CHAPTER TWO

LITERATURE REVIEW

Conceptual framework

Concept of Judiciary and legal system

The judiciary and legal system play a crucial role in any democratic society, serving as the

cornerstone of the rule of law and the protection of human rights. In Nigeria, the judiciary and

legal system are essential in interpreting and enforcing the law, settling disputes, and upholding

the constitution.1 The judiciary is made up of different levels of courts, each with specific

jurisdictions to hear cases. The legal system encompasses the entire apparatus used to create,

interpret, and enforce laws, including the courts, legal practitioners, and relevant government

bodies. The role of the judiciary and legal system in Nigeria is to ensure that the country operates

within the confines of the law, with impartial and independent judicial officers presiding over

cases to ensure that justice is served. 2 The judiciary is responsible for the interpretation of the

constitution and other laws, ensuring that they are applied consistently and in accordance with

the law. This helps to prevent the abuse of power by the executive and legislative branches of

government and protects the rights of citizens.

The independence of the judiciary is of utmost importance in ensuring that justice is served

impartially and free from external influence. According to the International Commission of

Jurists,3 independence is defined as “the ability of the judiciary to function freely and impartially,

without improper influences, inducements, pressures, threats or interferences, direct or indirect,

from any quarter or for any reason.” In Nigeria, the constitution and the National Judicial

1
REPORT BACK TO RULE OF LAW, “LEGAL AND JUDICIAL SECTOR REFORM IN NIGERIA”
(2000).
2
Okechukwu Oko, “Contemporary Law Practice in Nigeria” (1994) 38 Journal of African law
104
3
International Commission of Jurists, “International Principles on the Independence and
Accountability of Judges, Lawyers and Prosecutors” (2007).
Council (NJC) play crucial roles in protecting the independence of the judiciary. The NJC, an

administrative body, is responsible for the appointment of judicial officers, the discipline of

judicial officers, and the administration of justice.4 However, the independence of the judiciary in

Nigeria has been challenged in recent times, with some instances of interference and political

pressure on the judiciary. This has raised questions about the extent to which the judiciary is

truly independent and impartial in Nigeria. The suspension of Justice Ayo Salami in 2011, for

instance, raised concerns about the independence of the judiciary and the extent to which the

NJC was influenced by the executive branch of government.5

The Judiciary and the legal system in Nigeria play a crucial role in interpreting and enforcing the

law. The different levels of courts in Nigeria, each with its own jurisdiction, work together to

ensure that justice is served. The Nigerian judiciary comprises several courts, including the

Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the

High Courts of the States, the Sharia Courts of Appeal and the Customary Courts of Appeal,

among others.6 The jurisdiction of these courts varies and each court is tasked with the

responsibility of hearing and determining cases within its competence. For example, the Supreme

Court is the highest court in the land and has the final appellate jurisdiction over all other courts

in the country. On the other hand, the Federal High Court has exclusive jurisdiction over federal

revenue cases, while the National Industrial Court has jurisdiction over employment and

industrial disputes.7

The role of the judiciary in interpreting and enforcing the law is central to the maintenance of the

rule of law and the protection of individual rights and freedoms. The judiciary is responsible for
4
National Judicial Council Act, cap. N110, Laws of the Federation of Nigeria, 2004.
5
AT Shehu and MK Tamim, “SUSPENSION OF JUSTICE ISA AYO SALAMI: IMPLICATIONS FOR
RULE OF LAW, JUDICIAL INDEPENDENCE AND CONSTITUTIONALISM” (2016) 9 African Journal
of
Criminology and Justice Studies: AJCJS,.
6
Misbau Lateef, “JURISDICTION OF COURTS IN NIGERIA.”
7
ibid
interpreting the Constitution and the laws of the land, 8 and for ensuring that the laws are upheld

and followed. It also serves as a check against the excesses of other branches of government,

particularly the executive and the legislative arms, thereby preserving the separation of powers. 9

The judiciary is also responsible for enforcing the law by providing remedies and sanctions in

cases where the law has been violated. This involves the interpretation of the law and the

application of the law to the facts of each individual case. It is the duty of the judiciary to ensure

that the law is applied fairly and justly in all cases, regardless of the status of the parties

involved. This impartiality and independence of the judiciary is essential to the maintenance of

the rule of law and the protection of individual rights and freedoms.10

An independent and impartial judiciary is of utmost importance for the rule of law and protection

of human rights. The rule of law requires that the judiciary is separate from the executive and the

legislature and that it has the power to interpret the law objectively and impartially. The judiciary

plays a crucial role in the protection of human rights by interpreting the provisions of the

Constitution, domestic laws and international human rights treaties. In order to ensure that the

judiciary is independent and impartial, certain principles must be adhered to, including the

independence of the judiciary from the executive and the legislature, the impartiality of judges,

and the protection of the independence of the judiciary through adequate funding and security of

tenure for judges.11. Judicial independence means that judges should be free from any external

influences and pressures and should not be subjected to any form of interference from the

executive, the legislature or any other external body. Independence of the judiciary helps to

ensure that the judiciary acts impartially and in the interest of justice. In order for the judiciary to
8
Constitution of the Federal Republic of Nigeria 1999 (as amended)
9
Olabisi D Akinkugbe, “The Politics of Regulating and Disciplining Judges in Nigeria” [2020]
SSRN Electronic Journal.
10
ibid
11
International Commission of Jurists, “International Principles on the Independence and
Accountability of Judges, Lawyers and Prosecutors” (2007).
be truly independent, it is important that the appointment, transfer and promotion of judges be

made on merit and in accordance with fair procedures.12

Judicial impartiality refers to the ability of the judiciary to decide cases objectively, without fear

or favor, prejudice or bias. Impartiality is an essential requirement of the rule of law and is key to

ensuring that the judiciary can operate effectively in the protection of human rights. A judiciary

