Editor’s Note: Today we publish the 2016 Report on Nigerian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Solomon Ukhuegbe, Department of Public Law, University of Benin, Nigeria; Ph.D. (Osgoode Hall), Barrister; Chima Cletus Nweze, Justice, Supreme Court of Nigeria; Ph.D. (University of Nigeria)
I. Introduction[1]
The Supreme Court of Nigeria currently comprises the Chief Justice of Nigeria and sixteen other Justices. Although the statute of the Court envisages as many as twenty-one, the present size is the largest in the history of the Court. Recent Chief Justices have resisted further expansion of the bench. Compulsory retirement age is set by the Constitution at seventy,[2] but Justices may retire at sixty-five. Justices almost always serve out their tenure. Since 1999, for example, there has been only oneretirement before the age of seventy (illness). However, high membership turnover, because Justices mostly get appointed about the age of sixty (the average appointment age of the present bench is 59.5 years), means there are frequent vacancies on the bench. In 2016, membership turnover was about 20 percent. (Three Justices retired upon attaining seventy while four new Justices were appointed.) At present, only fifteen members are participating in the work of the Court due to recusal of two Justices because of corruption investigations.
The Supreme Court was established in 1956 (as the Federal Supreme Court) and was initially subject to the appellate jurisdiction of the United Kingdom’s Judicial Committee of the Privy Council, until 1963 when it became a final court of appeal in the Nigerian legal system. Nigeria has a two-tier appellate court structure comprising the Supreme Court and the Court of Appeal below it. During its sixty-year existence, 108 Justices have served on the Supreme Court. The current Chief Justice, Walter Onnoghen, the sixteenth, took office on 7 March 2017, although he had acted in that capacity since 10 November 2016 when the fifteenth Chief Justice retired. In 2016, there were four female Justices on the Court, the largest number ever. This is significant because only a half-dozen women have served on the Court, and the first appointment was only in 2005. However, women account for nearly a quarter of all appointments to the Court since that year.
The Court never sits en banc. It conducts most business in panels of five. However, seven Justices (‘Full Court’) are empanelled ad hoc by the Chief Justice for constitutional cases and for reconsideration of the Court’s precedents. In 2016, about 20 percent of all cases were heard by the Full Court, although this was rather peculiar as most of these were election-related (which usually involve constitutional issues) following the 2015 general elections in Nigeria. (In practice, the regular five-Justice panels sometimes also hear appeals raising constitutional issues, although it is not clear why this is so.) Every Justice on a panel is required to write an opinion in every case he participates in. This practice is a modified form of the seriatim opinions of English appellate courts because unlike the former, one Justice is assigned writing the primary opinion, which is circulated to other members of the panel. When the panel is split, the assignment is given to one of the majority Justices. Other Justices are required to write their own opinions as well, although frequently they are short concurring opinions, or even merely a statement aligning with the primary opinion. Dissents are rare. This strong consensus norm is, however, weakened by occasional dissensus on justification even where there is agreement on whether the appeal is allowed or refused. All judgments are read in open court.
The business of the Court is mainly private law (including commercial law), criminal law and civil procedure. While rights cases are uncommon, constitutional rights are sometimes considered in criminal appeals. That said, the Court’s output is low in rights jurisprudence, international law and social policy.
II. The Constitution and the Court
The jurisdiction of the Supreme Court is set out directly in the Nigerian Constitution (sections 222, 223). While it has no advisory jurisdiction (abolished since 1963), it has limited original jurisdiction. But its purely appellate jurisdiction is the source of at least 99 percent of caseload annually (100 percent in 2016). The Supreme Court has the exclusive jurisdiction to hear appeals from the Court of Appeal, every decision of which is potentially appealable to the Supreme Court, at least with leave of either Court. Leave is not required for any appeal from decisions of the Court of Appeal in any civil or criminal proceedings on any question of law, or any question as to the interpretation or application of the Constitution. In addition, the Supreme Court must hear an appeal on any question as to whether any of the fundamental human rights provisions have been, are or are likely to be contravened in relation to any person, or an appeal for review of a death sentence imposed by a lower court. It may also hear appeals from the Court of Appeal on any question as to whether a person has been validly elected under the Constitution to the office of President, Vice President, Governor, or Deputy Governor, or whether the term of office has expired or has ceased, or whether the office has become vacant.
