The Supreme Court after Karibi

The Supreme Court after Karibi-Whyte

MR. Justice Adolphus Godwin Karibi-Whyte made history last month as the first person to remain on the Supreme Court of Nigeria until the age of 70. The experiment in keeping justices longer on the high bench, introduced, somewhat questionably, by Gen. Abacha in the wake of the paralysis of the Supreme Court in the Abiola case, could hardly have anticipated a more befitting testimonial. Three decades ago, Gen. Gowon decreed an ad hominem extension of the tenure of Chief Justice Ademola by two years. The present scheme is thus more ambitious. Why, one is almost now tempted (but not quite) to ask, aren't the justices allowed to stay even longer on the court. After all, even within the Commonwealth, Canada, for example, Supreme Court justices retire compulsorily at 75. And in the United States, where federal judges have life tenure, Oliver Wendell Holmes left the Supreme Court only when he was almost 91! Indeed, at roughly the present age of Justice Karibi-Whyte, the very eminent American judge, Billings Learned Hand still mused, "Oh, wouldn't it be wonderful if I got to the Supreme Court." He never made it. Hand was no ordinary judge. He was widely acclaimed as one of the quartet of America's greatest judges along with Holmes, Brandeis, and Cardozo, except that these other three served on the Supreme Court. Who in the Supreme Court was the "greatest living American Jurist?" Justice Benjamin Cardozo was once asked. Pointedly referring to Hand, he replied, "The greatest living American jurist isn't on the Supreme Court."

Justice Karibi-Whyte is no ordinary judge either. When he was called to the bar in 1961 no one could have anticipated that he was on the path to a highly successful judicial career. Indeed he seemed to have walked away from that direction at the very outset, for his preference was the ivory tower. By 1960 he had completed the LL.B. degree at the University of Hull, England. After taking the following year off to do the bar, he returned for graduate studies at the University of London. Upon the completion of the LL.M. degree in 1962, he took up a research position with the School of Oriental and African Studies. He joined the University of Lagos in 1965 as lecturer in the Faculty of Law.

I have only met Mr. Justice Karibi-Whyte on two occasions. The most recent was half a decade ago in the course of his daughter's wedding, where I was honoured to be best man. Some years earlier, I was present when he delivered the Idigbe Memorial Lecture at the University of Benin, in the trail of two of his illustrious brethren, Justice Eso and Oputa. The subject of the lecture was reform of the criminal law. Years earlier, as chairman of the Committee for Reform and Unification of Criminal Laws and Procedure Codes in Nigeria, his name could have forever been linked with a monumental project to reform our criminal law, long since apparently abandoned by the Federal Government. Hardly anything is heard nowadays of the report and recommendations, and unfortunately, with the recent movement towards Sharia penal law in northern Nigeria, the unification of the criminal law has become more illusory today than ever. In southern Nigeria, as in the north, the 19th century framework of the system of the criminal law has long cried out for a reformer. For so long the situation has been nothing short of a crisis.

This crisis, we guess, must indeed be personally troubling for Justice Karibi-Whyte. To put it plainly, the criminal law is his passion. While teaching at the University of Lagos, he embarked on a doctoral in the criminal law. Awarded the degree in 1971, his dissertation was a definitive contribution to the subject. By the time it appeared in print, The History and Sources of Nigerian Criminal Law established Karibi-Whyte firmly alongside Prof. Cyprian Okonkwo and the late Dr. Akinola Aguda in the ranks of true greats in Nigerian criminal law. It is almost ironic that as a judge, the most significant, and potentially the most enduring exposition by Justice Karibi-Whyte of the principles of criminal responsibility was outside Nigeria. On November 17, 1993 he took the oath of office as a judge of the UN International Criminal Tribunal for the former Yugoslavia and was assigned to preside over one of the two three-member Trial Chambers. The judgment in Celebici case handed down by his Chamber exactly five years later is an outstanding contribution to the development of international criminal law.

