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26.12.2011 Feature Article

Nigeria and the ICC: The Dawn of a new era?

Nigeria and the ICC: The Dawn of a new era?
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Background and Introduction

The last couple of weeks have been remarkable for Nigeria within the sphere of International law. In the midst of the doom and gloom that is often the news about Nigeria, two recent appointments at the International Criminal Court (ICC) has resulted in Nigeria in some way punching above its weight in the realm of International law. Indeed it is evidence of the excellence of the legal education in Nigeria that two distinguished legal practitioners who did the academic and vocational training of their legal education at Nigeria Universities and the Nigerian Law School Lagos and were called to the Nigerian Bar have been elected to two very important positions at the ICC. Mrs Fatou Bensouda of the Gambia, Deputy Prosecutor of the ICC a position she has held since 8 December 2004 was unanimously elected the Prosecutor of the ICC on 12 December 2011 to succeed the current Prosecutor Luis Moreno-Ocampo of Argentina who finishes his term in June 2012. Mrs Bensouda studied at the University of Ife (now Obafemi Awolowo University) and the Nigerian Law School, Lagos. Similarly Dr Chile Eboe-Osuji of Nigeria, Legal Advisor United Nations High Commissioner for Human Rights, a position he has held since 2010 and was previously Head of Chambers for the Prosecution at the International Criminal Tribunal for Rwanda was after a somewhat tortious election at the 15th round of the election of judges of the ICC was elected on 16 December 2011 as a Judge of the ICC. Dr Eboe-Osuji is a very experienced International Criminal Prosecutor and widely published academic. Dr Eboe-Osuji studied at the University of Calabar and the Nigerian Law School, Lagos and called to the Nigerian Bar in 1986. I have reiterated the Nigerian legal education obtained by Mrs Bensouda and Dr Eboe-Osuji for obvious reasons. Hopefully their appointments would have the desired combined effect of raising the current declining standards of legal education in Nigeria and the applicability of International Criminal law within Nigerian domestic law. I had not set out to write an article about the declining standards of legal education in Nigeria but on a practical level the applicability and implementation of International Criminal law within Nigerian domestic law is my raison d'etre for this discourse. These appointments could in effect be the spur that drives in one respect developments in International Criminal Law in Nigeria as well the system of appointing judges in Nigeria.

Dr Eboe-Osuji appointment follows the illustrious career and path laid by the eminent Nigerian jurist and scholar, the late Dr Taslim Olawale Elias formerly Attorney General of Nigeria, Chief Justice of Nigeria, Justice and later President of the International Court of Justice and who was the doyen of International law in Africa. Indeed the appointments of Mrs Bensouda and Dr Eboe-Osuji fulfils the legacy and vision of Dr Taslim Olawale Elias who said that, 'The contribution which the third world in general and Africa in particular is making to contemporary international law will in time increase both in quality especially within the framework of the United Nations.' In setting his vision of international law Dr Elias further opined that, 'Universality rather than limited application must now be the catchword in the expanding frontiers of the international law under the United Nations Charter' (see James Thuo Gathii, A Critical Appraisal of the International legal tradition of Taslim Olawale Elias in Leiden Journal of International Law, 21 (2008), pages 317-349 quoting two of Dr Elias seminal works on International law, Africa and the Development of International Law and The United Nations Charter and the World Court).

International law in Nigerian Domestic law Nigeria's role as regional superpower with Africa the centre piece of its foreign policy owes very much to belief and observance of the provisions of Article VII of the United Nations (UN) Charter Action with respect to the Peace, Breaches of the peace, and acts of Aggression which was the reason Nigeria led the Economic Community of West African States (ECOWAS) Armed Monitoring Group Nigeria (ECOMOG) the regional African group that Nigeria belongs to in intervening Liberia in 1990, Sierra Leone in 1997, Guinea-Bissau in 1999 and the Guinea-Liberia border in 2001. Nigeria is also a major contributory nation funding the Special Court for Sierra Leone since its inception in 2000. Furthermore recently this year, Nigeria led African countries in endorsing and supporting United Nations intervention in Côte d'Ivoire and Libya pursuant to its powers under Article VII of the UN Charter with the enforcement mechanism and measures set out in UN Security Council Resolutions (UNSC) 1973 and 2011 respectively.