The original jurisdiction enables direct access to the Supreme Court in legal disputes between the central government and the States, or between the central legislature and the President or a State or a State legislature. This jurisdiction therefore serves federalism and the separation of powers functions. In addition, there is a quasi-original jurisdiction to entertain reference of ‘substantial questions of law’ from the Court of Appeal.[3]
Because of its extensive jurisdiction, the business of the Supreme Court consists mostly of mandatory appeals. It has no effective means of regulating the volume or content of its docket, and hence has almost no influence on its agenda. The result is that the Court is under severe caseload pressure and has significant arrears of work, mostly routine appeals. Except for criminal appeals and a few other categories, it takes perhaps up to ten years before an appeal is heard.
III. Constitutional Controversies
Appointments to the Supreme Court, including the Chief Justice, are made by the President on the recommendation of the National Judicial Council (NJC). This twenty-member body, established by the extant Nigerian Constitution (1999), has a mandate that includes recommending persons for appointment to the superior courts and the headships of the courts, including the Chief Justice of Nigeria. In October 2016, on the eve of the retirement of the 15th Chief Justice, the Council recommended to the President to appoint the ranking Justice, Walter Onnoghen, as the sixteenth Chief Justice. It has been a consistent practice since the appointment of the fifth Chief Justice in 1979 for the recruitment of the Chief Justice to be made from within the Supreme Court strictly based on seniority. Ten successive appointments of Chief Justices spanning democratic rule and military dictatorship (1983, 1985, 1987, 1995, 2006, 2007, 2009, 2011, 2012, and 2014) have adhered to the seniority preference. It was a surprise, therefore, that the President delayed accepting the recommendation of the NJC for four months (although in the meantime he appointed Justice Onnoghen as Acting Chief Justice immediately, the fifteenth Chief Justice retired in November 2016).
Although the government did not make its position officially known, it was clear that its view was that the recommendation of the NJC on the appointment of a Chief Justice was not necessarily binding. While it had some support within the legal profession and the public, the government’s position was generally considered unfavourably as a thinly veiled attempt to take control the judiciary. Even if the position taken was noble, it was clearly misguided. Section 231(1) of the Constitution provides that,
The appointment of a person to the office of the Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
Before the present Nigerian Constitution, which created the NJC, the appointment of the Chief Justice was firmly in the hands of the executive. Under the 1960 Independence Constitution, the appointment was made by the Governor General on the advice of the Prime Minister,[4] and in the 1979 Constitution the appointment was ‘made by the President in his discretion.’[5] The difference between the two was that the former was a Westminster-type constitution, with executive power vested in the Prime Minister and his cabinet, while the latter is a presidential constitution. There is, however, a clear shift in the present Constitution. The President is merely the titular appointor with only the power of formal appointment. He no longer has a free hand to select the Chief Justice, and indeed has no discretion at all since the NJC recommends only one person for appointment. In such a system, the best practice is that the recommendation is binding and where, in exceptional circumstances, the President does not accept the recommendation, he should disclose his reasons, and must under no circumstances appoint a person not recommended.[6]
At any rate, before 2016 on six consecutive occasions with three Presidents under the present Constitution, recommendations by the NJC for appointment of the Chief Justice had been accepted without demur. The sudden pretence to a presidential prerogative or discretion in the appointment comes too late in the day. The whole purpose of the NJC and its mandate is to secure the autonomy of the judiciary.[7] The NJC is essentially a committee of the judiciary. It is headed by the Chief Justice and all but seven members are judges or retired judges. This ensures that the appointment and discipline of judges are completely insulated from interference by the government. If the apparent position of the government is accepted, nothing stops it from extending it to the appointment of other Justices of the Supreme Court, who are also appointed by the President on the recommendation of the NJC. This would effectively create a presidential veto on judicial appointments, a power that the Constitution assigns to the Senate by requiring confirmation of such appointments.