How did an academic come upon a judicial career in the first place? Precisely when he was just establishing for himself a very promising academic career, Karibi-Whyte chose to switch. By 1970 he was already senior lecturer and almost completing the doctorate. The following year, he moved to his native Rivers State to head the Law Reporting and Research department of the State Ministry of Justice. Perhaps it was at this point he started considering a judicial career, we do not know that for sure. At the beginning of the 1970s, a seat on the Supreme Court was not necessarily the most attractive career aspiration for an ambitious judge. Only a few years hitherto, it was definitely more prestigious to head the judiciary of a state. Indeed some of the most eminent justices of the Supreme Court ever (Jibowu, Mbanefo, Taylor, Idigbe and Madarikan) made the smart career move from the court to the senior position in state judiciary. Even in the 1970s, Justice Buba Ardo preferred chief judgeship of Gongola State to his seat on the Supreme Court. But by the 1980s all this had changed. There was no longer any doubt that the Supreme Court was the pinnacle of any judicial career.

Justice Karibi-Whyte's judicial career began humbly enough with the High Court bench. He was appointed to the Federal High Court in 1976 (then Federal Revenue Court). Although his tenure was short, he was soon to author the leading working on the law and practice of that court. His academic training served him very well, and it was clear that he had very quickly demonstrated an impressive capacity for more sophisticated judicial business. He moved on to the nascent Court of Appeal in 1980, and from thence the Supreme Court in another four years. He was 52.

Only once previously had an appointment to the Supreme Court been made from the Court of Appeal (Chief Justice Uwais, five years earlier). But on the same day in July 1984 three appointments were made from the Court of Appeal. This was remarkable for more than sheer number. It had been only eight years since Karibi-Whyte embarked on a judicial career. His fellow appointees had been on the bench significantly longer. Justices Kazeem and Coker were appointed to the High Court in 1967 and 1972 respectively. The 1984 appointments signalled a new direction in Supreme Court recruitment. Henceforth appointment from the Court of Appeal was increasingly the rule. Of the 29 appointments made since 1984 over 80 per cent have been from there, and there has been only one exception of the 13 appointments in the last 10 years.

A history of the Supreme Court during the time of Justice Karibi-Whyte remains to be written. (Prof. Sagay has already examined milestones in the early part of this era.) A definitive biography of Karibi-Whyte's court years is highly deserving. There is no doubt that, in history as well as biography, he will be mentioned as one of the leading justices during this period. Even so, his impact on the court would almost certainly have been much greater were it not for prolonged absences to take up assignments at the Civil Disturbances Special Tribunal, the 1995 Constitutional Conference, and the International Criminal Tribunal respectively.

To properly appreciate Justice Karibi-Whyte's place in the history of the Supreme Court we must situate him in the institutional framework of Supreme Court decision-making. Positivistic Formal Style decision-making and a marked reluctance to take on any significant role in public policy-making have characterized the outlook of the court from inception. Every student knows that one is unlikely to find any treatment of the court in studies on Nigerian government and politics. J.P. Mackintosh's Nigerian Government and Politics actually shows that the Supreme Court of the 1960s at least was clearly unable to find an independent role in government for itself. The period since 1984 coincides with the great wave of democratisation in Africa and elsewhere in the world. An almost inevitable fallout of this is that supreme/constitutional courts have almost everywhere become a primary player in public policy-making, especially concerning human rights. South Africa, Zimbabwe, Namibia and Botswana are Africa's leading examples.

