JUDGING THE JUDGE. LESSONS FROM SELECTED JURISDICTIONS by Akinola, O. B.

O. B.
Akinola: Judging the Judge: Lessons from Nigeria and Selected Jurisdictions 374
Judging the Judge: Lessons from Nigeria and Selected Jurisdictions

By
O. B. Akinola, Esq.1
Abstract
One of the unique provisions of the 1999 Constitution is the creation
by statute of the National Judicial Council. This paper explores the
importance of the National Judicial Council in a democratic
dispensation, the powers of the Council and their limitations. In
Canada, the Canadian Judicial Council appoints and sanctions Judges
of Federal Superior Courts. In South Africa and Botswana, the
Judicial Service Commission appoints, disciplines and sanctions
Judges in partnership with the President and the Parliament. Over the
years, the Federal Judicial Service Commission regulates appointment
and discipline of judicial officers in Nigeria at the Federal level.
However, the poser is, how far has the regulatory institution been able
to judge the Judge across these identified jurisdictions? This paper
reviews the role of the National Judicial Council vis-a-vis its powers
and limits under the 1999 Constitution. It also compares the Nigerian
standard with some selected jurisdictions and posits that although
much could be achieved through the National Judicial Council in the
bid to sanitise the Judiciary, much could also be learned from certain
jurisdictions.
1. Introduction
A foray into the Preamble of the 1999 Constitution reveals that the
people of the Federal Republic of Nigeria have resolved under God to
live together in peace as a nation. It reveals further that the people are
desirous of good government, unity, equity and justice. For the wheel of
justice to convey the Nigerian people to their desired promised land, the
power to do justice must be vested in some persons. The procedure for
the appointment, control and extent as well as discipline of Judges must
also be spelt out. With the return to democratic rule in 1999, the
question that readily comes to mind is how far has the Nigerian
populace fared in terms of attaining a just and egalitarian society? If the
1
LL.B (Hons.), B.L, LL.M, Lecturer, Department of Corporate Law Practice,
Nigerian Law School, Augustine Nnamani Campus, Agbani, Enugu State.
omoniyi.akinola@lawschool.gov.ng.
375 Essays in Honour of Dr., The Hon. Justice Iche N. Ndu, FLGS, OFR, KSC, CJ, Rivers State
answer to this question is in the negative, what must be done to restore

the wheels of justice back on the right track towards conveying
Nigerians to their destination? In this wise, the National Judicial
Council as a major regulator of the Nigerian justice delivery sector has a
great role to play in this present democratic dispensation. In the same
vein, Nigeria may borrow a leaf from the judicial innovations of some
selected jurisdictions discussed in this essay.
2. The Nigerian Judiciary at a Glance

The Nigerian judiciary is a creation of statute. The 1999 Constitution by
virtue of Chapter VII2 created the Judicature which comprises of the
Supreme Court of Nigeria, the Court of Appeal, the Federal High Court,
the State High Courts, the Sharia Court of Appeal, the Customary Court
of Appeal,3 Code of Conduct Tribunal, Magistrate Courts, District
Courts, Customary Courts, Area Courts, Juvenile Courts amongst
others. The Nigerian Judiciary is the third arm of Government and its
role in the present democratic dispensation has been indispensable. It is
the branch of government that interprets4 the law. Despite its challenges,
it has helped to entrench democratic practices between the citizenry and
the political class.
There is no gain saying that no egalitarian society can thrive
without a virile judiciary and a sense of justice as it ought to be done.
Therefore, it is apposite that this branch of government that is saddled
with the responsibility of giving justice must be cleansed of bad eggs
and packed with men of impeccable and unimpeachable character. The
poser then is: who judges the judge? The 1999 Constitution makes
provisions for the appointment, tenure, discipline and procedure for
removing a judicial officer. It is apt to examine this in the light of statute
vis-a-vis other jurisdictions.
2
Parts I & II
3
Constitution of the Federal Republic of Nigeria, 199 (as amended), sections
230, 237, 247, 252, 270, 275 and 280.
4
Ibid., Section 6.
O. B. Akinola: Judging the Judge: Lessons from Nigeria and Selected Jurisdictions 376
3. Recent Trends of the National Judicial Council

Since the return to democracy in 1999, the judiciary has had its fair
share of challenges and the pressure has come chiefly from the
machinations of politicians. Most of the Judges that have been indicted
and/or punished by the National Judicial Council were tainted or
tempted by politicians, who, in their desperate bid to win electoral
cases, chased such Judges around in the bid to influence their verdicts.
For instance, the National Judicial Council on the 7th day of October,
2003 suspended the Hon. Justice Egbo-Egbo from office on grounds of
misconduct arising from his granting an order on July 22, 2003 directing
the former Governor of Anambra State (Dr. Chris Ngige) to vacate his
office. In the same vein, the Hon. Justice Stanley Nnaji of the Enugu
State High Court who ought to decline jurisdiction, assumed jurisdiction
and ordered the Governor of Anambra State in the person of Dr. Chris
Ngige to vacate his office in his capacity as the Governor of Anambra
State. As if that was not enough, Justices Chris Senlong and Adamu of
the Plateau State High Court were dismissed based on the
recommendations of the National Judicial Council over their role in the
Akwa Ibom State Gubernatorial Election Petition Tribunal. Unknown to
some of these judicial officers, the National Judicial Council had set up
a committee as far back as the year 2000 to monitor the conduct of
judicial officers.
Many have questioned the rationale for appointment and
elevation of Judges both at the State and Local Government level using
the federal character principle instead of merit. It would appear that this
may account for the crisis of confidence in the sector, as some Judges
need periodic update and must be abreast of legal developments towards
enhancing their full knowledge of the law or grasp of the cases they
handle so as to avoid being tossed to and fro by the highest bidder in
litigation.
In recent times, the National Judicial Council, which is supposed
to monitor and discipline erring Judges, had given the impression that it
was asleep after the earlier mentioned cases. On February 21, 2013,
after years of what looked like slumbering on its responsibility, it
descended heavily on three erring Judges, with one of them directly
linked and another partially, to political matters in their courts.5The