that is impartial is able to decide cases fairly, regardless of the social, economic, political or

other status of the parties involved.13 In order to ensure that the judiciary is impartial, the

selection process of judges must be fair and transparent, and the terms of appointment and

removal of judges must be provided for in the constitution or other legal instruments.14 In

addition to independence and impartiality, the judiciary must be adequately funded and have

sufficient security of tenure in order to protect its independence. Adequate funding ensures that

the judiciary has the necessary resources to carry out its functions and to make decisions

impartially. Security of tenure means that judges are not subject to arbitrary removal or

termination of their appointment and are protected against intimidation or other forms of

interference. The protection of the independence of the judiciary is essential for the effective

functioning of the rule of law and the protection of human rights.15

Concept of Nigerian constitution

The Nigerian Constitution serves as the supreme law of the land, providing the framework for

the government and outlining the rights and freedoms of citizens. It was first written in 1960,

with subsequent amendments in 1963, 1979, 1989, and 1995. The current constitution came into

force on May 29, 1999 and has undergone various reforms in the years since its adoption. The
12
([Link])
<[Link]
judges-in-nigeria-th e-need-for-a-change/> accessed February 1, 2023.
13
ibid
14
United Nations, “JUDICIAL ETHICS TRAINING MANUAL FOR THE NIGERIAN JUDICIARY”
(2020).
15
REPORT BACK TO RULE OF LAW, “LEGAL AND JUDICIAL SECTOR REFORM IN NIGERIA”
(2000).
Nigerian Constitution is divided into several parts and contains provisions relating to the

organization of the government, the powers and functions of the various branches, and the rights

and freedoms of citizens. The preamble of the constitution states that the purpose of the

document is to create a “just and equitable society” and to promote “economic advancement”

and “political stability”.16 The constitution provides for a federal system of government with a

separation of powers between the executive, legislative, and judicial branches.

The executive branch is responsible for the administration of the country and is headed by the

President. The President is elected by popular vote for a maximum of two four-year terms and is

responsible for the appointment of federal ministers and ambassadors. The legislative branch is

composed of the National Assembly, which is responsible for making laws and overseeing the

work of the government.17 The National Assembly is made up of the Senate and the House of

Representatives. The judicial branch is responsible for interpreting the constitution and resolving

disputes. The judiciary is independent and impartial, and is headed by the Chief Justice of

Nigeria. The constitution also provides for the protection of the rights and freedoms of citizens.

These rights include the right to life, the right to personal liberty, freedom of expression, and the

right to own property. The constitution provides for the establishment of a Human Rights

Commission to ensure that these rights are protected and that any violations are addressed. 18 The

constitution also provides for the establishment of an independent Electoral Commission to

oversee the conduct of elections and to ensure that they are free and fair.

The appointment of judicial officers in Nigeria is a crucial aspect of the country's legal system

and is governed by several provisions in the Constitution. The appointment of judges is governed

16
Constitution of the Federal Republic of Nigeria 1999 (as amended).
17
ibid
18
Leesi Ebenezer Mitee, Constitution of the Federal Republic of Nigeria 1999: Introductory
Comments and Full Text (Worldwide Business Resources 2009).
by Section 271 of the Constitution,19 which provides for the appointment 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 Judges of the Federal High

Court. This section outlines the procedure for appointment, which involves the Governor of the

state recommending suitable candidates to the National Judicial Council (NJC), which will then

make recommendations to the President of the Federal Republic of Nigeria. The President is then

empowered to appoint judges in accordance with the recommendations of the NJC.

The provisions of the Constitution relating to the appointment of judicial officers aim to ensure

the independence, impartiality, and accountability of the judiciary. This is in line with the

International Principles on the Independence and Accountability of Judges, Lawyers and

Prosecutors, which state that the appointment of judges must be based on merit, with due regard

for their independence, impartiality, and professional competence. 20 The NJC is responsible for

ensuring that this principle is upheld, as it is responsible for considering the suitability of

candidates for appointment, taking into account factors such as their professional qualifications,

experience, and integrity.

In addition to the appointment process, the Constitution also provides for the removal of judicial

officers in the event of misconduct, misbehavior, or incapacity. The NJC is responsible for

investigating complaints against judges and making recommendations to the President for

removal if it finds that the allegations against the judge are substantiated. 21 The Constitution also

provides for the suspension of judges in the event of an ongoing investigation into their conduct.

19
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.271
20
Olabisi D Akinkugbe, “The Politics of Regulating and Disciplining Judges in Nigeria” [2020]
SSRN Electronic Journal.
21
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.253(1)
It is important to note that the provisions of the Constitution relating to the appointment and

removal of judicial officers play a crucial role in maintaining the integrity and independence of

the judiciary. As the judiciary is the ultimate guardian of the rule of law and the protection of

human rights, it is imperative that the appointment process is transparent and free from political

interference. This is essential to ensure that the judiciary is able to function effectively and

impartially, and to ensure that the rule of law and human rights are protected.

The National Judicial Council (NJC) is another important constitutional body established under

the provisions of the 1999 Constitution of the Federal Republic of Nigeria. 22 The establishment

of the NJC was aimed at ensuring the independence and impartiality of the judiciary and to

promote good governance within the judicial system of Nigeria. The NJC is responsible for the

appointment, promotion, and discipline of judicial officers within the country. This includes the

appointment of Judges of the Supreme Court, the Court of Appeal, the Federal High Court, and

the High Courts of the States and Federal Capital Territory. The provisions relating to the

establishment of the NJC can be found in Part I, Chapter VII, Section 153 of the Constitution.

This section provides for the composition of the Council which consists of the Chief Justice of

Nigeria as the Chairman, the Attorney-General of the Federation, the President of the Court of

Appeal, the Chief Judges of the Federal and States High Courts, and the Grand Kadi of the

Sharia Court of Appeal of the Federal Capital Territory.