The controversy ended happily on 8 February 2017, when, after four months, the presidency yielded to public pressure by accepting the NJC recommendation and sending the candidate to the Senate for a confirmation hearing. Justice Walter Onnoghen secured legislative confirmation on 1 March and took office 7 March as the sixteenth Chief Justice of Nigeria. This was an important victory for judicial independence. A critical indicator of the institutionalization of the Supreme Court of Nigeria during the past fours decades is the stability of its recruitment regime and its insulation from political interference.
IV. Major Cases
A. Separation of Powers
- Governor, Ekiti State v. Sanmi Olununmo (2017) 3 NWLR (Part 1551) 1
This case decides a constitutional matter of high importance politically in Nigeria—the security of tenure of elected local government councils. Despite that, the case was assigned to a regular five-Justice panel rather than the Full Court. Nigeria has 774 local councils. While the Constitution guarantees their democratic character as elected bodies, it vests in the State’s legislative competence to regulate the councils:
The system of local government by democratically elected local government councils is under this Constitution guaranteed, and accordingly, the Government, of every state shall…ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.[8]
On the face of the text, the only apparent limitation of legislative regulation of local councils by the government of a State is the guarantee that they must be democratically elected. Yet, the import of this was never clear. Laws regulating local government everywhere in Nigeria often vest the State governor with the power to dissolve the councils before the expiration of their elected tenure. Such laws often provide a pretext for State capture of the councils and the replacement of elected councils with compliant unelected ‘caretaker committees.’ The constitutionality of one such law was challenged in this case. The Local Government Administration (Amendment) Law, Cap. L11, Laws of Ekiti State (Southwest Nigeria) stipulated a tenure of three years for elected council members subject to the following proviso in section 23B:
(1). Provided always that the governor is by this law empowered to dissolve local government councils for overriding public interest subject to the two-thirds majority approval of members of the House of Assembly;
(2). Such dissolution shall not exceed a period of twelve calendar months wherein the governor shall have power to appoint a seven-member Caretaker Committee out of which a chairman shall be appointed pending the conduct of election to occupy the office of the chairman.
Local government councils in the State were elected in December 2008 for a tenure of three years. However, all sixteen local councils were dissolved by the Governor in October 2010 and caretaker committees were appointed to run the councils pending elections. It was argued on behalf of the government that nothing in section 7 of the Constitution should restrict the legislature from enacting a law empowering the Governor to dissolve local government councils in the State. The Supreme Court rejected this claim as ‘an unbridled affront’ to the Constitution. Instead, stated the Court,
Having thus guaranteed the system of local government by democratically-elected government councils, the Constitution confers a toga of sacrosanctity on the election of such officials whose electoral mandates derive from the will of the people freely exercised through the democratic process. Put differently, the intendment of the Constitution is to vouchsafe the inviolability of the sacred mandate which the electorate, at that level, democratically donated to them. …Simply put, therefore, the election of such officials into their offices and their tenure are clothed with constitutional force. They cannot, therefore be abridged without breaching the Constitution from which they derive their force. The only permissible exception, where a State governor could truncate the lifespan of a local government council which evolved through the democratic process of elections, is ‘for over-riding public interest’ in a period of emergency.[9]
This categorical position of the Court on the constitutional security of tenure for local councils will engender democratic consolidation in Nigeria. Undemocratic governance at that level cannot be expected to augur well for representative government at State and national levels. Although not entirely novel, as there were already affirmative lower court precedents on section 7 of the Constitution, this Supreme Court decision will put the matter beyond doubt. The decision places a high threshold for lawful interference with the tenure of councils, as a ‘state of emergency’ requires a specific proclamation under the Nigerian Constitution for a limited number of purposes.[10] The occasions of lawful interference with council tenure should therefore be relatively rare.
