Source: Leadership
By July 15, this year, the current Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher would have attained the constitutionally mandatory retirement age of 70 years. AHURAKA ISAH writes that in line with the law of the land, he will retire while a successor is expected to be sworn-in same day.
The qualification to be appointed to the office of the Chief Justice of Nigeria(CJN) as prescribed in section231 (3) of the 1999 constitution is 15 years of practice as a legal practitioner. But the tradition in Nigeria has always been that the next most senior justice in the apex court is automatically appointed to that position based on the recommendation of National Judicial Council (NJC) headed by the CJN.
Going by this standing tradition, Justice Mariam Aloma-Muktar who is the next in seniority to the Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher that would be at the retirement lounge in a matter of five months from now, is expected to be confirmed for the totem judicial height.
Muktar, a Kano-born first northern female lawyer was called to the Nigerian Bar in 1967. By September 24, 1987, she became the first female to be promoted to the Court of Appeal. And when the Senate confirmed her appointment to the apex court on May 10, 2005, she was as well, the first female justice of the Supreme Court of Nigeria.
So the thinking in many quarters is that feminists may soon celebrate the country's first female Chief Justice barring twist of fate.
But analysts fear that President Goodluck Jonathan and the current CJN may stop the woman. She is reportedly considered too independent-minded, tough and smart to manipulate.
To technically remove Muktar from contention, the Nigerian authorities allegedly influenced her appointment as Chief Justice of Gambia. She quietly turned the offer down without giving reasons to avoid controversy and crisis of confidence reminiscent of theKatsina-Aluvs Salami saga.
Besides, JusticeMusdapher had on November 10, 2011 bared his thoughts on the expected reforms in the judiciary, saying that justices of the Supreme Court should hold their appointments for a lifetime, as obtained in the United States of America (USA).If his proposal sails through, he would remain a CJN as long as he lives.
Musdapher who said this while delivering the 2011 Nigerian Institute of Advanced Legal Studies Lecture, entitled The Nigeria Judiciary: Towards Reform of the Bastion of Constitutional Democracy, added that although his suggestion did not provide an alternative, but noted that he was transmitting the ideas to the 28-member Judicial Reform Committee, set up to proffer ways of doing things differently in the justice sector.
He had hinted at several occasions and particularly in the address he delivered at the Nigerian Law School in Bwari on October 5, 2011 to pursue a constitutional amendment for judicial reform.
"Experienced and reputable resource persons have been contacted to provide support to the constitutional amendment process which we believe is crucial to further institutionalising the independence of the judiciary".
It is expected according to a source at the apex court that a constitutional amendment would be sought for change in retirement age for justices of the apex court from 70 years to 75 years. If that is achieved, it may be a herculean task for Muktar to become the first female CJN by July 15.
But a human rights activist and Lagos based lawyer, Mr Femi Falana who spoke to LEADERSHIP on this matter recently said a constitutional amendment could not be accomplished between now and July 15 under any guise.
Another senior lawyer, Dr BabatundeAjibade (SAN) told LEADERSHIP in an interview that it would be counter-productive to shift the retirement age of the CJN from 70 to 75 years.
"I don't support the extension of retirement age to 75years. We heard stories of justices of Supreme Court who have died in the office on account of fatigue. We complained that there are so many backlogs of undecided cases, and part of the reasons is that these justices are tired because of old age. They should rather allow the young and more dynamic and energetic people who have enough capacity to do the job to come in rather than trying to stay longer than necessary", Ajibade said.
The 29-member Stakeholders Judicial Reform Committee headed by ex-CJN, Justice MuhammedLawal Uwais has turned in its report to the CJN recently.
The committee had among other things, recommended that the appointment of the CJN be considered from outside the rank of Justices of Supreme Court as well.
If this report that is already before President Goodluck Jonathan for final approval sees the light of the day, Muktar's chances may become highly slim.
A lawyer who craved anonymity puts the likely predicament of Muktar more succinctly: "The fears that Muktar may be difficult to bend on courts and other forms of judiciary matters might have informed the plots to stop her from becoming the Chief Justice of Nigeria."
It will be recalled that while Justices Idris Legbo Kutigi, Aloysius Iyorger Kastina-Alu, Niki Tobi and Dahiru Musdapher dismissed the Buhari appeal and upheld the election of Yar'Adua and Jonathan in 2007, Justices George Oguntade, Mariam Alloma-Muktar and Waltter Onnoghen who delivered dissenting judgments held that there were substantial non-compliances with the Electoral Act 2006 which vitiated the election.
Tobi who read the lead judgment said "In my view, the most important complaint in an election petition is the disenfranchisement of eligible voters who reported within the statutory time to cast their votes but could not for reasons of violation of the Electoral Act,"
Oguntade who delivered the minority judgment differed with Tobi and his co-travellers, and insisted alongside his co-dissenters that failure by the electoral commission to use serialized ballot papers bound in a booklet meant that the election was not conducted substantially in tandem with the Electoral Act.