The NJC is also responsible for the administration of the judicial sector and ensures that judicial

officers comply with the Code of Conduct for Judicial Officers. This Code of Conduct sets out

the ethical and professional standards to which judicial officers must adhere to, and any violation

of these standards may lead to disciplinary proceedings being taken against the judicial officer

concerned. The Constitution provides for the independence of the NJC, and it is empowered to
22
ibid
exercise its powers and perform its functions without interference from any other body or

authority. This independence is critical to ensuring that the NJC is able to carry out its functions

effectively and impartially, free from political and other forms of interference. Furthermore, the

NJC is also responsible for the welfare of judicial officers and for making recommendations to

the National Assembly for the improvement of the administration of justice in the country. This

includes recommendations on the establishment of additional courts and the appointment of

additional judicial officers.

Concept of Judicial officers

Judicial officers refer to individuals who are authorized to interpret, apply, and enforce the law in

a judicial capacity. These individuals play a critical role in the administration of justice,

particularly in ensuring that the rights and freedoms of citizens are protected. 23 Globally, the role

of judicial officers varies depending on the legal system and jurisdiction, but they are generally

tasked with ensuring that the law is applied fairly and equitably. In Nigeria, the term "judicial

officer" is defined in Section 318 of the Constitution of the Federal Republic of Nigeria 1999. 24

According to this section, a judicial officer is a person appointed to exercise judicial power in

Nigeria, including judges of superior courts, magistrates, and customary court judges. This

definition highlights the broad nature of the role of judicial officers in Nigeria, encompassing not

only the traditional common law courts but also traditional and customary courts.

Judicial officers play a vital role in Nigeria's legal system, particularly in the resolution of

disputes and the protection of citizens' rights. They are responsible for hearing cases,

determining the facts, and applying the law in order to arrive at a fair and just decision. This is

why the appointment of judicial officers in Nigeria is governed by strict legal provisions aimed

at

23
United Nations, “JUDICIAL ETHICS TRAINING MANUAL FOR THE NIGERIAN JUDICIARY”
(2020).
24
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.318
ensuring their impartiality and independence. In Nigeria, the appointment of judicial officers is

governed by the provisions of the Constitution25 and the National Judicial Council (NJC) act26.

The NJC is responsible for recommending the appointment of judicial officers to the President,

who then forwards the recommendations to the Senate for confirmation. The provisions of the

Constitution ensure that the appointment of judicial officers is based on merit and not on political

considerations, thus promoting the independence of the judiciary and ensuring that judicial

officers are free from external influence in the discharge of their duties. The independence and

impartiality of judicial officers is essential for the effective functioning of the rule of law. It

ensures that citizens have access to justice and that their rights are protected, regardless of their

political, social, or economic status. In order for judicial officers to perform their duties

effectively, they must be free from political and other forms of external influence.

Judicial officers play a vital role in the administration of justice in Nigeria. Their role and

responsibilities are to interpret and apply the law in a neutral, impartial and fair manner. This

helps to ensure the protection of individual rights and the rule of law. The role of judicial officers

can be divided into two categories: adjudicative and administrative.27 Adjudicative

responsibilities include the interpretation of laws and the resolution of disputes through the

application of legal principles. This involves hearing and deciding cases in a fair and impartial

manner, taking into account all relevant facts and arguments presented by both parties. Judicial

officers also have the power to make binding decisions and enforce their orders through the use

of contempt proceedings. This power is critical to ensuring the effective functioning of the

judiciary and the maintenance of the rule of law.28

25
ibid
26
National Judicial Council Act, cap. N55, Laws of the Federation of Nigeria, 2004.
27
International Commission of Jurists, “International Principles on the Independence and
Accountability of Judges, Lawyers and Prosecutors” (2007).
28
ibid
Administrative responsibilities of judicial officers include the management of the courts, the

appointment of court staff and the allocation of resources. They are responsible for ensuring the

efficient and effective operation of the court system, as well as ensuring that the rights of

litigants are protected. Additionally, they play a key role in the development and implementation

of policies and programs aimed at improving the administration of justice. This includes

initiatives aimed at reducing delays and improving the quality of legal services. In addition to

their adjudicative and administrative responsibilities, judicial officers in Nigeria have a

responsibility to uphold the values of the legal profession and to maintain the highest standards

of integrity and independence.29 They must act with impartiality and impartiality, avoiding

conflicts of interest and taking steps to avoid situations that may create the appearance of bias.

This is critical to ensuring public confidence in the judiciary and the rule of law. To fulfill their

role and responsibilities, judicial officers must be highly trained and skilled in the application of

the law. They must also be equipped with the necessary resources, including adequate funding

and support, to carry out their duties effectively. This requires a strong and independent

judiciary, with the resources and support needed to carry out its mandate.

The appointment of judicial officers is an important aspect of the administration of justice in

Nigeria. It is a process that is guided by specific provisions in the Constitution and laws of the

country. In order to be eligible for appointment as a judicial officer, an individual must possess

certain qualifications and meet certain criteria as prescribed by law. The Code of Conduct for

Judicial Officers outlines the standards of fidelity and diligence expected from such an

appointee. Additionally, Section 232(1)30 of the Constitution provides for a minimum age

29
([Link])
<[Link]
judges-in-nigeria-th e-need-for-a-change/> accessed February 1, 2023.
30
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.6.
requirement for judicial officers. The individual must also possess such other qualifications as

may be prescribed by an Act of the National Assembly.31

In addition to the constitutional requirements, the National Judicial Council (NJC) has set out

specific selection criteria for the appointment of judicial officers. These criteria include integrity,

impartiality, professional competence, good character and reputation, as well as the ability to

communicate effectively both in writing and orally. 32 The process for the appointment of judicial

officers in Nigeria is regulated by the Constitution and the National Judicial Council. The first

step in the process is the recommendation by the NJC of a candidate for appointment. This

recommendation is based on an assessment of the candidate's qualifications and suitability,

taking into consideration the criteria set out by the NJC. 33 Once the recommendation has been

made, the appointment is made by the Governor, subject to the confirmation of the appointment

by the Senate. In making the appointment, the Governor is required to have regard to the

recommendation of the NJC, but is not bound by it. This ensures that the appointment process is

transparent, impartial and free from political interference.