Although there was no dissent in this case, Justice M.D. Muhammad disagreed that the Ekiti State law was unconstitutional, but found that the Governor acted unlawfully by the terms of section 23B of the law. In his view,
A community reading of [both the Constitution and the legislation] makes one conclusion necessary: that the Ekiti State House of Assembly is empowered to make laws for the function of local government councils in the State provided such laws do not temper [sic] with or abrogate the guaranteed existence of the democratically elected councils in the State.
In the case at hand, I am of the firm and considered view that section 23B of the Ekiti State Local Government Administration (Amendment) Law which empowers the governor to dissolve democratically elected councils “for over-riding public interest subject to the two-thirds majority approval of members of the House of Assembly” only is not by its tenor inconsistent with section 7(1) of the 1999 Constitution that guarantees the existence of the councils. What is unconstitutional is the use to which the Governor invoked his powers as lawfully conferred by the legislation. A lawful resort to the section presupposes the existence of facts from which the “over-riding public interest” behind the dissolution of the council(s) by the governor may readily be inferred. In the instant case, the appellants have failed to demonstrate these facts. Where, for example, the peaceful function of a local government council, for whatever reason, has become impossible, the House of Assembly may by a resolution of two thirds majority approve the Governor’s request to dissolve the council(s). It is unthinkable to imagine that such a situation would engulf the entire sixteen councils at the same time. Even if the sixteen local government councils had been so affected, it remains the appellants’ burden to so establish. Having failed to discharge this burden, the lower court is right not only in its decision that the trial court had wrongly declined jurisdiction but also in the decision…that, on the merits, the governor’s dissolution of the sixteen democratically elected councils was unconstitutional and void. The governor’s exercise of his powers under the enabling law is arbitrary and unpardonable.[11]
The extent that the section 7 guarantee of “democratically elected local government councils” does not trump a law granting the governor power to sack the councils may suggest that Justice Muhammad understates the normative significance of the constitutional provision. However, his less categorical approach to reading the provision implicitly acknowledges due deference to the legislature, especially as section 23B of the Ekiti State law contains the democratic safeguard of two-thirds majority legislative approval of the Governor’s exercise of the statutory power in the “over-riding public interest.”
B. Rights and Freedoms
- Orji Uzor Kalu v. Federal Republic of Nigeria (2016) 9 NWLR (Pt. 1516) 1
This case is an important contribution to the execution of anti-corruption policies in Nigeria. The Supreme Court ended an abuse of legal process politically-exposed persons (PEP) used to frustrate criminal investigation and prosecution initiated against them. Using the pretext of enforcing their constitutional rights against anti-corruption and other law enforcement agencies, PEPs seek, and sometimes secure, injunctions enjoining these agencies not to arrest or prosecute them until the determination of suits to enforce their fundamental rights. While their “gagging suits” drag out in court, the pressure from law enforcement wanes.
The appellant, Mr. Orji Kalu, a former State governor, filed a suit to enforce his constitutional rights and obtained an ex parte order from a High Court restraining the Economic and Financial Crimes Commission (EFCC) from arresting him. EFCC was investigating him for corruption and money laundering committed while he was governor. Despite this, EFCC filed charges against him in a Federal High Court. He unsuccessfully sought to quash these charges with the injunction.
The Supreme Court held that it was improper to use legal processes to “muzzle” or prevent a law enforcement agency from discharging its statutory functions, especially the investigation and prosecution of crimes. As the Court pointed out, the constitutional rights of personal liberty and freedom of movement are qualified by the public interest to bring a person before a court in execution of a court order or upon reasonable suspicion of his having committed a criminal offence.
For a person to rush to court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law.[12]
- Mathew Nwokocha v. Attorney-General of Imo State (2016) 8NWLR (Pt. 1513) 141
One of the constitutional guarantees to safeguard fairness in the criminal process is the right of “every person who is charged with a criminal offence [to] have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”[13] This right is critical in a society with a large illiterate population. The Supreme Court has held that the use of an interpreter was mandatory where a person charged with a criminal offence does not understand the language used in the trial and should be entered in the trial record.