Nigeria's endorsement of UN enforcement mechanism, interventionist actions and international law is nuanced by the fact that Nigeria though a signatory state to the Rome Statute setting up the ICC since 1 June 2000 and ratified the treaty on 27 September 2001 has not signed the ICC (Ratification and Jurisdiction) Bill 2006 into domestic Nigerian law. The ICC (Ratification and Jurisdiction) Bill 2006 was passed by the House of Representatives and Senate but to date since May 2007 has not been given presidential assent and signed into law. The laborious slow process of law making in Nigeria once again rearing its ugly head!

Traditionally International law is not seen by legal scholars in Nigeria as constituting a distinct part or classification as a source of Nigerian law. In my view the influence of International law is a position that has often been overlooked and understated in Nigeria. The branches of International law which have formed the basis of the influence of International law on Nigerian law particularly criminal law is specifically Public International law jus gentium, the law of Nations governing the interrelationship of states and their rights and duties in respect of each other. The body of law constituting public international law includes treaties, international instruments and declarations, formation and recognition of states, international crimes and the mechanisms of judicial adjudication of disputes. The branches of International law that is Public International law particularly relevant to Nigerian law are International Human Rights law, International Humanitarian law and lately International Criminal law. In understanding how these branches of International law are embedded in Nigerian law it is necessary to explain the situations in which they are applicable. International Human Rights law provides non-discriminatory treatment to everyone at all times, whether in peace time or in times of war or other upheaval. International Humanitarian law is,

aimed at ensuring a minimum of protection to victims of armed conflicts, such as the sick, injured, shipwrecked and prisoners of war, by outlawing excessive human suffering and material destruction in the light of military necessity (see Human Rights in the Administration of Justice: A Manual on Human Right for Judges, Prosecutors and Lawyers (United Nations New York and Geneva, 2003), page 12).

International Criminal law is defined as a body of international rules designed to proscribe certain categories some of which are described earlier including war crimes, crimes against humanity, genocide, torture, aggression and terrorism and to make those persons who engage in such conduct criminally liable (see Antonio, Cassese, International Criminal Law Second Edition (Oxford University Press, Oxford 2008), page 3).

On a day to day practical basis in Nigerian Criminal law the impact of International Human Rights law is significantly more profound. This is because it is derived from the executing effect of the treaties and instruments which form International Human Rights law which would examined in detail. Furthermore International Humanitarian law and indeed International Criminal law by their very nature do not apply at all times because they apply during situations of internal or international armed conflicts or the aftermath and consequence of such conflicts though given the prevailing situation in parts of Nigeria where there is a violent conflicts the framework of International Humanitarian law and International Criminal law are applicable. More so the ICC Office of the Prosecutor in November 2010 initiated preliminary investigations in Nigeria in respect of the killings in Jos and have now expanded their investigation to include alleged crimes of sexual violence and abductions in the Niger Delta (see ICC The Office of the Prosecutor Report on Preliminary Examination activities 13 December 2011, pages 12 – 13).

At odds with Nigeria's position international law is the Bilateral Immunity Agreement (BIA) of 30 June 2003 which entered into force on 6 October 2003 signed on behalf of Nigeria by Igantius Akaayar Ayua then Solicitor General of Nigeria and on behalf of United States of America Howard F. Jester. On 1 July 2003, then President Bush issued an American Service members' Protection Act waiver until January 1, 2004,

Presidential Determination No. 2003-27 Memorandum For The Secretary Of State Subject: Waiving Prohibition on United States Military Assistance to Parties to the Rome Statute Establishing the International Criminal Court Consistent with the authority vested in me by section 2007 of the American Service members Protection Act of 2002, title II of Public Law 107-206 (22 U.S.C. 7421 et seq.),