The National Judicial Council (NJC)

The National Judicial Council (NJC) is established under section 153(1) of the 1999 Constitution

as amended.34 It has the powers to make appointments and exercise disciplinary control over

Judicial Officers specified in paragraph 21 of Part I of the Third Schedule of the Constitution. In

addition, the NJC is responsible for collecting, controlling, and disbursing all funds, both capital

and recurrent, for the judiciary, as well as dealing with all matters related to policy and

31
Giwa Ayuba, "APPOINTMENT OF JUDICIAL OFFICERS; AN EXAMINATION OF THE GOVERNING
CONSIDERATIONS" (2020).
32
Akinkugbe OD, “The Politics of Regulating and Disciplining Judges in Nigeria” [2020] SSRN
Electronic Journal).
33
International Commission of Jurists, “International Principles on the Independence and
Accountability of Judges, Lawyers and Prosecutors” (2007))
34
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.153(1)
administration. The National Judicial Council (NJC) is established by the National Judicial

Council Act, Cap N55, Laws of the Federation of Nigeria, 2004. 35 As stated in section 3(1) of the

act, the NJC serves as the primary center for judicial activities aimed at promoting efficiency,

uniformity, and improvement in the quality of judicial services in superior and inferior courts. 36

The composition of the NJC is made up of the Chief Justice of Nigeria (CJN) who serves as the

Chairman, the Attorney-General of the Federation, the President of the Court of Appeal, the

Chief Judges of the Federal High Court and the High Court of the Federal Capital Territory, the

Grand Khadi of the Sharia Court of Appeal of the Federal Capital Territory and such other

judicial officers as may be appointed by the President on the recommendation of the CJN. It is

worthy to note that the membership of the NJC is made up of both serving and retired judicial

officers who are knowledgeable and experienced in the administration of justice.37

The functions of the NJC are varied and wide-ranging. The NJC is responsible for the

appointment, promotion, discipline and removal of judicial officers. The Council has the power

to receive complaints against judicial officers and initiate disciplinary proceedings against them

where it deems necessary.38 The NJC also has the responsibility to advise the President on the

appointment of judicial officers and to make recommendations for their promotion, transfer, and

posting. The NJC also has the responsibility to make rules and regulations for the guidance of

judicial officers and to consider and make recommendations on matters relating to the

administration of justice in Nigeria. This includes making recommendations on the allocation of

cases, fixing terms of courts and other related matters. In addition, the NJC is also responsible

35
National Judicial Council Act, cap. N55, Laws of the Federation of Nigeria, 2004
36
“Duties and Powers of the National Judicial Council (NJC)” (Legalnaija - Nigeria’s Legal Tech
Company, October 25, 2016)
<[Link]
accessed January 31, 2023.
37
ibid
38
REPORT BACK TO RULE OF LAW, “LEGAL AND JUDICIAL SECTOR REFORM IN NIGERIA”
(2000).
for the training and welfare of judicial officers and for the provision of facilities and

infrastructure to ensure the effective administration of justice

The National Judicial Council (NJC) plays a critical role in the appointment of judicial officers

in Nigeria. According to Section 153 of the Nigerian Constitution, 39 the NJC is charged with the

responsibility of recommending persons for appointment to the office of the Chief Justice of

Nigeria, the Justices of the Supreme Court, the President of the Court of Appeal, the Justices of

the Court of Appeal, and other judicial officers as may be prescribed by an Act of the National

Assembly.

The NJC operates as a body independent of government influence and operates under the

provisions of the 1999 Constitution of the Federal Republic of Nigeria, as well as the NJC Act. 40

The council is composed of the Chief Justice of Nigeria, who serves as its Chairman, the

President of the Court of Appeal, and the Grand Kadi of the Sharia Court of Appeal of the

Federal Capital Territory, who serves as its members. Additionally, the council comprises the

Attorney-General of the Federation, the Minister of Justice, the Chief Judge of the Federal High

Court, the Chief Judge of the High Court of the Federal Capital Territory, and a representative of

the Nigerian Bar Association (NBA) elected by the National Executive Committee of the NBA. 41

The NJC is tasked with several critical responsibilities, including the recommendation of judicial

appointments to the President, the regulation of the affairs of the judiciary, the investigation of

complaints of judicial misconduct, and the disciplining of judicial officers who violate the

judicial code of conduct. In addition, the NJC is responsible for the welfare of judicial officers

and the development of the judiciary, including the training and capacity-building of judges and

magistrates.

39
ibid
40
ibid
41
United Nations, “JUDICIAL ETHICS TRAINING MANUAL FOR THE NIGERIAN JUDICIARY”
(2020).
The NJC's role in recommending judicial appointments is of particular importance. By providing

recommendations for appointment, the NJC helps to ensure that only highly qualified and

competent individuals are appointed to the bench. In making these recommendations, the NJC

considers factors such as academic qualifications, practical experience, and personal integrity,

among others. The council conducts extensive background checks and interviews with

prospective appointees to evaluate their suitability for appointment. It is important to note that

the NJC's role in recommending judicial appointments is advisory in nature, and the final

decision on appointments rests with the President. However, the President is expected to

consider the recommendations of the NJC when making appointments. This helps to ensure that

the appointment process is transparent and free from political influence and interference. In

conclusion, the NJC plays a vital role in ensuring the independence, impartiality, and integrity of

the judiciary in Nigeria by recommending highly qualified and competent individuals for

appointment to the bench. The National Judicial Council (NJC) plays a crucial role in the

discipline of judicial officers in Nigeria. According to section 153 (1) of the Constitution of the

Federal Republic of Nigeria 1999,42 the NJC is tasked with the responsibility of receiving

complaints against judicial officers, investigating such complaints and making recommendations

to the President for appropriate disciplinary measures. The role of the NJC in the discipline of

judicial officers is important for maintaining the integrity and independence of the judiciary, and

ensuring that judicial officers uphold the highest standards of judicial conduct.