National Judicial Council decided that Justice T.D Naron of the High
Court, Plateau State, and Justice Charles Efanga Archibong of the
Federal High Court Lagos respectively be retired. In reaching this
verdict, the National Judicial Council stated that some of the allegations
against Justice Archibong had to do with politics. He reportedly issued
“bench warrant on some officials of the Peoples Democratic Party
(PDP) for contempt even when the counsel, who was directed by the
court to serve them , filed an affidavit that he had not been able to serve
the contempt application.” This sounds strange. This allegation and
others against him by the National Judicial Council whose investigation
committee found Archibong answerable, urged President Goodluck
Jonathan to direct the Judge to proceed on compulsory retirement.
The President consented to the National Judicial Council‟s
advice and compulsorily retired Archibong from the judiciary on
February 25, 2013 according to the Attorney General and Minister of
Justice, Mr. Mohammed Adoke.
In the same vein, the National Judicial Council asked Governor
David Jonah Jang of Plateau State to immediately retire Justice Naron
“sequel to the „findings‟ by the National Judicial Council that there were
constant and regular voice calls and exchange of information through
SMS messages between Hon. Justice Naron and one of the lead counsel6
for one of the parties to the suit in the Osun State Gubernatorial Election
Tribunal.” Justice Naron‟s action was said to have contravened the Code
of Conduct for judicial officers of the Federal Republic of Nigeria, vide
section 292(1) (b) of the 1999 Constitution, as amended.
The National Judicial Council indicted the two Justices of Appeal
Court, Enugu Division, who delivered judgment in the electoral contest
for Anambra South Senatorial seat in 2003, between Senator
Ugochukwu Uba and Prince Nicholas Ukachukwu over who was the
authentic candidate of the PDP in the election. The legal imbroglio
lasted for so long before judgment was delivered in favour of Uba.
Following Ukachukwu‟s counsel petition, the National Judicial Council
5
Press release by the Director of Information of the NJC vide www.njc.gov.ng
last visited on the 3rd of April, 2013.
6
Mr. Kalejaiye, SAN.
investigated Justice Okwuchukwu Opene and Adeniji, respectively, and

found them culpable of perverting justice in the matter. In the same
vein, former Chief Judge of Anambra State, Justice Chuka Okoli, was
indicted for his controversial role in the impeachment of Governor Peter
Obi.
In terms of their roles in impeachment proceedings, some Chief
Judges were sanctioned in recent past by the National Judicial Council.
One of such is Justice Lazarus Dakyen, the then Chief Judge of Plateau
State who also lost his job because of reluctance to be guided by law in
his participation in the processes leading to the removal of the former
Governor of the State, Joshua Dariye. In the same vein, Justice Jide
Aladejana of Ekiti State Judiciary was dismissed from service for
accepting the illegal position of Acting Chief Judge of the State at the
peak of the crisis that trailed the removal of Ekiti State‟s former
Governor, Ayo Fayose during the Obasanjo administration.
4. The National Judicial Council

One of the major innovations of the 1999 Constitution is the
establishment of a National Judicial Council, which was not in existence
under the 1979 Constitution.7 The 1999 Constitution as amended under
its 3rd Schedule makes provision for other Federal Executive Bodies
such as the National Economic Council, National Defence Council,
Council of States, Independent Corrupt Practice Commission and a host
of other executive bodies at the Federal level. The creation of the
National Judicial Council is a welcome development. This is because
despite the fact that it may seem to be in tune with a unitary
Constitutional democracy whereas Nigeria operates a Federal
Constitution, the presence of such body at the Federal level will check
the excesses and abuses of State Governors who may be inclined to
coerce their various State Judicial Service Commission to do their
bidding.
The composition of the National Judicial Council is provided
under the Third Schedule, Part 1, Paragraph 1, Item 20 as follows:
7
See, Constitution of the Federal Republic of Nigeria, 1999, (as amended) s.
153(1).
The National Judicial Council shall comprise the following

members-
a) the Chief Justice of Nigeria who shall be the Chairman:
b) the next most senior Justice of the Supreme Court who
shall be the Vice - Chairman:
c) the President of the Court of Appeal;
d) five retired Justices selected by the Chief Justice of Nigeria
from the Supreme Court or Court of Appeal;
e) the Chief Judge of the Federal High Court;
f) Five Chief Judges of States to be appointed by the Chief
Justice of Nigeria from among the Chief Judges of the
States and of the High Court of the Federal Capital
Territory, Abuja in rotation to serve for two years;
g) one Grand Khadi to be appointed by the Chief Justice of
Nigeria from among Grand Khadis of the Sharia Courts of
Appeal to serve in rotation for two years;
h) one President of the Customary Court of Appeal to be
appointed by the Chief Justice of Nigeria from among the
Presidents of the Customary Courts of Appeal to serve in
rotation for two years;
i) five members of the Nigerian Bar Association who have
been qualified to practice for a period of not less than
fifteen years, at least one of whom shall be a Senior
Advocate of Nigeria, appointed by the Chief Justice of
Nigeria on the recommendation of the National Executive
Committee of the Nigerian Bar Association to serve for two
years subject to re-appointment;
Provided that the five members shall sit in the Council only
for the purposes of considering the names of persons for
appointment to the courts of record; and
j) two persons not being Legal Practitioners, who in the
opinion of the Chief Justice of Nigeria, are of
unquestionable integrity;
It is pertinent to note that by virtue of section 154 of the 1999