Writing 25 years ago, Prof. Nwabueze suggested that the reason why judgments are often devoid of insight and of intellectual stimulation is the poor intellectual quality of the bench. When Justice Karibi-Whyte was appointed in 1984, there had been no scholar of considerable eminence on the court since the short tenure of Chief Justice T.O. Elias almost a decade earlier. But why has the Supreme Court been unable to evolve even the beginnings of a scholarly tradition given the relatively long tenure of Karibi-Whyte and a number of subsequent interesting appointments? Perhaps this has something to do with the institutional character of the court. Unlike the leading Supreme Courts in the world today, it has very little control of its docket, as a result of the very extensive room covered by appeals as of right. Thus it is saddled by routine litigation and re-litigation. The court was probably never envisaged as a major player in public policy-making any way. The only formal study on the basis of which the creation of the court was considered at the 1953-1954 Constitutional Conference was the very brief report of the Rt. Hon. Sidney Abrahams' Committee on the Administration of Justice. It is not surprising therefore that at the international seminar on constitutional problems of federalism in Nigeria in August 1960 participants were divided on the appropriate role of the Nigerian judiciary in government. It is significant though that Lionel Brett, a justice of the Supreme Court, said that in cases involving fundamental rights, in considering what is "reasonably justifiable in a democratic society," the role of the courts is to preserve certain standards, not to dictate policy! The Nigerian bill of rights (fundamental human rights provisions of the constitution) is not only one of the earliest in the Commonwealth but the most influential model in the history of the constitutionalisation of bills of rights in Africa and elsewhere in the Commonwealth. The irony is that neo-Nigerian bills of rights have been a very productive platform for policy intervention by courts elsewhere.

The Udoji Public Service Commission Report in the 1970s made it clear that it was unwise to continue to saddle the Supreme Court with routine adjudication. An intermediate court of appeal was called for to take on much of this load. Whether or not the existing Supreme Court should be down graded to an intermediate appeal court, as the commission recommended, or not it was clear that, except by leave, the proposed intermediate court would be the final court for many purposes. Decree 42 of 1976 constitutionalised this structure, limiting appeals as of right to the Supreme Court from a decision of the Court of Appeal to only four heads (plus an omnibus head). Regrettably, as the Chief Justice lamented the other day, this was undone by the Constitution of 1979, and has been so ever since.

Discretionary power to select its docket must be restored to the Supreme Court urgently. Appeals as of right must be severely minimised, if not eliminated. Apart from freeing up judicial time wasted on the routine, it enables the court to work out a sense of direction for itself by addressing only cases raising questions, whether involving issues of law or of mixed law and fact, of public importance, which in the opinion of the Supreme Court ought to be submitted to the court for decision. As a result of this, issues for appeal will be discretely selected by litigants according to the strategy to be deployed. Thus we are likely to find human rights issues as the basis of most criminal appeals. That in itself would be highly significant as human rights cases are today only a fraction of the docket of the court. What is important is that the court becomes free to select what it considers the most important cases according to the issues to be determined. Simply being dissatisfied with the outcome of an appeal at the Court of Appeal would then no longer be the primary motivation for further appeal to the Supreme Court but the likelihood of the Supreme Court hearing it. Every year, for example, over seven thousand cases are filed before the United States Supreme Court. The court selects only about 100 (less than two per cent) for hearing. In Canada only 17 of the 659 cases (2.5 per cent) filed at the Supreme Court in 2000 were appeal as of right, the remainder being applications for leave to appeal. The annual average of leave applications granted is about 15 per cent.

And no time is better for reform of the court than the present, when very important issues of national policy are increasing pressure on the courts for resolution. It is not good enough for the Supreme Court to share with the Court of Appeal the exercise of the discretion in choosing its docket. The power must be exclusive to the Supreme Court. Greater attention to policy must be informed by credible research. The justices cannot be expected to do this alone. Research assistants, or law clerks, as they are called in North America, drawn from brilliant young lawyers would have to be assigned to each justice for terms of one or two years.