In carrying out its role in the discipline of judicial officers, the NJC operates in accordance with

the provisions of the Constitution, as well as its own rules and regulations. The NJC has the

power to recommend the removal or compulsory retirement of judicial officers found guilty of

misconduct, as well as the imposition of other disciplinary measures such as suspension,

complaints of judicial misconduct, including complaints received from the public, as well as

from within the judiciary itself. The NJC is constituted by a broad cross-section of members,

including the Chief Justice of Nigeria, the President of the Court of Appeal, the Chief Judges of

the Federal High Court and the High Courts of the States, as well as other members appointed by

the President.43 This composition ensures that the NJC is representative of the various branches

of the judiciary, and is equipped to make informed decisions regarding the discipline of judicial

officers. In carrying out its role in the discipline of judicial officers, the NJC has been praised for

its impartiality and independence. This is reflected in its recommendations, which are made

based on the evidence before it, and are not influenced by any political or other external factors.44

The NJC's recommendations are also made in accordance with the principle of natural justice,

which requires that all parties involved in a dispute be given a fair and impartial hearing.

The role of the legislative arm of government

The role of the Senate in the appointment process of judicial officers in Nigeria is outlined in the

Constitution of the Federal Republic of Nigeria 1999 (as amended). Pursuant to Section 147(3)

of the Constitution,45 the appointment of a judicial officer to the office of a Justice of the

Supreme Court, a Judge of the Court of Appeal, a Chief Judge of a State, and a Grand Khadi of a

Sharia Court of Appeal must be confirmed by the Senate before the individual can take up the

appointment. The Senate is tasked with the responsibility of scrutinizing the candidate to ensure

that he or she possesses the necessary qualifications, integrity, and independence to occupy the

43
ibid
44
“Duties and Powers of the National Judicial Council (NJC)” (Legalnaija - Nigeria’s Legal Tech
Company, October 25, 2016)
<[Link]
accessed January 31, 2023.
45
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.147(3)
judicial office in question.46 The Senate's role in the appointment process is crucial in

maintaining the independence of the judiciary and preserving the integrity of the justice system.

The Senate provides a check and balance mechanism against the appointment of individuals who

are not fit and proper to hold judicial office, thereby ensuring that the judiciary remains impartial

and non-partisan. In fulfilling its role, the Senate may carry out its own investigation into the

candidate's background and qualifications, and may invite the candidate to appear before it to be

questioned on relevant matters.47

In this way, the Senate acts as a watchdog over the appointment process, ensuring that the

individual appointed has the necessary skills, experience, and integrity to uphold the law and

dispense justice impartially. Furthermore, the Senate's confirmation of the appointment gives the

public assurance that the individual appointed is fit and proper to hold judicial office, and

thereby enhances the credibility of the justice system.

The role of the Senate in confirming the recommendations of the National Judicial Council

(NJC) is an important aspect of the appointment process of judicial officers in Nigeria. The

Constitution of the Federal Republic of Nigeria 1999, in Section 271,48 provides for the

appointment of judicial officers by the Governor of a state upon the recommendation of the NJC

and subject to confirmation by the Senate. This role of the Senate serves as a crucial check on the

appointment process and ensures that only suitable and qualified individuals are appointed as

judicial officers.

Once the NJC has made its recommendations, it is the responsibility of the Governor to appoint

the candidates, subject to confirmation by the Senate. The Senate plays a critical role in this

46
Ishmael Gwunireama, “The Executive and Independence of the Judiciary in Nigeria” (2022)
2 PINISI JOURNAL OF ART, HUMANITY AND SOCIAL STUDIES.
47
ibid
48
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.271
process by conducting a thorough vetting of the candidates before confirming the

recommendations of the NJC. This involves a careful review of the candidates' qualifications,

experience, and suitability, as well as any other relevant factors that may impact their fitness for

appointment. The Senate may also seek additional information from the NJC or other relevant

sources before making its decision. Once the Senate has confirmed the recommendations of the

NJC, the Governor is then required to make the appointment of the judicial officers. This process

of confirmation by the Senate helps to ensure that the highest standards of integrity,

independence, and impartiality are maintained in the judiciary. It also helps to promote public

confidence in the administration of justice by ensuring that only qualified and suitable

individuals are appointed as judicial officers.

Independence of the Judiciary

The independence of the judiciary is a crucial aspect of any democratic system as it ensures that

the judges are impartial and free from interference when administering justice. 49 In Nigeria, the

constitution provides several provisions aimed at protecting and preserving the independence of

the judiciary. One of the key factors that contribute to the independence of the judiciary is the

appointment process. According to the Constitution of the Federal Republic of Nigeria 1999, the

appointment of judges is made by the President on the recommendation of the National Judicial

Council (NJC) subject to confirmation by the Senate. 50 The NJC, which is composed of senior

judicial officers and other members, has the responsibility of recommending suitable candidates

for appointment based on factors such as vacancies and suitability.51 This system of appointment

49
International Commission of Jurists, “International Principles on the Independence and
Accountability of Judges, Lawyers and Prosecutors” (2007).
50
ibid
51
ibid
helps to insulate the judiciary from political influence and ensures that only qualified individuals

are appointed as judges.