Constitution, the Chairman8 of the National Judicial Council shall be
appointed by the President subject to consultation of the Council of
8
The Chief Justice of Nigeria.
State.9 The 1999 Constitution10 makes express provision for the tenure
of members of the National Judicial Council in such a way that holders
of public office in the Council shall hold such positions in the Council
as long as they occupy the public office whilst ex officio members shall
hold such positions for life and in the case of non-ex officio member or a
member who previously held an office, for a period of 5 years from the
date of his appointment. It therefore implies that the spirit of the 1999
Constitution is against the nomination of a non ex-officio member for
another term of 5 years.11
In terms of removal of the Chairman or members of the Council,
the Constitution provides that a person holding the office of Chairman
or member may only be removed from office by the President acting on
an address supported by two third majority of the Senate praying that he
should be removed for inability to discharge the functions of his office
whether arising from infirmity of mind or body or any other cause or for
misconduct.
The constitution gives both the executive and the legislature roles
to play in the removal of the Chairman or a member of the National
Judicial Council. This is to prevent arbitrariness on the part of any of
these organs of Government. In the same vein, the Constitution by
virtue of section 158 further strengthens the independence of the
judiciary by stating in its subsection 1 that with respect to exercising its
power to make appointments or disciplinary control over persons, the
National Judicial Council12 shall not be subject to the direction or
control of any other authority or person.
9
It is pertinent to add that what is required in case of the appointment of the
Chairman of NJC is consultation and not confirmation.
10
Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections
155
11
Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections
156 (3)
12
The other bodies covered in the aforestated provisions of section 158 (1) are
Code of Conduct Bureau, the Federal Civil Service Commission, the Federal
Judicial Service Commission, the Revenue Mobilisation and Fiscal
Commission, the Federal Character Commission, and the Independent
National Electoral Commission.
In furtherance of the above, item 21 of the third Schedule,

paragraph (I) states that the National Judicial Council shall have power
to-
a. Recommend to the President from among the list of persons
submitted to it by-
i. the Federal Judicial Service Commission, person(s) for
appointment to the offices of the Chief Justice of Nigeria,
the Justices of the Supreme Court, the President and
Justices of the Court of Appeal, the Chief Judge and Judges
of the Federal High Court, and
ii. the Judicial Service Committee of the Federal Capital
Territory, Abuja person(s) for appointment to the offices of
the Chief Judge and Judges of the High Court of the
Federal Capital Territory, Abuja and President and Judges
of the Customary Court of Appeal of the Federal Capital
Territory, Abuja;
b. Recommend to the President the removal from office of the
judicial offices specified in sub-paragraph (a) of this paragraph,
and to exercise disciplinary control over such officers;
c. Recommend to the Governors from among the list of persons
submitted to it by the State Judicial Service Commission
persons for appointment to the office of the Chief Judges of the
High Courts of the States, the Grand Khadis and Khadis of the
Sharia Courts of Appeal of the States and the Presidents and
Judges of the Customary Courts of Appeal of the State;
d. Recommend to the Governors the removal from office of the
judicial officers specified in sub-paragraph (c) of this
paragraph, and to exercise disciplinary control over such
officers;
e. Collect, control and disburse all moneys, capital and recurrent,
for the Judiciary;
f. Advise the President and Governors on any matter pertaining
to the judiciary as may be referred to the Council by the
President or the Governors;
g. Appoint, dismiss and exercise disciplinary control over such
officers;
h. Control and disburse all monies, capital and recurrent, for the
services of the Council; and
i. Deal with all other matters relating to broad issues of policy
and administration
22. The Secretary of the Council shall be appointed by the National

Judicial Council on the recommendation of the Federal Judicial
Service Commission and shall be a legal practitioner.
In reconciling the provisions of section 158 (1) and item 21 of

paragraph (I) in the Third Schedule, the poser is whether the
Constitution which confers some level of freedom and autonomy on the
Council is now taking such powers back in the schedule by stating that
acts such as appointment, dismissal and/or discipline of a judicial officer
shall be recommended to either the President in case of a Federal Judge
or the Governor in case of a State Judge. It is our view that the
executive has a role to play in this respect to prevent arbitrariness
without prejudice to the enormous powers conferred on the Council by
the Constitution in Item 21 of the Third Schedule.
3. Federal Judicial Service Commission

The Federal Judicial Service Commission is a complementary body to
the National Judicial Council. The Commission comprises of the
following members-
a) The Chief Justice of Nigeria, who shall be the Chairman;
b) The President of the Court of Appeal;
c) The Attorney- General of the Federation;
d) The Chief Judge of the Federal High Court;
e) Two persons, each of whom has been qualified to practice as a
Legal Practitioner in Nigeria for a period of not less than
fifteen years, from a list of not less than four persons so
qualified recommended by the Nigerian Bar association; and
f) Two other persons, not being Legal Practitioners, who in the
opinion of the President are of unquestionable integrity.
The Commission‟s advisory powers encompasses advising the

National Judicial Council in nomination of persons for appointment, to
the offices of the Chief Justice of Nigeria; Justices of the Supreme
Court; the President of the Court of Appeal; Justices of the Court of
Appeal; the Chief Judge of the Federal High Court, and the Chairman
and members of the Code of Conduct Tribunal. It also makes
recommendation to the National Judicial Council for the removal from
office of the judicial officers listed earlier.
In addition, the Commission also has power to recommend to the

National Judicial Council in respect of the judicial officers afore listed
with regard to their appointment and dismissal. The Commission also
exercises disciplinary control over the Chief Registrars and Deputy
Chief Registrars of the Supreme Court, the Court of Appeal, the Federal
High Court and all other members of the staff of the judicial service of
the Federation not otherwise specified in the Constitution and of the
Federal Judicial Service Commission. In essence, the Council is to
collaborate with the Judicial Service Commissions of the various tiers of
Government to put the judiciary‟s image in a proper perspective and
restore the hope of the common man in this hallowed arm of
Government. The presence of the Federal Judicial Service Commission
is in line with the spirit and letters of the 1999 Constitution as amended.
5. Procedure for Appointment of Judicial Officers in Nigeria