I hereby determine that: (1) Gabon, the Gambia, Mongolia, Senegal, Sierra Leone, and Tajikistan have each entered into an agreement with the United States pursuant to Article 98 of the Rome Statute preventing the International Criminal Court from proceeding against U.S. personnel present in such countries and waive the prohibition of section 2007(a) of the American Service members Protection Act with respect to these countries for as long as such agreement remains in force;

… (3) it is important to the national interest of the United States to waive, until January 1, 2004, the prohibition of section 2007(a) with respect to Albania, Bolivia, Bosnia-Herzegovina, Botswana, Former Yugoslav Republic of Macedonia, Mauritius, Nigeria, Panama, and Uganda, and waive that prohibition with respect to these countries until that date. You are authorized and directed to report this determination to the Congress, and to arrange for its publication in the Federal Register”.

This Nigerian waiver was then made permanent and indefinitely through the provisions of the BIA made on 1 November 2003. However the legality of the BIA is questionable given its reliance on the provisions of Article 98 of the Rome Statute. The provisions of which state inter-alia,

Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

It is indeed arguable whether the provisions of Article 98 envisaged the cooperation set out in the BIA Nigeria entered with the United States. Lee Stone and Max du Plessis state that,

It has been argued that the BIA is inconsistent with the object and purpose of the ICC Statute for a State Party to enter into or to apply a bilateral non-surrender agreement if the purpose or effect of doing so would be to provide impunity to a person credibly suspected of having committed a crime within the jurisdiction of the ICC. According to Nsereko, these agreements not only undermine the integrity of the ICC, but also violate the principle of equality before the law and contravene the obligations undertaken by State Parties to the Rome Statute (see The Implementation of the Rome Statute of the International Criminal Court (ICC) in African Countries compiled by Lee Stone and Max du Plessis, page 8).

Furthermore the BIA is not consistent with Nigeria's obligations under the provisions of the Rome Statute having accepted the jurisdiction court being a signatory country and indeed contravenes the provisions of Nigeria's Constitution (CFRN 1999) as we shall see later on. Notwithstanding whatever concerns and issues for United States in the entering the BIA with Nigeria, stricto sensu the BIA is not compatible with international law. The issues in respect of the BIA and the pending assent of the ICC (Ratification and Jurisdiction) Bill 2006 shows why this is not the case. Hence the positive reading of the international law rules of jus cogens and Obligato Erga Omnes under Nigerian law can be found in Section 19 (d) Foreign policy objectives CFRN 1999 which states that, “respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication.” This stance though is somewhat at odds with Nigeria's common law classic dualist position obtainable in common law countries in respect of the relationship between international and domestic law. In particular what is the legality of the Rome Statute in Nigeria vis-à-vis the pending ICC (Ratification and Jurisdiction) Bill 2006? Does Nigeria position as a dualist state reinforced in Section 12 (1) Implementation of treaties CFRN 1999 which states that, “No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly” mean that the Rome Statute is not in force given that it has not been enacted into law by the National Assembly (the House of Representatives and the Senate)?

However Article 53 Treaties conflicting with a peremptory norm of general international law (“jus cogens”) of the Vienna Convention on the Law of Treaties 1969 states that,

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Thus the Rome Statute being a statute of peremptory norm of general international law as defined in Article 5 defining Crimes within the Jurisdiction of the Court as the Crime of genocide, Crimes against humanity, War crimes and the Crime of aggression though subject to Article 5.2 a definition of the crime of aggression is yet to be made in accordance with the procedure of the amendment of the provisions of statute by signatory states as envisaged in Articles 121 and 123 permits no derogation. Articles 5 – 8 of the Rome Statute specifically define respectively the elements of Genocide, Crimes against humanity and War crimes. These crimes cannot be derogated by Nigeria.

Furthermore Article 26 of the Vienna Convention principle of “Pacta sunt servanda” states that, 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith.' Hence this places a positive obligation on Nigeria to adhere to the provisions of the Rome Statute since Nigeria had signed and ratified the treaty. In addition the principle of jus cogens (coercive law) rule of International law, principles of International law including the crimes defined in the Rome Statute set out above which are deemed as fundamental are generally binding on all states without any exceptions. Complimentary to the jus cogens rule is the rule of erga omnes obligations or obligation erga omnes (towards all in international law) that obligations that have to be fulfilled because all states have an interest if its subject matter is of importance to the international community as a whole. Thus Nigeria has a positive duty under international law to ensure it adheres to its obligations under the Rome Statute.