Another factor that contributes to the independence of the judiciary is the protection of judicial

tenure. The Constitution provides that once a judge is appointed, he or she shall not be removed

from office except on the grounds of misconduct, incapacity or bankruptcy and subject to the

procedure prescribed by the constitution. 52 This provision helps to prevent the arbitrary removal

of judges and ensures that they can discharge their duties without fear of retribution. In addition,

the constitution also provides for the financial independence of the judiciary. The judiciary is

guaranteed financial autonomy, which means that it has control over its own budget and financial

resources. This allows the judiciary to carry out its duties effectively and independently without

interference from other branches of government. Furthermore, the constitution also provides for

the protection of judicial proceedings.53 The proceedings of courts are guaranteed to be public

and fair, and the decision of a court shall not be subject to any restriction or interference. This

means that the judicial process is open and transparent, and the outcome of a case is determined

solely based on the evidence presented in court.

Representativeness and inclusiveness of the Judiciary

The representation of different segments of society in the judiciary is an important aspect of a

fair and just legal system. A judiciary that accurately reflects the diversity of the population it

serves is more likely to provide impartial and equitable treatment to all individuals who come

before the court.54 However, historically, certain groups have been underrepresented in the

judiciary, including women, people of color, and members of minority communities. In order to

address underrepresentation in the judiciary, various measures have been taken, including the

52
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.292
53
Constitution of the Federal Republic of Nigeria 1999 (as amended), s.6.
54
United Nations, “JUDICIAL ETHICS TRAINING MANUAL FOR THE NIGERIAN JUDICIARY”
(2020).
implementation of affirmative action programs, the creation of outreach and mentorship

programs, and the adoption of diversity and inclusion initiatives. For example, in the United

States, the American Bar Association has adopted a resolution calling for the promotion of

diversity in the legal profession and the judiciary, which includes a commitment to promoting

the appointment and election of women and minorities to the bench.55

In Nigeria, however, the judiciary faces the challenge of underrepresentation of certain groups,

particularly women and ethnic and religious minorities. Despite some efforts to address this

issue, the representation of these groups in the judiciary remains low. For example, according to

the National Human Rights Commission of Nigeria (NHRC) 56 report on the representation of

women in the judiciary, women occupy only 17% of the positions in the federal judiciary, with

even lower representation at the state level. Similarly, the representation of ethnic and religious

minorities in the judiciary is also low.

To address these challenges, several measures have been taken. For instance, the National

Judicial Council (NJC) has implemented policies aimed at increasing the representation of

women and other marginalized groups in the judiciary. The NJC has also established a quota

system for the appointment of female judges, which has resulted in a slight increase in the

representation of women in the judiciary.57 Additionally, the Nigerian Bar Association (NBA)

has launched initiatives aimed at increasing the representation of women and minorities in the

judiciary. The NBA has organized workshops and training programs for aspiring female and

minority judges, and has advocated for greater diversity in judicial appointments.

55
“Issue 1: Providing Justice” (United States Courts)
<[Link] accessed February 2,
2023.
56
NHRC, “More Representation of Women in Judiciary Good for All Citizens, Ojukwu”
([Link], March 11, 2022)
<[Link]
women-in-judi [Link]> accessed February 2, 2023.
57
United Nations, “JUDICIAL ETHICS TRAINING MANUAL FOR THE NIGERIAN JUDICIARY”
(2020).
It is therefore important that ongoing efforts are made to address the underrepresentation of

certain groups in the judiciary, including through the development of more comprehensive

programs and initiatives aimed at increasing diversity and promoting equality in the legal

profession and the judiciary. In this regard, the role of the legal profession and the judiciary, in

particular, is vital in promoting diversity, ensuring equal representation, and contributing to a

more inclusive and just society.

As noted by Ashworth and Zedner,58 "The judiciary is not just another part of the state. It has a

special role to play in upholding the rule of law and in safeguarding individual liberties. The

independence and impartiality of the judiciary is central to these functions."Thus, in order for the

judiciary to effectively carry out its duties and responsibilities, it is crucial that it accurately

represents the diversity of the population it serves, and that measures are taken to address any

barriers to equal representation.

THEORETICAL FRAMEWORK

Legal Positivism

Legal positivism is a theory about the nature of law that emphasizes the distinction between law

as it is and law as it ought to be. According to legal positivists, the only valid sources of law are

those that have been enacted or recognized by a legitimate authority, such as a state or other

political entity.59 This view was first articulated by the English philosopher John Austin in the

nineteenth century and later developed by H.L.A. 60 Hart, in his influential work, "The Concept of

Law" argued that legal systems are defined by their internal rules, which are created and

58
Ashworth A and Zedner L, “Criminal Justice” (4th edn, Oxford University Press 2009)
p.95. 59 Marmor, A., 'Legal Positivism' (2011) Stanford Encyclopedia of Philosophy
[Link] accessed 12 March 2023.
60
Smith, J, 'Criticisms of Legal Positivism' [2003] 27 Oxford Journal of Legal Studies
565. Constitution of the Federal Republic of Nigeria 1999, s 231(1).
enforced by officials who have been given the authority to do so by the legal system itself. 61 This

internal perspective on law distinguishes legal positivism from natural law theories, which hold

that there is a moral basis for law that transcends the decisions of any particular authority.

Joseph Raz, another legal philosopher, further developed the theory of legal positivism by

arguing that the authority of law is based on social facts, such as the existence of legal

institutions and the acceptance of legal norms by members of a community.62 He also

emphasized the importance of the "rule of law" as a principle of legal positivism, which requires

that laws be made and applied in a consistent and transparent manner. Legal positivism has been

the subject of much debate and criticism, with some arguing that it fails to account for the moral

dimension of law and others arguing that it is too narrow and ignores the role of natural law and

other non-state sources of law.63 Nonetheless, it remains a prominent and influential theory in

contemporary legal philosophy.