The procedure and stages for the appointment of judicial officers in
Nigeria are as follows:
1. The Chairman of the Judicial Service Commission will seek
the approval of the Governor of the State or in case of Federal
appointments, the approval of the President stating the number
of Judges required and send a copy to the Secretary of the
National Judicial Council.
2. Nominations shall be called from judicial officers;
3. Candidates shall be shortlisted based on the Curriculum Vitae;
4. Names of shortlisted candidates are circulated to serving
judicial officers and NBA branches;
5. Shorlisted candidates will then fill the NJC FORM „A‟;
6. The Judicial Service Commission will deliberate, screen and
select candidates;
7. The selected candidates‟ names are sent to NBA branches and
serving judicial officers for their comments;
8. The Judicial Service Commission will send the names of
selected candidates to the National Judicial Council for
recommendation;
9. The Governor/President will appoint the Judges on the
recommendation of National Judicial Council.
To my mind, the short listing of judicial officers by

curriculum vitae seems inadequate. There is a need for a
thorough investigation of the person of the would-be judicial
officer vis-a-vis his past records, assignments, appointments and
his personal idiosyncrasies without prejudice to other factors
such as patriotism, integrity and independence of thought and
courage. It is believed that if the appointment process is so
strengthened, it could aid in enhancing the credibility of the
holders of that office.
6. Procedure for Discipline of Judicial Officers in Nigeria

A petition against a judicial officer shall be written to the National
Judicial Council who shall cause such allegations against the judicial
officer to be investigated and make appropriate decision upon the
observance of the principle of fair hearing as enshrined in the
Constitution. The judicial officer being tried is given a copy of the
allegations made against him and the petitioner must be able to
substantiate his allegations with credible evidence.
To our mind, the Nigerian procedure seems secretive and in that
regard only comparable to that of the Canadian Judicial Council. It is
our view that Nigeria and Canada should borrow a leaf from the copious
provisions of the South African Judicial Service Commission Act of
1994 where all issues relating to the discipline of Judges is handled
openly and with fairness. The procedure for trial of Judicial officers in
Nigeria should be more transparent and Judges being tried should be
able to secure legal representation of their choice if need be. In line with
this, it is further suggested that there is the need to amend section 160 of
the 1999 Constitution to reflect the fact that judicial officers or parties
aggrieved with the decision(s) of the National Judicial Council may
appeal directly to the Court of Appeal just in the same way in which
appeals arising from the verdict of the Legal Practitioners Disciplinary
Committee lies to the Supreme Court by virtue of section 9 of Decree 21
of 1994.13
13
Appeals from the decisions of the Committee lies directly to the Supreme
Court. Section 9 of Legal Practitioners Decree No. 21 of 1994 as amended.
Also, there ought to be a time frame within which complaints are

investigated, tried and concluded, which is a practice in Canada. The entire
complaint process, trial to conclusion of the complaint is usually concluded
within a time frame of 3 months in Canada unlike in Nigeria where the time
frame for the aforementioned purpose seems endless, uncertain and
unregulated.
7. Comparative studies:
7.1 The Canadian Case Study 14
The Canadian Judicial Council is a Federal body created under the
Judges Act 198515 with the powers to ensure efficiency, uniformity, and
accountability. The Council has powers to review any complaint or
allegation against a superior Court Judge. The Federal Government
appoints the Judges of the superior Courts in Canada. The Canadian
Province also has a Provincial Judicial Council (PJC) mandated by law
to appoint Provincial Judges subject to approval of the Canadian
Judicial Council which is chaired by the Chief Justice of Canada. There
are 38 other justices and associate Chief Justices of Canada‟s Superior
Courts and the Chief Judges of the Court Martial Appeal Court of
Canada.
The Canadian Judicial Council has powers under the Judges Act
1985 to investigate complaints made by members of the public or the
Attorney General.16 The system also allows judges to react to
complaints against them. The entire investigatory process must be
effective, transparent and objective.
The Chief Justice is not involved in the review of complaints
under the Canadian system. This is because, his conduct can also be
complained against by any aggrieved member of the public. Complaints
are usually expeditiously dealt with so as not to jeopardize the
independence of the judiciary.
The Council was created in 1971,17 it has handled about 15,000
complaints and has dismissed about 5 judges of superior courts.18 In
14
Judges Act (R.S 1985).
15
Supra. www.en.Wikipedia.org/wiki/Canadian-Judicial Council last accessed
on the 26th March, 2013.
16
Complaints can only be in respect to the judges‟ conduct and not decision.
17
www.cjc.gc.ca last accessed on the 12th April, 2013.
order to enhance the efficacy of the Council and give it the publicity it
deserves, a face-book page19 for aggrieved citizens to register their
complaints online has been opened by the Council.
The Canadian Judicial Council comprise of judges unlike what
obtains in Nigeria where legal practitioners are members of the National
Judicial Council.
In Canada, any member of the public can make a complaint to
the Council provided the complaint is about a judicial conduct. The
complaint must be in writing and must specify a specific federal
appointed judge. The Council will then review the matter. Although the
Minister of Justice or a Provincial Attorney General can initiate a formal
inquiry about a federal appointed judge, most complaints come from the
public. If a Provincial Attorney General or the Minister of Justice of
Canada submits a complaint, the Council must appoint an Inquiry
Committee to consider whether a recommendation should be made to
the Minister of Justice to remove the judge from office. The Inquiry
Committee must hold a hearing, normally in public. The Council then
considers the report of the Inquiry Committee and makes a
recommendation to the Minister of Justice.
In furtherance of the above, the Canadian Judicial Council has
the authority to investigate complaints only about Federal appointed
Judges in Canada. These are judges of the federal courts and higher
courts in each province. The Council cannot investigate general
complaints about the justice system, the courts, or the judiciary as a
whole. It cannot change judicial decisions in court cases, compensate
individuals, grant appeals, or address demands for a new trial.
The Canadian Judicial Council does not have jurisdiction over
the lower provincial courts, such as those that hear small claims
disputes, and some family and criminal matters. Where a complainant
wants to make a complaint about a judge in one of those courts, he must
direct his complaint to the Judicial Council in his Province or Territory.
Further, the Canadian Judicial Council does not have the
authority to investigate complaints against court staff or lawyers.
Complaints about court staff are made to the court‟s administration
18
Ibid.
19
Canadian Judicial Council Complaints Forum.
office of the courthouse in question. This is akin to the practice in