However it is my view that Nigeria's obligations under multilateral International treaties invoking the rules of jus cogens and Obligato Erga Omnes are binding and prevail notwithstanding the provisions of Section 12 (1) of Nigeria's constitution. More so it is respectfully submitted that the provisions of Section 12 (1) though not applicable to the rules of jus cogens and Obligato Erga Omnes as Section 12 (1) of Nigeria's constitution refers to bilateral treaties ('No treaty between the Federation and any other country'), that is a treaty between Nigeria and another country and not a multilateral treaty under International Law including treaties, conventions and protocols of the UN, African Union (AU), ECOWAS and the Commonwealth which Nigeria has signed and ratified in accordance with the rules of those multilateral organisations. In fact the provisions of Section 12 (1) of Nigeria's constitution calls into question the legality of the BIA Nigeria has made with the Unites States because the BIA in effect is operative as a treaty with the United States its provisions are not self-executing if it has not been passed into law by the National Assembly in Nigeria it is void within the context of Nigerian law given the provisions of Section 1 (3) of Nigeria's Constitution which states, 'If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.'

Under international law the classic dualist position posits that though enforceable international law is only applicable as a rule of domestic law interpreted by judges after it has been incorporated into national law by the legislative arm, in Nigeria's case the National Assembly. On the other hand the contrasting classic monist position posits that international law is directly incorporated into national domestic law upon the signature and ratification of the state. Hence under the monist position domestic and international law are regarded as one legal system which is contrary to the dualist position which regards domestic and international law as two legal systems. However the emerging trend is that there is a convergence of the two positions because of developments in international law occasioned by the rules of jus cogens, Obligato Erga Omnes as I explained earlier hence the dualist tradition of Nigerian law does not negate the legality and applicability of the Rome Statute notwithstanding the pending assent of the ICC (Ratification and Jurisdiction) Bill 2006. Furthermore any potential conflict with Nigerian law and the Rome Statute including Section 308 Restrictions on legal proceeding of the Nigerian Constitution granting immunity from criminal and civil proceedings to the President, Vice President, Governor and Deputy Governor shall be resolved in favour of the Rome Statute. The principles of international law override the provisions of Section 308 of the Nigeria Constitution. The provisions of the Rome Statute incorporating international law principles of jus cogens and Obligato Erga Omnes are self-executing in Nigerian law and as such its provisions prevail where it conflicts with Nigerian law. Whilst the eventual presidential assent of the ICC (Ratification and Jurisdiction) Bill 2006 would provide clarity and certainty in the applicability, interpretation, implementation and enforcement of the Rome Statute in domestic Nigerian law this does not undermine the positive reading of the Rome Statute under Nigerian law. It is the clarity and certainty applicability, interpretation, implementation and enforcement of the Rome Statute that has made other common law dualist tradition countries enact into their domestic law the Rome Statute such as Canada's Crimes Against Humanity and War Crimes Act 2000, the United Kingdom's International Criminal Court Act 2001 and Australia's International Criminal Court Act 2002. However crimes defined in the Rome Statute are stricto sensu per se crimes under Nigerian law taking into cognisance the stated principles of international law.

The complementarity principle of the ICC envisages domestic courts having jurisdiction for crimes defined under the Rome Statute. The absence of a law in Nigeria defining crimes under the jurisdiction of the ICC provided for in the Rome Statute does not preclude the enforcement of the Rome Statute in Nigeria. Article 1 of the Rome Statute provides that,

“An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”

Furthermore paragraph 10 of the Preamble of the Rome Statute provides that “the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.”