In Nigeria, legal positivism has been influential in the jurisprudence of the appellate courts.64 The

Nigerian Constitution recognizes the authority of the state as the source of law, stating that "the

appointment of a person to the office of Chief Justice of Nigeria shall be made by the President

on the recommendation of the National Judicial Council subject to confirmation by the Senate". 65

However, there have been debates about the role of non-state sources of law, such as customary

law, and the need for a more pluralistic and inclusive legal system. 66 The importance of legal

positivism in the Nigerian legal system was highlighted in the case of Judicial Service

61
Hart, H. L. A., The Concept of Law (Clarendon Press 1961)
62
Raz, J., The Concept of a Legal System: An Introduction to the Theory of Legal System
(Clarendon Press 1996).
63
ibid.
64
Ogbuabor JE, Osa IE, ‘The Place of Legal Positivism in the Jurisprudence of the Appellate
Courts in Nigeria’ (2015) 37 Journal of Law, Policy and Globalization 1-11.
65
Constitution of the Federal Republic of Nigeria 1999, s 231(1)
66
Towards Persons, Judicial Appointments in the European Union, available at:
[Link] (accessed on 12 March 2023).
Commission v. Cape Bar Council, which affirmed the supremacy of the Nigerian Constitution

and the authority of the state to create and enforce laws. 67 However, critics argue that legal

positivism fails to account for the diversity of legal systems and the need for a more inclusive

and culturally sensitive approach to law.68

Critical Legal Studies (CLS)

Critical Legal Studies (CLS) is a legal theory that emerged in the United States in the late 1970s

as a response to what its founders perceived as the limitations of traditional legal thinking. One

of the key concepts of Critical Legal Studies (CLS) is that law is not a neutral or objective entity,

but rather a political and ideological construct. This means that legal reasoning and decisions are

not based on universal principles of justice, but rather on the interests and values of those who

hold power in society. This understanding of law as a political and ideological construct is based

on the idea that social, economic, and political factors shape the way law operates, and that legal

decisions are influenced by a variety of factors, including the biases and assumptions of judges

and lawyers.69

In the context of the appointment process for judicial officers, this means that social, economic,

and political factors can play a role in determining who is appointed to the bench. For example,

wealth and influence can give certain individuals greater access and influence in the appointment

process, leading to a judiciary that is not representative of the broader population. Similarly,

political affiliations and connections may play a role in the selection of judges, potentially

leading to a judiciary that is not impartial.70

67
Judicial Service Commission v. Cape Bar Council, available at:
[Link] (accessed on 12
March 2023). 68 Waldron, Jeremy, Law and Disagreement (Oxford
University Press 2002).
69
Unger, R.M., ‘The Critical Legal Studies Movement’ (1975) Harvard Law Review, 99(8),
1565-1579. 70 Scott, R. E., 'From “one vision” to divided perspectives: Civil society, the
media and the politics of judicial appointments in Ontario, Canada' (2012) 19(3)
International Journal of the Legal Profession 261-277.
CLS proposes a number of measures to address these power dynamics and improve the

transparency and accountability of the appointment process. One such measure is to increase

public participation in the process. This can be done through public hearings or consultations,

where members of the public can provide input on the selection of judicial officers. This can help

to ensure that the appointment process is transparent and accountable to the broader population. 71

Another measure proposed by CLS is to increase diversity among judicial officers. This can help

to ensure that the judiciary is representative of the broader population and that different

perspectives are taken into account when making judicial decisions. This can be achieved

through the use of affirmative action policies, which aim to increase representation of

underrepresented groups in the appointment process.72

In addition, CLS emphasizes the need for ongoing scrutiny and evaluation of the appointment

process. This can be done through the use of independent oversight bodies, such as judicial

commissions or ombudspersons, which can monitor the appointment process and identify any

issues or areas for improvement.73

CLS can be applied to examine the appointment process for judicial officers in Nigeria, which is

an important aspect of ensuring an independent and impartial judiciary, but can also be subject to

power dynamics and hidden agendas. CLS proposes measures to improve the transparency and

accountability of the appointment process, such as increasing public participation through public

hearings or consultations, increasing diversity among judicial officers through affirmative action

policies, and ongoing scrutiny and evaluation of the appointment process through independent

oversight bodies. These measures aim to ensure that the appointment process is transparent and

71
Hutchinson, A.C., ‘Delegitimation and Demystification: A Critique of the Liberal Paradigm’
(1989) Osgoode Hall Law Journal, 27(2), 207-244
72
Comack, E., 'Locating critical criminology in Canada' (2012) 20(1-2) Critical
Criminology 135-146. 73 ^[Wriggins, J.B., ‘Critical Legal Studies and the Politics of
Property’ (1995) Wisconsin Law Review, 1995(5), 1285-1296.]
accountable to the broader population, and that the judiciary is representative of the diversity of

the Nigerian population. It is important to note that implementing these measures may not be

without challenges, as they may face resistance from those who benefit from the current system

of appointments. However, by addressing power dynamics and promoting transparency and

accountability, the appointment process can be transformed into one that is more equitable and

just.

In addition to the appointment process, CLS can also be applied to analyze and critique the role

of the judiciary in Nigeria. For example, CLS would argue that the judiciary is not an objective

entity but is shaped by social, economic, and political factors. This can manifest in decisions that

favor certain groups or interests over others, or in the failure to address systemic issues such as

corruption or human rights abuses. By adopting a critical perspective, the Nigerian judiciary can

better understand and address these issues, and work towards a more just and equitable society.

This requires a commitment to ongoing scrutiny and evaluation, as well as a willingness to

engage with diverse perspectives and voices.

