Judges and Political Mating Games – By Chidi Anselm Odinkalu
“In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.”
Alexander Hamilton, Federalist, No. 79, cited in O’Donoghue v. US, Id., 531 at 516
Nearly one year before he eventually prevailed in the legal contest over the destination of the governorship election which occurred in Ekiti State in 2007, on 20 November 2009, Kayode Fayemi addressed the 52nd Annual Conference of the African Studies Association in New Orleans, in the state of Louisiana, United States of America, to offer some reflections on ten years of the return to elective government in Nigeria.
Dr. Fayemi’s address to the conference dwelt significantly on what he called useful “analytical categories in explaining why elections go the way they do in Nigeria with unpopular candidates ‘emerging’ as ‘winners’ in questionable elections.” He identified and named several gods that needed to be appeased by those with any hope of having their political ambitions blessed with success. His list included the Independent National Electoral Commission (INEC); security agencies (especially the police and the army); political “thugs and bandits”; and what he called the “money god”. The list additionally included “the judiciary” which Dr. Fayemi located rather tellingly in between the thugs and bandits on the one hand and the money god on the other. The most successful politicians, he suggested, were those who found ways to achieve intimacy with these gods.
Borrowing a leaf from Dr. Fayemi’s manual of electoral success, senior politicians in Nigeria and their counterparts in the judiciary appear to have been engaged in a prolonged mating game since before the general elections of 2023. As with many mating games that end up in intimacy, the results of the consummation are now showing themselves in unconcealed protuberances.
In his second week as president, the current incumbent indicated assent to a constitutional amendment ending the dichotomy between the retirement age of judges of the high courts around the country and that of Justices of the Court of Appeal and of the Supreme Court. Until then high court judges retired at 65 while their counterparts in the Court of Appeal and the Supreme Court retired five years later at 70.
This new law granted all judges at the level of the high court or its equivalent a career extension of five years. For Chief Judges at the state level, they all received an increase of five years in office, meaning an extension of the good times. However, judges with ambitions or expectations of succeeding into leadership at the state level in the judiciary saw this as career stultification. The politicians who made this possible gained good friends in high judicial office.
At the beginning of April, 2024, the National Assembly passed the Judicial Office Holders (Salaries and Allowances, etc) Bill. It took all of three weeks, having only been transmitted by the presidency on 19 March. The bill updates judicial salaries, last reviewed in 2008. In particular, it will become effective from 1 January 2024, which “implies that if signed into law, the new rates of emoluments for judicial officers will be deemed to have become payable from January 1, in which case arrears will have to be paid.”
The bill guarantees a basic annual salary of N36.84 million for high court judges and N51.16 million for the Chief Justice of Nigeria, achieving a notional increase of over 800% on current judicial remuneration. That is still way off the N84 million for high court judges and N120 million for the Chief Justice computed by Osatohanmwen Obaseki-Osagie, a judge of the National Industrial Court of Nigeria, in a self-help judgment issued on 4 May 2022.
As a negotiating gambit, however, the judges may take the view that the judgment has served its purpose. That is more than can be said for other workers in Nigeria in respect of whom negotiations with the federal government over the Minimum Wage broke down during the past week. Reflecting a peculiar legacy from military rule, Labour in Nigeria is federalized as an item under the Exclusive Legislative List although cost of living is location-sensitive. This is a story for another day.
When the Supreme Court of the United States spoke in 1933 about “the undiminishable character of the compensation of the judges”, they could not have known that the Great Depression had not yet hit the mid-point of its ultimate duration nor did they reckon with the laws of macro-economics. It hardly helps the interests of the administration of justice if judges’ wages are undiminishable while those of their staff are non-existent. Far from guaranteeing more efficient delivery of justice, therefore, Nigeria’s new judicial salaries may just achieve the opposite in the absence of a quick and equitable resolution of the negotiations concerning wages for workers generally, including judiciary staff.
Topping off a spectacular month of rich helpings from the political goodie-bag for Nigeria’s judiciary, the President during the week approved a whopping N37.2 billion for the construction of a new building for the Abuja Division of the Court of Appeal. Contrary to the impression suggested by this decision, the court is not like another internally displaced person (IDP) in Abuja. In truth, it has one of the finer judicial edifices in the Federal Capital located also in the Three Arms Zone, just a shouting distance from the Presidency and the Supreme Court. This is why some people believe that the idea of an “Abuja Division” building is an excuse for executive generosity to the Court of Appeal hierarchy.
Also working its way through the National Assembly at this time, the House of Representatives has passed a constitutional amendment bill to increase the number of Justices of Appeal by 67% from the current 90 to 150. It seeks to “increase the number of justices of the Court and provide for the appointment of a minimum of 6 justices in every Judicial division of the Court.” If it becomes law, this will make the President of the Court of Appeal the unquestioned master or mistress of the judicial dark arts in Nigeria.
All this has happened in the week in which the National Judicial Council met to allocate new judicial appointments. The winners included the current Chief Judge of the High Court of the Federal Capital Territory (FCT); one of his predecessors; and a recent Chief Justice of Nigeria, each of whom had one of their daughters formally recommended for appointment to the bench of the FCT High Court.
Another evident winner is the current Chief Justice himself who got his wish to have his daughter-in-law appointed a judge of the FCT High Court in what one source described as granting him his “last wish as CJN.”
One of the “new” appointees is Buetnaan Mandy Basi, the daughter of the current president of the Court of Appeal. The same NJC had appointed her a judge of the High Court of Plateau State in 2021 where she is currently serving as a judge. How many times can one person be appointed afresh to the same level of the Nigerian judiciary?
Another winner was Nyesom Wike, (the current Minister of the same FCT much admired by the CJN), whose wife, Eberechi, was formally recommended for elevation to the Court of Appeal and whose sister-in-law was also recommended for appointment to the FCT High Court.
The one clear loser was Yahaya Bello, the fugitive immediate past governor of Kogi State whose wish to have his wife, Amina, relocated from his bedroom to the courtroom as a judge of the High Court of Kogi State the NJC turned down. It is not that the Council suddenly suffered a Damascene conversion to rectitude in judicial appointments.
Indeed, senior judicial figures privately attest to the enormous “generosity” of Yahaya Bello. They found the nomination of his wife on this occasion too much of a heavy lift, however, because he is out of favour with the ruling hierarchy. Far from controverting it, therefore, the NJC’s decision to decline the appointment of Yahaya Bello’s wife was the ultimate confirmation of Kayode Fayemi’s “analytical categories” from nearly 15 years ago.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