A number of institutional changes must respond to the new vision of the Supreme Court. In the first place, the court must liberalise judicial access in public law adjudication. There should no longer be any room any more for strict standing and other restrictive judicial practices. Also, there is no sense in the present practice of a string of extensive "concurring" judgments that, in many cases, annoyingly recite the same facts and rehash the same analysis as the supposedly lead judgment. Even with the usual courtesy, "I accept the judgment just read by my learned brother. I have only a few words of my own to add..." there is always the danger of ending up with a mosaic, thereby undermining the possibility of a common ratio decidendi and weakening the collegial face of the court. Inputs should be made at the judicial conference, after the case has been argued, or when the justice assigned to write a judgment for the court circulates a draft. Any disagreement at this stage may call for a dissenting opinion, singly or jointly, but not a "concurring" opinion except where truly different reasons are being proffered for the position of the court. Secondly, to enhance the public and professional image of speaking as a single court, the court should occasionally, perhaps more often than not, sit en banc, with its full complement of 16 judges. (An odd number is convenient, not critical.) There is no reason why not. The constitutional stipulation of five and seven justices respectively for the business of the court is actually intended as a minimum number, or quorum. Surely there is enough sitting space for 16 during ceremonial sessions. Nor is there any justifiable fear that this would adversely affect the number of cases the court can dispose of annually. The U.S. and, nowadays, the Canadian Supreme Courts sit en banc and yet have roughly the same annual output as the Nigerian Supreme Court. Indeed, since they have only nine justices each, per capita output significantly exceed ours.

Who replaces Justice Karibi-White? No doubt, there is no shortage of very eligible candidates. According to the extant recruitment regime, the replacement would almost certainly be picked from the Court of Appeal. But why not a woman? There are certainly enough senior women justices in the Court of Appeal, if that was the only issue. But there is a greater principle at stake. For over 30 years women have been appointed judges in Nigeria. It is almost a surprise that none has yet been considered for the Supreme Court, especially as 34 appointments have been made to the court in the last 25 years. There can hardly be any justification today, allowing geo-political considerations, why the emergence of women in the highest court in the land could be delayed any further.

Justice Adolphus Godwin Karibi-White, GCON, scholar and law reformer should have no difficulty in finding a secure place in the annals of the Supreme Court. He was part of the team that made up what Prof. Sagay has called the court in its golden years. But as the curtains are about to fall on the first half-century, it can no longer be denied that the court is in dire need of structural reform. What is needed may not necessarily be as drastic as the creation of a new Supreme Court (in spite of the very able critique of Prof. Kasunmu and his team) or of a separate constitutional chamber within the court, as Prof. Nwabueze suggested several years ago. But reform there must.

The passing of the tenure of Mr. Justice Karibi-Whyte could then truly become the close of an era.

TO properly appreciate Justice Karibi-Whyte's place in the history of the Supreme Court we must situate him in the institutional framework of Supreme Court decision-making. Positivistic Formal Style decision-making and a marked reluctance to take on any significant role in public policy-making have characterized the outlook of the court from inception. Every student knows that one is unlikely to find any treatment of the court in studies on Nigerian government and politics. J.P. Mackintosh's Nigerian Government and Politics actually shows that the Supreme Court of the 1960s at least was clearly unable to find an independent role in government for itself. The period since 1984 coincides with the great wave of democratisation in Africa and elsewhere in the world. An almost inevitable fallout of this is that supreme/constitutional courts have almost everywhere become a primary player in public policy-making, especially concerning human rights. South Africa, Zimbabwe, Namibia and Botswana are Africa's leading examples.

Justice Adolphus Godwin Karibi-Whyte, GCON, scholar and law reformer should have no difficulty in finding a secure place in the annals of the Supreme Court. He was part of the team that made up what Prof. Sagay has called the court in its golden years. But as the curtains are about to fall on the first half-century, it can no longer be denied that the court is in dire need of structural reform. What is needed may not necessarily be as drastic as the creation of a new Supreme Court (in spite of the very able critique of Prof. Kasunmu and his team) or of a separate constitutional chamber within the court, as Prof. Nwabueze suggested several years ago. But reform there must.

The passing of the tenure of Mr. Justice Karibi-Whyte could then truly become the close of an era.

Feb 2002