…[W]here an interpreter is provided at the commencement of the trial and a record of this is made, it is desirable, and indeed a constitutional duty of the trial judge to record this fact also on subsequent days of the trial when use is made of the interpreter. Where however the judge fails to make a record of the use of the interpreter in subsequent days of the trial, the trial is not per se thereby vitiated.[14]
In the present case, the Supreme Court clarified the consequence of failure to record the use of an interpreter throughout a trial. The defendant was charged with armed robbery and was convicted and sentenced to death. The trial record showed that an interpreter was used when the charges were read and his plea taken. But there was no record of use of an interpreter subsequently during the trial. One of the grounds of appeal was that failure to use an interpreter throughout the trial was denial of a fair hearing and hence vitiated the trial.
The Supreme Court surprisingly disagreed. According to the Court, ‘Once it is shown that there was an interpreter at the commencement of the trial, there is a presumption of regularity that the interpreter was present on subsequent days, even though not so recorded, unless proved otherwise.’[15] It is not clear why the burden should be on the defendant to show that he was denied his constitutional right to be assisted with an interpreter where the record of the trial is silent on the matter, especially where the defendant is charged with a capital offence. The constitutional right becomes meaningless in the circumstances. Perhaps what partly swayed the Court was the failure of the defence counsel to raise the matter during the trial.[16] Even that, however, does not justify why the constitutional right did not seem to carry much weight in the Court’s consideration.
V. Conclusion
The Supreme Court of Nigeria is a strong and autonomous institution. The prolonged stability of the Court and absence of any direct political interference has resulted in the accumulation of diffuse support. There is growing public trust in the Court’s resolution of important political issues. The election cases, which are not reviewed here due to space constraint, where the Court resolved issues of credibility of elections, the role of political parties and innovative use of electoral technologies, confirm the significant level of trust political actors and the public have in the Court.
Perhaps the next set of Supreme Court Justices may include persons from outside the judiciary for the first time in nearly four decades as part of a plan to diversify recruitment, portending important changes for the Court. But, unfortunately, there is as yet no plan to relieve its present caseload pressure, which puts the Court under significant operational stress.
[1] See generally, Solomon Ukhuegbe, ‘Recruitment and Tenure of Supreme Court Justices in Nigeria,’ https://dx.doi.org/10.2139/ssrn.2034920
[2] Constitution of the Federal Republic of Nigeria 1999, s 291(1).
[3] Constitution, s 295(3).
[4] S 105(1).
[5] S 211(1).
[6] See Report of the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, UN Doc A/HRC/11/41 (2009), para 33; The Commonwealth, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (British Institute of International and Comparative Law, 2015) 51-56.
[7] Some scholars consider this claim unsubstantiated. See Nuno Garoupa and Tom Ginsburg, ‘Guarding the Guardians: Judicial Councils and Judicial Independence’ (2009) 57 AJCL 201, 228. (‘We also found little evidence in favour of the widespread assumption that [judicial] councils increase quality or independence in the aggregate.’)
[8] Section 7(1).
[9] (2017) 3 NWLR (Part 1551) 1, 33 (Nweze, JSC).
[10] Section 306.
[11] (2017) 3 NWLR (Part 1551) 1, 45-46.
[12] (2016) 9 NWLR (Pt. 1516) 1, 19-20.
[13] Constitution, s 36(6)(e).
[14] Anyanwu v. The State (2002) 13 NWLR (Pt. 783) 107, 127 [emphasis added].
[15] (2016) 8 NWLR (Pt. 1513) 141, 188
[16] ‘It is borne out on record also that the appellant was represented by counsel at the trial and he did not object to the proceedings on account of absence of an interpreter. The right, having been lost is now too late in the day and cannot be revisited. It is an afterthought.’ Ibid., 164.
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