The ICC Prosecutor practice of complementarity, 'involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office' (See ICC The Office of the Prosecutor Report on Preliminary Examination activities 13 December 2011, page3). This is relevant because the ICC in line with the provisions of the Rome Statute would only act if domestic jurisdictions are unable and unwilling to retain the primary responsibility of investigating and prosecuting crimes within their jurisdiction. The provisions of Article 17 Issues of admissibility of the Rome Statute give effect to instances of inability and unwillingness of domestic jurisdictions to investigate and prosecute crimes where the ICC then assumes jurisdiction. Article 17 states inter-alia,

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Thus in balancing the jurisdiction of domestic courts vis-à-vis that of the ICC the applicability of the complementarity principles ensures that national administration of justice institutions including law enforcement agencies, police, the courts and prosecution cannot solely on their own decide or fail to act in investigating and prosecuting crimes under the Rome Statute. This principle banishes the impunity of the past used to protect perpetrators against the crimes inflicted on victims. Consequently the principle of complementarity as envisaged in the Rome Statute, the practice and procedure of the ICC and the ICC's Office of Prosecutor envisages that domestic national jurisdictions even where there is no specific law on the ICC as in the case of Nigeria implement, apply and practice international criminal justice as stipulated in the provisions of the Rome Statute.

Appointment of Judges in Nigeria Recently within the current civilian regime of Nigeria's so called fourth republic (the present civilian government since 1999) the appointments of judges has in certain cases been very controversial. The irony of the current system of appointments of judges in Nigeria is so arcane and labyrinth that a candidate as eminently and well qualified as Dr Eboe-Osuji to be elected a Judge of the ICC is highly unlikely to be appointed a Judge given that his vast knowledge, experience and practice of the law has not been in Nigeria within the last five years. By convention as it is the practice in the appointment of Judges in Nigeria it is quite unheard and I hardly know of a candidate that been appointed as Judge in Nigerian Courts without having had current practise of 5 years appearing in Nigerian courts. A convention which at stroke disqualifies brilliant legal minds like Dr Eboe-Osuji and others whose years of practise in advocacy, legal practise and academia has been outside the shores of Nigeria. This is a system which is unfair and is a huge disadvantage to otherwise eminently qualified Nigeria legal practitioners not only those outside Nigeria but those in Nigeria who are not Advocates that appear and litigate in Court. There is also no constitutional requirement for this rule as I shall examine in detail further on. Dr Eboe-Osuji has a very impressive resume and also satisfies the criteria laid out Sections 231, 238, 250 and 256 of Nigeria's Constitution for appointment to be a Judge in Nigeria which he also fulfilled in being nominated and elected as a Judge of the ICC pursuant to Article 36.3 (a) which states that, “The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”.

The references to Judges in Nigeria are made to the Judges of the Superior Courts of record that have jurisdiction in criminal matters in Nigeria's Court hierarchy namely the Justices of the Supreme Court, Court of Appeal, Federal High Courts, High Court of the Federal Capital and the High Court of the States. Appointments of Judges in Nigeria are made by the following namely the President, Governor, National Judicial Council, Federal Judicial Service Commission, Judicial Service Committee of the Federal Capital Territory, Abuja and the State Judicial Service Commission. These appointments are also made subject to the principles of 'federal character of Nigeria' enshrined in Section 14 (1) and (4) that appointments should promote national unity, should not be dominated by few ethnic or sectional groups and shall reflect the diversity of the people of Nigeria.

The qualifying years for a legal practitioner in Nigeria to be appointed as a Judge varies on the Court with the Supreme Court a period of not less than fifteen years [Section 231 (3) of the Constitution], Court of Appeal a period of not less than twelve years [Section 238 (3) of the Constitution], and the High Courts a period of not less than twelve years [Sections 250 (3), 251 (3) and 256 (3) of the Constitution].

Appointments of Judges to the Supreme Court, Court of Appeal, Federal High Courts, High Court of the Federal Capital are made by the President 'on the National Judicial Council' the language used in the Sections 231 (2), 238 (2), 250 (2) and 256 (2) of Nigeria's Constitution and appointments to the State High Court by the Governor of the State on the National Judicial Council pursuant to Section 251 (2) of the Constitution. Similar provisions are also used for the appointment of the Chief Justice, President of the Court of Appeal, Chief Judge of the Federal High Court and Chief Judge of the High Court of the Federal Capital Territory, Abuja except that those appointments are subject to confirmation of such appointment by the senate and in the case of the Chief Judge of the State the State House of Assembly. The phrase 'on the National Judicial Council' used in the Constitution is construed as appointment made by the President or Governor to the National Judicial Council (NJC) or recommended by the President or Governor to the National Judicial Council.