Nigeria where the court staff is appointed and disciplined by their
respective State Judicial Service Commissions and the Federal Judicial
Service Commission for Federal Courts.
Furthermore, the Canadian Judicial Council seeks to ensure a fair
process when a complaint is made against a judge. Every complaint is
considered seriously and conscientiously. A complainant does not have
to be represented by a lawyer if he wants to make a complaint about a
judge. He does not need to use a special form to make a complaint to the
Council although the Council for reason of convenience offers one.
There is no fee charged and no deadline for making a complaint. The
Council requires only that a complaint be in writing, about a specified
federal appointed judge and must be with respect to the conduct of a
judge and not his decision. The details of the complaint must specify the
complainant‟s name and address, the name of the judge complained
about; and a description of the judge‟s conduct that the complainant
believed was inappropriate. The Council is committed to reviewing
complaints about the conduct of judges in a way that is sensitive to the
person making the complaint, fair to the Judge who the complaint was
about and credible to the judiciary and the public. While the public must
have a way to voice its concerns about members of the judiciary, the
Judges must be given an opportunity to respond to the allegations of
misconduct. The complaint procedure is set out fully in the Canadian
Judicial Council‟s Complaint Procedures.
The Council takes complaints very seriously and deals with them
as quickly as possible.20 Out of the 200 or so complaints received every
year, the Council concludes the majority of them within three months.21
Where there is the need for further investigation, a copy of the
complaint is sent to the judge in question and the Chief Justice of that
20
A member of the Council‟s Judicial Conduct Committee first reviews the
complaint. Many complaints are dismissed because they do not meet the
criteria for review. For example, some complaints are about a judge‟s
decision in a case, not his or her conduct; others may be about a provincially
appointed judge, rather than a federally appointed judge.
21
www.en.Wikipedia.org/wiki/Canadian-Judicial Council last accessed on the
26th March, 2013.
judge‟s province, with a request for comments. The complainant may

also be asked to provide additional comments.
Some complaints contain serious allegations of inappropriate
conduct against a judge and requires further investigation by the
Council. Such cases may be investigated with the assistance of a lawyer
from outside the Council. The expertise and reputation of the person
chosen in the legal community must be given due consideration. The
lawyer may interview the judge, the complainant, and others who are
connected with the situation, and prepare a report.
In situations where the complaint is not immediately resolved,
the matter may be handed over to a Review Panel for further study. The
Review Panel is composed of up to five members, who are all judges. If
the Review Panel concludes that the complaint has merit, but is not
serious enough to move to the next stage which is a formal hearing by
the Inquiry Committee, the Review Panel may close the file with an
expression of concern, or may recommend counselling for the judge, or
other similar remedial actions.
However, where the complaint is serious enough to warrant the
judge‟s removal from office, the Review Panel may decide that the
Inquiry Committee hears the matter. The Inquiry Committee is
composed of Council members and senior lawyers. If the complaint
comes from a provincial Attorney General or the Minister of Justice of
Canada, the matter may go directly to an Inquiry Committee.
The Inquiry Committee can conduct its own investigation into
the complaint, and hear from the judge, the person who made the
complaint, and others. The Inquiry Committee normally holds a public
hearing, where the Judge and the complainant can attend and give
evidence about the matter that led to the complaint. The Inquiry
Committee prepares a report, which goes to the full Canadian Judicial
Council for discussion. After considering the Inquiry Committee‟s
report, the Council must decide whether the judge‟s conduct has
rendered the judge “incapacitated or disabled from the due execution of
the office of judge.” The Council may recommend to Parliament
(through the Minister of Justice) that the judge be removed from office.
The Canadian Parliament has never had to face such a situation, but
sometimes a judge will retire or resign before that step is taken. When
the complaint has been considered and a decision is reached, the
Council will advise the person who complained of its decision in

writing.
From the above procedure, it is apt to point out that Nigeria
needs a serious overhaul of its complaint process vis-a-vis the
adaptation of favourable measures already in use in Canada such as the
Review Panel, the constitution of the Inquiry Committee. The Canadian
complaint process also reflects the beauty of Federalism because the
Canadian Judicial Council handles complaints only with respect to
federally appointed judges unlike Nigeria where the National Judicial
Council treats complaints against State and Federal judicial officers.
This seems to be a contradiction vis-a-vis the federal constitution which
Nigeria practices.
7.2 The United States of America

In the United State of America, judges are involved in the complaints
review process and the Congress has the power to impeach a judge
found guilty of judicial misconduct. This procedure, in our view, will
not serve the purpose of fairness and transparency in Nigeria, were it to
be adopted; the reason being that there exists the tendency that the
ruling party or the party with the majority of members in the National
Assembly may support the move to impeach a judge who has lawfully
decided cases against its interest or its representatives. Arguably, but
potentially probable, since electioneering is still fraught with grave
misconduct and rigging in Nigeria, a majority on the floor of the
National Assembly may orchestrate the removal of a Judge seen as a
possible threat to their continuous stay in power.
It is the view of this paper therefore that a documentary evidence
of the alleged misconduct against a judicial officer be published through
a transparent process leading to impeachment, assuming without
suggesting that Nigeria wants to toe the line of America. As a matter of
fact, there are other factors which may compromise a judicial officer
such as commercial, tribal considerations and even issues of traditional
chieftaincy titles have created serious debates as to the credibility of
judges and judgments. For example, the sociological upbringing of a
Judge may affect his reasoning and logic in arriving at judicial verdict.
It is apposite to note that a good example is the amendment to the
constitution to provide for time limit for election petitions that have
taken away the right to fair hearing. A Judge that has taken bribe can
just device means of making sure that case is delayed beyond the time
allowed before giving judgment. In the end, the judge can still go away
with it; hence, the social system has a lot to also do; for example, in
Magistrate Courts, some Magistrates work hand in hand with the police
in perpetuating corruption in a way that may not even be traceable to the
Magistrate. The poser still remains: Who will judge the judge?
7.3 The United Kingdom:

In the United Kingdom, complaints against Judges are reviewed at the
early or preliminary stage by an advisory committee made up of
members of the judiciary, the legal profession, the magistracy and the
public. The Judiciary has the final powers to discipline a judge. The
practice in the United Kingdom allows a complainant to complain
publicly in the media.22 Where this is the case, the Judiciary also reports
through the same medium of complaints unlike in Canada where
Canadian citizens are kept in the dark as regards an alleged misconduct
of a judge by the Canadian Judicial Council.
7.4 The South African Case Study

In the past, the appointment of judges in South Africa was made by the
President on the sole recommendation of the Minister of Justice.
Anytime the Minister of Justice feels like, he may consult the relevant
Provincial Judge President on his view on the recommended candidate
for the office of a Judge. However, the appointment process is shrouded
in secrecy. There is no prior scrutiny by the public or the Bar. This gives
us a bench with a political image. In theory, the appointment process in
the past is based on merit.
In recent times, a new system of choosing Judges was approved
through the Constitutional Amendment of 1993 and the enactment of a
Judicial Service Commission Act No. 9 of 1994.
7.4.1 Appointment Procedure and Tenure of Judges in South Africa

Sections 174 to 178 of the South African Constitution deal with the
appointment of judicial officers. Judges may not be members of
22
www.judiciary.gov.uk last accessed on the 12th April, 2013.
Parliament, of the government or of political parties. To select Judges,

the Judicial Service Commission first draws up a list of candidates
which list must have three or more names than the number of vacancies.
The Commission does this after calling for nominations and holding
public interviews.
Then the President, after consultation with the Chief Justice and
the leaders of political parties represented in the National Assembly,
chooses the judges from this selection.
The judges ordinarily serve for a non-renewable term of 12 years,
unless it is extended by an Act of Parliament through the Judicial
Service Commission, a body established in the Constitution itself, and
for which there is also a separate legislation.
Commissioners are involved only with the selection of
permanent members of the higher courts, not with appointing
Magistrates. Magistrates fall under their own special Commission. It
would be quite impossible for the Judicial Service Commission to deal
with the thousands of magisterial applicants. Commissioners all have
other full-time work, and the Commission itself employs only a couple
of part-time staff and they are seriously over-worked.
In the same vein, section 99 of the Constitution provides for the
composition of Constitutional Court and appointment of judges of
Constitutional Court as follows:
(1) Unless the new constitutional text provides otherwise, the
Judges of the Constitutional Court shall be appointed by
the President for a non-renewable period of seven years.
(2) No person shall be qualified to be appointed President or a
Judge of the Constitutional Court unless he or she-
(a) is a South African citizen; and
(b) is a fit and proper person to be a Judge of the
Constitutional Court; and
(c) (i) is a Judge of the Supreme Court or is qualified to be
admitted as an advocate or attorney and has, for a
cumulative period of at least 10 years after having so
qualified, practiced as an advocate or an attorney or
lectured in law at a university; or
(ii) is a person who, by reason of his or her training and
experience, has expertise in the field of constitutional law
relevant to the application of this Constitution and the law

of the Republic.
In the case of Constitutional Court Judges, there is a complex

system which involves the Commission giving the President a
motivated shortlist of four names per vacancy. In situations where the
President declines to appoint anyone on the list, reasons must be given
for that refusal and the Commission will then hold further interviews
and present a further shortlist from which the President must make a
choice.
However, the step-by-step process adopted in the appointment of
judges is that the head of a court will inform the Commission when
there is a vacancy. The vacancy is then published and nominations are
invited of suitable candidates to fill the slot. Written nominations
together with written letters of consent to nomination by the candidates
as well as candidates‟ Curriculum Vitae and completed questionnaires
or application forms are then sent to the secretary who circulates them
to members of the Commission. A sub-committee meets to sift through
the applications, and a shortlist is drawn up which then goes back to the
full committee for consideration. Once the commission has approved
the shortlist, the names of those to be interviewed are published.
7.4.2 Removal of Judges in South Africa

In South Africa, complaints against Judges could be lodged and dealt
with appropriately on the following grounds;
i. allegations that any Judge is suffering from an incapacity;

ii. is grossly incompetent; or
iii. is guilty of gross misconduct.
Any of the above grounds could be investigated and available

information can be placed before the Judicial Service Commission and
Parliament in order to enable these institutions to make a finding
whether a judge suffers from an incapacity, is grossly incompetent or is
guilty of gross misconduct.
Section 14 of the Judicial Service Commission Act of 1994 in
South Africa provides for lodging of complaints as follows:
(1) Any person may lodge a complaint about a Judge with the
Chairperson of the Committee.
(2) When a complaint is lodged with the Chairperson in terms of
subsection (1), the Chairperson must deal with the complaint in
accordance with section 15, 1623 or 17,24 but in the event of a
complaint falling within the parameters of section 15,25 the
Chairperson may designate a Head of Court to deal with the
complaint, unless the complaint is against the Head of Court.
In the spirit and letters of the Constitution and the Judicial

Service Commission Act, a complaint must be-
(a) based on one or more of the grounds26 referred to in
subsection (4); and
(b) lodged by means of an affidavit or affirmed statement,
specifying-
(i) the nature of the complaint; and
(ii) the facts on which the complaint is based.
However, any one or a combination of the following remedial
steps may be imposed in respect of a respondent:
(a) Apologising to the complainant, in a manner specified.
(b) A reprimand.
(c) A written warning.
(d) Any form of compensation.
(e) Subject to subsection (9), appropriate counselling.
23
Section 16 of the Judicial Service Commission Act 1994 empowers the
Committee to recommend appointment of Tribunal in respect of impeachable
complaints against a Judge.
24
Section 17 provides for inquiry into serious, non-impeachable complaints by
Chairperson or Member of Committee (1) If- (a) the Chairperson is satisfied
that, in the event of a valid complaint being established, the appropriate
remedial action will be limited to one or more of the steps envisaged in
subsection (8) as stated in the statute.
25
Section 15 of the Judicial Service Commission Act 1994 provides for lesser
complaints which may be summarily dismissed (a) does not fall within the
parameters of any of the grounds set out in section 14 (4).
26
Some other grounds may include any wilful or grossly negligent breach of
the Code of Judicial Conduct referred to in section 12, including any failure
to comply with any regulation referred to in section 13 (5).
(f) Subject to subsection (9), attendance of a specific training course.

