In March 2020, the National Judicial Council (NJC) nominated 33 persons for appointment as Judges of the High Court of the Federal Capital Territory. And on Tuesday July 9th, 2020, the Nigerian Senate read out President Buhari’s request for the confirmation of the appointment of 11 Judges of the High Court of the Federal Capital Territory, following a letter written to that effect. In other words, the President decided not to appoint 22 out of the list of 33 nominees, forwarded by the NJC. No reasons have been given by the President, for doing so.

The President’s “Cherry-Picking” from the list forwarded by the NJC

Only a third of the names forwarded by the NJC to the President were appointed by the latter, amidst controversies over the way the NJC selections were conducted in the first place. When the President cherry-picks those he will appoint from a list submitted by the NJC, this raises important concerns of judicial independence, particularly when there are no explanations justifying the selection. Those concerns arise, because of the huge potential for misusing the power to make appointments. That power can be used to blackmail, coerce, extort, or obtain a quid pro quo from the Judiciary, or may otherwise be used illicitly, in a manner that ultimately undermines the independence of the Judiciary.

It may be noted that, the President is not reported to have raised any objections to the list since it was submitted to him in March 2020. This is not to say there were no grounds for reproving the recruitment process leading to the submission of the list, or the list itself. But, if the President was not satisfied with the composition of the list, or the process leading to it, he had a duty to be transparent about his objections to the list, and to publicly state them. This is inferable from the notion of the Judiciary’s independence, in the conduct of its own affairs. If this were not so, the President could permit improper motives to govern the choices he makes on judicial appointments, and be wholly unaccountable over his decisions.

President’s Selection Decisions lack Transparency, Disrespects Judiciary and threatens Judicial Independence

The President’s appointment of a downsized number of Judges for the FCT High Court, and the absence of information justifying the selective appointments, blatantly disrespects the Judiciary; the impression it creates, is that the Executive controls the Judiciary even regarding matters pertaining to the affairs and organisation of the Judiciary. When a similar question arose in India not so long ago (“In re Special Reference 1 of 1998”), the Supreme Court of India held that, the Indian President is bound to appoint Judges recommended by persons in the Judiciary, notwithstanding that the Indian Constitution gave the President power over appointment of Judges.