The NJC is a creation of statute established pursuant to the provisions of Section 153 (1) (i) of the Constitution. The Third Schedule Part I paragraph 20 of the Constitution outlines the composition of the membership of the NJC. Furthermore according to The Third Schedule Part I paragraph 21 of the Constitution the NJC shall recommend to the President from the list of persons submitted to it by the Federal Judicial Service Commission 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 from the Judicial Service Committee of the Federal Capital Territory, Abuja, the list of persons submitted to it by the persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja and recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States.

The Federal Judicial Service Commission compliments the role of the NJC in the appointment of Judges as it advises the NJC in respect of appointments to the office of the Chief Justice of Nigeria, Justice of the Supreme Court, the President of the Court of Appeal, a Justice of the Court of Appeal, the Chief Judge of the Federal High Court and Judges of the Federal High Court (Third Schedule Part I E paragraphs 12 - 13 of the constitution). The State Judicial Service Commission established pursuant to Section 197 (c) of the Constitution advises the National Judicial Council on suitable persons for nomination to the office of the Chief Judge of the State and Judges of the High Court of the State (Third Schedule Part II C paragraphs 5 – 6 of the Constitution). The Judicial Service Committee of the Federal Capital Territory, Abuja established pursuant to Section 304 of the Constitution recommends to the National Judicial Council suitable persons for nomination for appointment to the office of the Chief Judge of the Federal Capital Territory, Abuja and Judges of the High Court of the Federal Capital Territory, Abuja (Third Schedule Part III paragraphs 1 - 2 of the Constitution).

The lopsided nature, lack of openness and transparency of the appointment of Judges in Nigeria was recently queried by the President of the Nigerian Bar Association, Joseph Daudu, a Senior Advocate of Nigeria (SAN) who was of the view that the current process of appointing judges,

“is fraught with all manner of irregularities,” "Siblings and favoured ones have been known to be appointed as judges when more qualified persons are available. In the long run, the Judiciary has become loaded with persons who ordinarily would not become judges, if a level playing field was created by the powers that be…"Against this backdrop, the Bar suggested a more pragmatic model, which is that every Nigerian lawyer who meets the constitutional requirement should not be subjected to this present model of appointment of judges…, but a transparent and open mechanism of self-assessment of previous judgments, briefs and academic papers of applicants."

"It was also suggested that the present mode of appointment (of Judges) is damaged by criticisms that there is no room for competition and only nominees of senior judges/justices ever get appointed as judges. An objective procedure will guarantee a level playing field for all appointments. (See http://www.thenationonlineng.net/2011/index.php/news-update/30408-why-nba-didn-t-sign-report-by-daudu.html)

The current process of appointing judges only from the Magistracy, practising advocates in public service to detriment of those in academia, private practise and those working in foreign jurisdictions but qualified in Nigeria and the lack of consultation with the NBA is a process that should be dispensed with if Nigeria is to appoint the best crop of candidates from the bar.

The appointment of the right calibre of Judges goes a long way in strengthening the rule of law institutions. This is encapsulated in the often quoted detailed approach set out by Nigeria's leading nationalist, elder statesman and Barrister, the late Chief Obafemi Awolowo (SAN) as prerequisites and qualities expected of those in judicial office and appointment of judges. According to Chief Awolowo,

"If we had our way, we would insist that no one without a good knowledge of Mathematics, or Logic and Methodology, and Psychology, in addition to his professional qualifications, should be elevated to the Bench. The rigorous mental drill which these disciplines enforce; the tidiness of mind and precision in thought and presentation which the study of Mathematics, Logic and Methodology provide; and the breadth of outlook and a deep comprehension of 'the complex of human passion' which psychology imparts – all these, among other things, are sine qua non of any healthy trial or adjudication of dispute. The court, as an organ of the State, is sui generis. It is the citizen's bulwark of last resort against the tyranny and unconstitutionality of the executive and Legislature, and against illegitimate invasion of, or arbitrary threat to, his rights, liberty, property, and life, from any quarter whatsoever. Those who are posted to protect this bulwark against violation must possess the finest intellectual and moral equipment…”