The Separation of Powers theory

The Separation of Powers theory was first propounded by the French philosopher Montesquieu

in his work, "The Spirit of the Laws," published in 1748. The theory holds that the power of the

state should be divided among different branches or organs of government, with each branch

having distinct and separate functions, so as to prevent the concentration of power in a single

branch or individual.74The three main branches of government, as envisioned by Montesquieu,

are the legislative, executive, and judicial branches. The legislative branch makes the laws, the

executive branch enforces the laws, and the judicial branch interprets the laws. This division of

74
Montesquieu, The Spirit of the Laws (London, J. Nourse, 1748) book XI, ch. 6.
power is intended to prevent any single branch from becoming too powerful, as well as to ensure

that the different branches can check and balance each other.

In the context of the appointment of judicial officers, the theory of separation of powers would

suggest that the process should be separate from the executive and legislative branches and made

independently by the judicial branch. This would ensure that the judicial branch remains

independent and impartial, and is not subject to the influence of other branches of government. 75

Furthermore, the independence of the judiciary is crucial for the protection of individual rights

and the rule of law, as well as for ensuring the impartial administration of justice. As such, the

Separation of Powers theory is often seen as a cornerstone of democratic governance, and has

been widely adopted in various forms in many countries around the world, including the United

States, United Kingdom, and Nigeria.76

Rule Of Law Theory

The rule of law theory is a fundamental principle of democratic societies and is considered to be

the cornerstone of the legal system. The theory was propounded by the English philosopher, John

Locke, in the late 17th century. According to this theory, the law should be the supreme authority

in a society and all individuals, including those in government, should be subject to it. The rule

of law requires that the law be clear, stable, and consistent so that individuals can understand

their rights and obligations and that the government can act in accordance with the law.77

In the context of the appointment of judicial officers, the rule of law theory would suggest that

the appointment process should be fair, transparent, and based on objective criteria such as

qualifications and experience. The theory holds that the appointment of judicial officers should

75
Olabisi D Akinkugbe, “The Politics of Regulating and Disciplining Judges in Nigeria” [2020]
SSRN Electronic Journal
76
ibid
77
John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, Cambridge
University Press, 1960) ch. V, §§57-59, ch. X, §142.
not be influenced by political or personal considerations, but rather should be based solely on

merit. This is because judicial officers play a crucial role in the administration of justice and

must be impartial and independent in the discharge of their duties. The rule of law requires that

the appointment process for judicial officers be impartial and transparent. This means that the

selection criteria should be clearly defined and made available to the public.78 The process

should also be open and fair, with equal opportunities for all qualified individuals to apply for

the position. Additionally, the selection process should be based on objective criteria, such as

education, experience, and professional reputation, rather than on political or personal

considerations. In order to ensure that the rule of law is upheld in the appointment process for

judicial officers, it is important to have an independent body responsible for overseeing the

process. This body should be free from political or personal influence and should have the power

to investigate and discipline individuals who violate the rules and standards of the appointment

process.79

SUMMARY OF REVIEW

A review of the discussions held in this section provides a comprehensive overview of the key

provisions, processes and actors involved in the appointment of judicial officers in Nigeria.

Starting with the qualifications and selection criteria for judicial appointments, the Nigerian

constitution provides that potential candidates must possess a degree in law from a recognized

university, be of good character and be fit and proper persons to hold the office of a judicial

officer. The National Judicial Council (NJC) is the main body responsible for recommending

potential candidates for appointment to the President. The NJC considers various factors when

making recommendations, including merit, experience, independence, and integrity.

78
Anthony Valcke, The Rule of Law: Its Origins and Meanings (A Short Guide for Practitioners)
(2012).
79
ibid
The role of the Senate in the appointment process is to confirm the recommendations made by

the NJC. This involves conducting a thorough evaluation of the candidate's qualifications and

suitability for the position. The Senate's decision is based on a two-thirds majority vote and once

confirmed, the appointment is then forwarded to the President for final approval. The

independence of the judiciary is protected in the Nigerian constitution and various measures are

taken to ensure that the judiciary is not unduly influenced by other branches of government.

These measures include the appointment of judges based on merit, the provision of security of

tenure, and the protection of judicial salaries from arbitrary interference.

2.2.5 Historical Evolution of appointment of judges in Nigeria

The appointment of judges in Nigeria has undergone a significant evolution over the years.

Historically, the appointment of judges was primarily carried out by the executive branch, often

with little regard for the rule of law or judicial independence. 80 However, as Nigeria's democratic

institutions have matured, the process has become more transparent, accountable, and based on

merit.81 The current appointment process in Nigeria is governed by the provisions of the 1999

Constitution of the Federal Republic of Nigeria, which sets out the qualifications and selection

criteria for judicial officers. The National Judicial Council (NJC) is responsible for

recommending judicial appointments to the President, who then submits the names to the Senate

for confirmation. The NJC is composed of the Chief Justice of Nigeria, the President of the Court

of Appeal, the Chief Judges of the 36 states of the federation, and other senior judicial officers.

One of the key challenges in the appointment of judges in Nigeria is the issue of representation.

Despite efforts to promote diversity and inclusiveness in the judiciary, certain groups, such as

80
Adeyinka Salami and Deji Elumoye, “Appointment of Judicial Officers” ([Link])
<[Link]
accessed February 2, 2023.
81
O Adewoye, JUDICIAL SYSTEM IN SOUTHERN NIGERIA, 1854-1954 - LAW AND JUSTICE IN A
DEPENDENCY (1978).
women and ethnic minorities, are still underrepresented. The NJC has taken steps to address this

challenge, including the introduction of affirmative action policies and the establishment of

training programs to promote the career development of women and other underrepresented

groups.82

Despite these efforts, the appointment of judges in Nigeria continues to face numerous

challenges. The influence of politics and corruption remains a major concern, and there have

been instances where political considerations have been prioritized over merit in the appointment

process. In addition, the independence of the judiciary is often threatened by external pressures,

including political interference and media scrutiny.

82
Olabisi D Akinkugbe, “The Politics of Regulating and Disciplining Judges in Nigeria” [2020]
SSRN Electronic Journal <[Link]