The issue of whether retired judges should be members of election petition tribunals has been a subject of discussion and arguments among stakeholders in the judiciary. Already members of the tribunal have been sworn in by the Chief Justice, but the clamour for inclusion of retired judges continues to heighten. Senior Correspondent, ONYEWUCHI OJINNAKA, outlines the position of some stakeholders on the issue.
The 242 members of the election petition tribunals sworn in by the Chief Justice of Nigeria (CJN), Mahmoud Mohammed, for the 36 states of the federation and the Federal Capital Territory (FCT) last February will soon swoop into action, if there are petitions over the conduct of the general elections.
While swearing in the chairmen and members of the tribunal, Justice Mohammed warned that any judge found wanting would have him or herself to blame, as the National Judicial Council (NJC) would not spare the rod in ensuring that the honour, respect and independence of the judiciary is protected.
The constitution of chairmen and members of the tribunals has been a topical issue. While some stakeholders in the judiciary advocate that retired judges should make the list, others preferred serving judges instead. Some argued that retired judges are men and women of integrity who served and retired creditably and therefore cannot be easily influenced, but others were concerned that with the appointment of serving judges, litigants will suffer, as their cases before the affected judges will not temporarily be heard for about six months or more.
Ebun Sofunde, a Senior Advocate of Nigeria (SAN), told TheNiche that he has no problem with the appointment of retired judges as members of the election tribunals, if it is permitted by law.
First of all, the law has to permit it, he said, adding that it is probably better because it allows the serving judges to face other cases. He pointed out that during the election petition times, a lot of cases suffer because judges are drafted to election tribunals to hear election cases.
His words: “It might be a better thing to have retired judges. A lot of judges who have retired are not necessarily tired.”
When asked if retired judges will not compromise their conscience, the lawyer said it is one position to think about, but he was quick to say that retired judges do not have any aspiration and so do not need to give any judgment to curry any favour. For him, they are more independent and could not easily be influenced.
“Even if the judges cannot be disciplined because they are retired, they can still face prosecution under the regular law if it is established that they committed any offence like bribery and corruption,” he added.
Expressing his position on the issue, Felix Fagbohungbe, a SAN, said it is neither here nor there. He favours the appointment of serving judges because their career is at stake. According to him, if serving judges are appointed and they do anything untoward, they will be putting their career at stake, but with retired judges, they have nothing to lose in their careers.
“They will not compromise. But the only disadvantage in the appointment of serving judges is that it will slow down the regular court proceedings; otherwise the appointment of serving judges is better,” he expressed.
Constitutional lawyer and SAN, Professor Itse Sagay, said: “I have advocated that retired judges should be used, so that judicial activities should not grind to a halt. Most of the courts do not function during hearing of election petitions. It affects the normal court activities.”
The professor of law does not agree with the thinking that retired judges may compromise, as their career is not at stake.
“They are older, with more integrity. They are not after material things. They have a name, and their integrity is at stake and therefore they cannot compromise.
“However, if there is any such misconduct, the person may be removed and the decision taken by him declared invalid,” said he.
A Lagos-based lawyer, Linus Iduh, is a proponent of using retired judges in the election tribunal. According to him, the nation can boast of having very vibrant, knowledgeable and healthy judges who are retired, but not tired.
His words: “They are still very relevant and should be appointed to handle election petitions. Nigeria has nothing to lose by appointing these retired judges because the judges are earning their salaries for life.”
Iduh stressed that most of the retired judges have a lot of integrity, adding that there is no pressure on them and nobody to fear. “They have no favour to grant to anybody and therefore they are in the best position to be appointed or given the assignment in the election tribunal.”
Iduh said: “These are judges that have retired with integrity. These are old men. They are not young men struggling or looking for fast money. They do not have that orientation or mentality. I do not believe that they will compromise their conscience.”
He revealed that by the time the sitting judges in all the divisions are drafted into the tribunal for six months or one year, the workload in their courts will suffer. “The entire system of civil and criminal litigation will grind to a halt.”
Iduh refused to agree with the suggestion that retired judges could be influenced by the politicians because, according to him, “these retired judges have their conscience and some of them have always lived to fight over their names”.
However, another Lagos lawyer, Chijike Jakponna, disagreed entirely with appointment of either the serving or retired judges into the election tribunal. He preferred practising lawyers to be given the assignment, instead of people from the bench.
“Among members of the bar, there are old lawyers that can handle election petitions, and lawyers will not compromise their conscience. The lawyers want to make a change of governance.
“It is not the question of changing the person you like. This time, we want to have a change in policy that will favour lawyers,” he said.
He posited that the retired judges are in the same clique with each other and the politicians; hence there is every tendency that they will dance to the tune of the favoured politicians.
“I do not acknowledge the drafting of old judges to the tribunal,” he added.
Whoever that is selected to serve in the election tribunal, whether serving or retired judges, should do the job with forthrightness and should not allow the episode that caused the unceremonious retirement of the former president of Court of Appeal, Justice Ayo Salami (rtd.), to repeat itself.
