The Convention-Constitution Standoff: Resolving the Most-Senior-Judge Conundrum in Appointment of Substantive Chief Judges for States in Nigeria

Abstract

The head of the High Court of a State in Nigeria is known as the Chief Judge of the State. Section 271(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides that the appointment of a person to the office of substantive Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State. By virtue of section 271(4) of the Constitution, if the office of Chief Judge of a State becomes vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the Governor of the State shall appoint the most senior Judge of the State High Court to perform those functions. However, the Governor as the appointing authority and the National Judicial Council as the recommending authority, have always been at loggerheads over the latter`s insistence that the most senior judge in a State be appointed the substantive Chief Judge of the State. The position of the NJC is based on the convention within the legal profession, which places great premium on adherence to seniority and professional hierarchy. On the other hand, State Governors believe they possess a constitutional discretionary powers to appoint as the substantive Chief Judge of the State, any person qualified for such appointment, irrespective of whether such a person is or is not the most senior judge in the State. The insistence of the NJC that the convention pertaining to seniority must be respected, has more often than not, set the NJC on a collision course with various State Governors in Nigeria, usually leading to stalemates in the process of such appointments which, in turn adversely affect the smooth operations of affected State High Courts and the administration of justice in general. The latest of such conflicts was in Gombe State of Nigeria where the NJC insistence on seniority (conventionalism) and the Gombe State Governor’s insistence on constitutionalism has left the State without a substantive Chief Judge up to the time of this paper. This paper is the first part of a two-armed dispassionate examination of all issues surrounding this seemingly unending conflict, the aim of the authors being to expose the actual position of extant law on the subject with a view to recommending solutions founded on rule of law, realism and democratic constitutionalism. Using the scenario in Gombe State as a case study, and drawing from provisions of the National Judicial policy, the paper discusses the position of rule of law, and why religious adherence to the supremacy of rule of law is the best way out of the persistent logjam. The second part of this discussion, already concluded and sent for publication, is titled “Limits of the Recommending Powers of the National Judicial Council in the Process of Appointment of State Chief Judges in Nigeria: Gombe State as a Case Study”