be addressed by the revised NJC guidelines if the procedure adopted is allowed to stand.

May we also observe, respectfully, that, apart from the power to officially communicate the existence of court vacancies to the Chairman of the NJC and FJSC pursuant to Rule 2(2)(a) of the Revised Guidelines, the Chief Judge of the FHC does not have, within the general context of the Revised Guidelines, the powers which he has irregularly exercised in the course of this recruitment exercise. The power to write, “… in the case of appointment to a Federal Court, to the President, Nigerian Bar Association ; or, in the case of appointment to a State Court, to the Chairman of every Branch of the Nigerian Bar Association in the State concerned, asking for nomination of suitable candidates for the proposed judicial appointment and requesting that he/she brings to the notice of suitable candidates the call for expression of interest by each of them” belongs to “…the relevant Judicial Service Commission/Committee” according to the terms of Rule 3(1)(a) and 3(1)(a)(iii). It was therefore wrong of the Chief Judge of the FHC, by himself, to exercise the power.

We therefore urge the National Judicial Council to adjudge the process to fill judicial vacancies of the FHC as fundamentally flawed on the grounds of substantial non-compliance with or breach of the Revised National Judicial Council Guidelines and Procedural Rules, 2014. The process adopted was not transparent, open, accessible and fair and denied a level playing field to all prospective and qualified candidates. They were also not merit-based. Your Lordship will recall that the NJC itself has rejected lists forwarded by the Judicial Service Commissions of some States on the grounds that they did not follow the procedures laid down by the Revised Guidelines. A similar outcome should follow in this case. The NJC should send a strong signal to all Judicial Service Commissions and heads of Court that it will not return to the “business as usual” status quo in relation to judicial appointments and that it will respect its own mandatory policies and rules governing the appointment of Judges in Nigeria. We urge Your Lordship to bring our concerns to the body of the National Judicial Council.

We thank Your Lordship for your consideration.

Yours Sincerely,


Joseph Otteh                                 
Executive Director.