(g) Subject to subsection (9), any other appropriate corrective
measure.
In essence, South Africa operates an open investigative process

with respect to a judge‟s alleged misconduct which, in our view, Nigeria
should borrow a leaf from. For instance, the 1994 Act was recently
amended by the South African Parliament to breathe more life into the
near perfect conduct expected of their serving judicial officers. The
amendment was necessitated by the need to establish the Judicial
Conduct Committee to receive and deal with complaints about judges;
to provide for a Code of Judicial Conduct which serves as the prevailing
standard of judicial conduct which judges must adhere to. It also
provides for the establishment and maintenance of a register of judges‟
registrable interests; the procedures for dealing with complaints about
judges; the establishment of Judicial Conduct Tribunals to inquire into
and report on allegations of incapacity, gross incompetence or gross
misconduct against judges; and for matters connected therewith. For the
foregoing long title of the amended statute, it is innovative of Nigeria,
Canada and Botswana can boldly adopt the South African pattern.
7.5 Botswana as a Case Study

The Council of the Law Society of Botswana,27 as part of its mandate,
set up a committee to look into the appointment of judges in Botswana.
In particular, the committee was to look at the process of appointment of
judges in the light of the provisions of the Constitution of Botswana.
Secondly, section 59 of the Legal Practitioner‟s Act28 provides that it is
one of the functions of the Council to assist the Government in the
administration of the law. Thirdly, and most importantly, the Law
Society, as a statutory body set up, amongst others to ensure high
standards in the legal profession and the public good, plays a crucial
role in shaping, nurturing and contributing to the public debate on legal
issues in the country. In handling issues such as appointment of persons
27
Also herein after referred to as “the Council”
28
The LPA.
to the bench, the law society cannot be a silent or a part-time player but
must be involved as one of the main players.
In terms of appointment of judges, the President of Botswana
appoints the Chief Justice and the Judge President of the Court of
Appeal. Section 96(1) of the Constitution provides that “the Chief
Justice shall be appointed by the President” and section 100(1) provides
that “the President of the Court of Appeal shall, unless the office is held
ex-officio by the Chief Justice, be appointed by the President”
The Botswana Constitution neither contemplates nor provides for
the intervention of the Judicial Service Commission. The Chief Justice
and the Judge President of the Court of Appeal are appointed by the
President in his absolute discretion. The Constitution does not provide
for any process of consultation and in that light the President can act
alone when appointing the Chief Justice and the Judge President of the
Court of Appeal. The process therefore enjoys the tendency of its being
shrouded in some level of secrecy. This is contrary to the practice in
other jurisdictions such as in Nigeria, South Africa and Canada where
the appointments are not the sole preserve of the President.
7.5.1 Appointment of Judges of the High Court and the Court of

Appeal in Botswana
The Botswana Constitution makes provision for the requisite
qualifications for the appointment of Judges of the High Court and the
Court of Appeal. The Constitution provides that these appointments are
also to be made by the President, but this time acting in conjunction
with the advice of the Judicial Service Commission by virtue of section
96 and 100 of the Botswana Constitution. Aside from the provision of
the criteria and qualifications for the appointment of judges of the High
Court and Court of Appeal, the Constitution does not make any further
provision for the manner in which judges will be appointed. For
example, there is no explanation as to what „in accordance with the
Constitution‟ entails resulting in varying interpretations of the phrase by
various authors. The criterion for the appointment of both set of Judges
is however without any ambiguity. Sections 96(3) and 100 (3) of the
Constitution provides for the qualifications for appointment to be a
Judge of the High Court and Court of Appeal respectively. The criterion
for appointment of both set of judges is almost the same. The totality of
the provisions of the Botswana Constitution demands that only fit and
proper persons can be appointed to the High Court and Court of Appeal
benches.
7.5.1 The Role of the Botswana Judicial Service Commission

Central to the appointment of both judges of the High Court and the
Court of Appeal is the function of the Botswana Judicial Service
Commission in the process of appointing judges. Section 103 of the
Constitution provides for the composition and procedure of the Judicial
Service Commission. The composition of the Judicial Service
Commission comprise of the Chief Justice,29 the President of the Court
of Appeal,30 the Attorney-General, the Chairman of the Public Service
Commission, a member of the law society nominated by the law
society; and a person of integrity and experience not being a legal
practitioner appointed by the President. This composition has its own
inherent challenges.
The Judicial Service Commission as presently constituted is
weighed heavily in favour of the Executive. Five out of six members of
the Judicial Service Commission are appointed by the President, the
Botswana‟s JSC pales in comparison with the South African Judicial
Service Commission on the level of participation of stakeholders in the
justice sector and representativeness. The South African Judicial Service
Commission is made up of, among others, the Chief Justice,31 the
President of the Supreme Court of Appeal, the Cabinet member
responsible for the administration of justice, advocates, attorneys, one
teacher of law designated by teachers of law at South African
universities, six persons designated by the National Assembly, four
permanent delegates to the National Council of Provinces designated
together by the Council with a supporting vote of at least six provinces,
four persons designated by the President as head of the national
executive, after consulting the leaders of all the parties in the National
Assembly. The composition of the Nigerian National Judicial Council
seems to cure the defects of the Botswana jurisdiction. The South
29
Who acts as the Chairman of the JSC.
30
Not being the Chief Justice or the most Senior Justice of the Court of Appeal
31
Who chairs the Commission.
African composition seems more political in outlook. In terms of