“For many obvious reasons, Nigeria cannot and must not, in future, brook mediocrity in any sphere of her public life, more especially so when such mediocrity tries to show its face in that sphere where, if admitted, it will be entitled by constitution to wear the ermined robe and the silk gown of judicial finality…”

“It cannot be disputed that the average standard of academic accomplishments in the judiciary should be as high as, if not higher than, that prevailing at the Bar or, indeed, in other sectors of our national life. Furthermore, the Bench, because of the unique role it is expected to play, should be so adorned by its occupants that it becomes invested with such halo as can spontaneously command general respect, and at the same time exert a most powerful attraction on the best among the lawyers…”

“In addition to academic qualification, a person should have long and intensive practice at the Bar before being appointed as a judge. Such a practice will strengthen and enhance his academic qualification and moral qualities. He will be immensely enriched in experience, thereby. What is more, his success at the Bar will fortify his spirit of independence and self –reliance.”

“In any case, the independence and impartiality of the judiciary cannot be secured by making the Bench accessible to those who have not done so well in the academic race and or find it difficult to make a living at the Bar…” (see Chief Obafemi Awolowo, Thoughts on Nigerian Constitution (Lagos: International Press, 1966) pages 76 – 78).

Dr Eboe-Osuji no doubts merits his appointment as Judge of the ICC as he had been selected based on his sterling qualities in his field of expertise in International Law and Criminal law as noted by the selection criteria in selecting him for election and appointment to the ICC. The appointment of Dr Eboe-Osuji as a Judge of the ICC should engineer the reform of a more transparent, open and fair process of appointment of Judges in Nigeria. Nigeria's obligations under the Rome Statute and indeed in International law construe the appointment of judges to be based on merit, expertise, and requisite years of experience. These criteria are pari materia with that of Judges appointed to the ICC, ad-hoc International Criminal Tribunals and the regional Human Rights African Courts (the ECOWAS Community Court of Justice and the African Court). The criteria for appointing Judges to these courts are known to all and are not devised with the intention of weeding out otherwise eminently qualified candidates. The framework of International law in the appointment of Judges can be found in the Principles on the Independence of the Judiciary 1985. The 10th principle of the Basic Principles on the Independence of the Judiciary 1985 provides that:

"Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory" (see Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985).

This principle means that, irrespective of the method of selection of judges, candidates' professional qualifications and their personal integrity must constitute the sole criteria for selection (see Human Rights in the Administration of Justice: A Manual on Human Right for Judges, Prosecutors and Lawyers (United Nations New York and Geneva, 2003), page 123).

The remarks of Chief Awolowo, the 10th principle of the Basic Principles on the Independence of the Judiciary and standards of International law goes to show that the current perceptions and levels of public trust and confidence in the appointment of judges severely undermines and erodes the administration of justice in Nigeria if the current practice of appointing judges in Nigeria does not wholly the necessary reform and changes to embrace these core principles. Such changes would mean that upon the successful completion of stint at the ICC Dr Eboe-Osuji rightly deserves to be appointed straight to the bench of the Supreme Court.

Postscript: At a time of mourning for victims of cowardly bombings by barbaric terrorists in Abuja, Suleja Jos and Gadaka, I pray our Lord through his Son and Saviour Jesus Christ comforts the family and friends of the bereaved and wounded and also wish everyone a merry Xmas and prosperous New Year, 2012.

Omoba Oladele Osinuga Esq. Solicitor and Advocate Supreme Court of Nigeria, International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe writes from Dagenham, Essex UK.

[email protected]

Omoba Oladele Osinuga
Omoba Oladele Osinuga, © 2011

The author has 16 publications published on Modern Ghana. Column Page: OmobaOladeleOsinuga

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