composition, we humbly recommend the Nigerian model.32
By way of further deductions, the composition of the South
African Judicial Service Commission is representative in nature and is
not under the exclusive control of the executive arm of Government
though not without political party nominations and interference at a
minimal level. The pattern used by the South African Judicial Service
Commission in appointing Judges is credited with having „a fair degree
of openness.‟ The Commission identifies a list of meritorious candidates
by advertising judicial vacancies and interviewing the short-listed
candidates in public, as if in open court.
The Constitution provides that the Judicial Service Commission
should not be subject to the direction or control of any other person or
authority in the exercise of its functions.33 The composition of the
Judicial Service Commission reflects the hand of the executive in the
appointment process and casts doubt on the credibility of the Judicial
Service Commission to act independently of the executive. May we
humbly submit that the Botswana system of appointment is unhealthy
with the universal principles of judicial independence? It is noteworthy
to mention that the Constitution provides that in exercising its functions,
the Judicial Service Commission is not subject to the control of any
other party under section 103 (4) of the Constitution. The steps leading
to the composition of the Judicial Service Commission negates the
intent of the Constitutional provision aforestated.
Moreover, section 103(5) of the Constitution provides that „the
Commission may regulate its own procedure‟ and there is no other
legislation that regulates the activities of the Judicial Service
Commission. It then means, that the executive arm of Government,
through the composition of the Judicial Service Commission, is likely to
have total or wide control over the proceedings of the Judicial Service
Commission, its agenda as well as the particular issues it will discuss.
Further, the proceedings of the Judicial Service Commission are not
accessible to the public, thus putting in jeopardy the transparency of the
processes of the Judicial Service Commission.
32
Section 153 of the 1999 Constitution.
33
Section 103 (4) of the Botswana Constitution.
8. The Way Forward

The inability to easily remove judges is a main pillar of judicial
independence. Judges may be removed only in the most exceptional
cases involving serious misconduct or incapacity. And in such
exceptional circumstances, any removal process must conform with
international standards of due process and fair trial, including the right
to an independent review of the decision. Members of the judiciary must
never be subject to removal on the basis of judicial decisions rendered
in the legitimate exercise of their professional functions.
The executive and the legislature have a duty to ensure that the
spirit and letters of the 1999 Constitution as amended is strictly adhered
to by prompt release of funds to the National Judicial Council for
onward disbursement to the appropriate courts. On no account should
judges‟ salaries and allowances be delayed due to the sensitive nature of
their judicial functions. When this is done, financial autonomy which
remains a key panacea to independence of the judiciary will give hope
to the common man.
The South African Complaint process against a judge is more
detailed and legislated in the Judicial Service Commission Act of 1994.
It enhances transparency in the trial of judges for alleged judicial
misconduct.
Dispute between the National Judicial Council and parties should
be assigned by the second most senior Justice of the Supreme Court or
representatives selected from the Court of Appeal. This is to further
strengthen the entire judicial system and restore confidence in the
Judiciary. This is because appeals lie to the courts in which the heads of
these aforementioned courts preside and assign cases between parties
being the chief administrative officers of their various courts.
The Botswana Judicial Service Commission has a lot to learn
from Nigeria in terms of the composition of their Commission,
appointment of judicial officers and possibly discipline of her judicial
officers.
9. Conclusion
The Nigerian polity will never be better without a virile, functional and
independent judiciary. There can never be an independent judiciary
without incorruptible judges. Where a judge chooses to be corruptible,

the poser remains, who will judge the judge? The answer is not
farfetched. It should be the National Judicial Council. It is our view that
the composition of the Council in Nigeria is acceptable. The Council
must however rise up to its duties and exercise its powers by judging the
judge for a just society. Without gainsaying, the National Judicial
Council appears in our view to be the soul of Nigeria‟s budding
democracy. The other arms of government also have key roles to play in
terms of acting in good faith whenever statute requires their duties in
either appointment or sanction of a judicial officer.

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O. B.

Judging the Judge: Lessons from Nigeria and Selected Jurisdictions

answer to this question is in the negative, what must be done to restore

2. The Nigerian Judiciary at a Glance

3. Recent Trends of the National Judicial Council

linked and another partially, to political matters in their courts.5The

investigated Justice Okwuchukwu Opene and Adeniji, respectively, and

4. The National Judicial Council

The National Judicial Council shall comprise the following

It is pertinent to note that by virtue of section 154 of the 1999

In furtherance of the above, item 21 of the third Schedule,

22. The Secretary of the Council shall be appointed by the National

In reconciling the provisions of section 158 (1) and item 21 of

3. Federal Judicial Service Commission

The Commission‟s advisory powers encompasses advising the

In addition, the Commission also has power to recommend to the

5. Procedure for Appointment of Judicial Officers in Nigeria

To my mind, the short listing of judicial officers by

6. Procedure for Discipline of Judicial Officers in Nigeria

Also, there ought to be a time frame within which complaints are

office of the courthouse in question. This is akin to the practice in

judge‟s province, with a request for comments. The complainant may

Council will advise the person who complained of its decision in

7.2 The United States of America

7.3 The United Kingdom:

7.4 The South African Case Study

7.4.1 Appointment Procedure and Tenure of Judges in South Africa

Parliament, of the government or of political parties. To select Judges,

relevant to the application of this Constitution and the law

In the case of Constitutional Court Judges, there is a complex

7.4.2 Removal of Judges in South Africa

i. allegations that any Judge is suffering from an incapacity;

Any of the above grounds could be investigated and available

In the spirit and letters of the Constitution and the Judicial

(f) Subject to subsection (9), attendance of a specific training course.

In essence, South Africa operates an open investigative process

7.5 Botswana as a Case Study

7.5.1 Appointment of Judges of the High Court and the Court of

7.5.1 The Role of the Botswana Judicial Service Commission

African composition seems more political in outlook. In terms of

8. The Way Forward

without incorruptible judges. Where a judge chooses to be corruptible,

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