By Tunde Olofintila
Frontline legal icon and founder of Afe Babalola University, Ado-Ekiti (ABUAD), Ekiti State, Aare Afe Babalola, OFR, CON, SAN, has advocated an urgent review of the country’s judicial system to ensure that the retirement age of justices of the Supreme Court goes beyond the present 70 years on the Bench.
Instead of the present 70 years retirement age of judicial officers, particularly those on the Supreme Court Bench, Babalola would like Nigeria to take a cue from other judicatures where the appointment of Supreme Court justices is a lifetime appointment, with no age limit for them to retire.
According to the legal colossus, Supreme Court justices in such judicatures stay on the Bench “oftentimes, they stay as long as they probably can. In fact, many die while in office. But for those who opt for retirement, the average age is 78.7 years. The average retirement age has grown to a whopping 103 years.”
The lifetime tenure of Supreme Court justices, in his view, will enable Nigeria to benefit from the wealth of wisdom, insight, experience, fairness and compassion of a jurist like Honorable Justice Bode Rhodes-Vivour, who bowed out of the Supreme Court on Monday, March 22, 2021, when he clocked 70, after 27 years of meritorious service on the various rungs of the Nigerian judicial ladder.
On the importance of the position of the Chief Justice of Nigeria, Babalola believes that the sacredness and the high calling of the office combine to make it more imperative that appointment to the office of the CJN should not be based on promotion, but strictly on merit, stressing that: “I know from experience that the best judges are those who have been in active litigation, who have interacted with clients, who have drafted claims and pleadings and who have addressed legal issues at different levels of the courts. This is why, in other climes, judges are chosen from seasoned legal practitioners.
“I recall the case of late Hon. Justice Teslim Olawale Elias, SAN. He was Attorney-General of the Federation when he was a professor at the University of Lagos and was invited to the Supreme Court, where he eventually became the CJN and, later, president, International Court of Justice.”
Speaking as the chairman at a recent virtual book launch in honour of the Justice Rhodes-Vivour, Babalola frowned at the present situation where strong and mentally alert judicial officers are eased out of the Bench on account of a constitutional retirement age of 70 when their services and experience are still most needed.
His words: “I want to seize this opportunity to plead that we should review our justice system, particularly the age of retirement of Supreme Court judges. Experience has shown that a person becomes wiser and more experienced as he advances in age. Under our judicial system today, Justice Olabode Rhodes-Vivour, JSC (rtd), is retiring at the young age of 70 when he has not shown any sign of physical weakness and when Nigeria would have benefitted more from his wealth of wisdom, insight and experience.
“A brief look at other countries shows that appointment to the Supreme Court is a lifetime appointment. There is no age limit for a justice of the Supreme Court to retire. Oftentimes, they stay as long as they probably can. In fact, many die while in office. But those who opt for retirement, the average age is 78.7 years. The average retirement age has grown a whopping 103 years.”
Enumerating the sterling qualities inherent in Justice Rhodes-Vivour, Babalola recalled: “I know Hon. Justice Rhodes Vivour (rtd). I have seen him at work, I have interacted with him in the court. He is a genial, decent, and disciplined person. He is a judge with unquestionable integrity, character, industry and dignity. A professional to the core, the legal colossus is a fervent believer in the rule of law. The professional way he conducts himself both at the Bar, on the Bench and outside the Bar and the Bench will ever remain fresh in our memory.”
He continued: “Today, as we proceed to launch three books in honour of Hon. Justice Olabode Rhodes-Vivour Jsc (rtd), CFR, I have a personal question to ask him. The question is simple. My respected Jurist, are you fulfilled as you bow out from the Supreme Court at 70 years? I know you would answer: ‘I am fulfilled.’ But if we ask lawyers to answer the question, the answer would be, ‘No, he is not fulfilled.’
The question is why is he not fulfilled? Because we believe that Justice Rhodes Vivour (rtd) is a very strong and able young man. He doesn’t look 70. We believe that he should remain on the Bench until he becomes Chief Justice of Nigeria.
“Hon. Justice Olabode Rhodes-Vivour spent 11 years as a High Court judge, five years as a justice of the Court of Appeal and 11 years as a Supreme Court Justice. He should be commended because, throughout his 27 years on the Bench, he served without any blemish. More importantly and remarkably too, he was never absent from work for a single day either due to illness or any other reason.
“While on the Bench, he was known for his fairness, impartiality and compassion. He wrote many lead judgments. But on this occasion, I wish to refer to two landmark cases. Ukeje v. Ukeje (2014), 11 NWLR Pt. 1418, 384 at 408 where he declared that the Igbo Customary Law, which disentitles a female child from partaking in the sharing of the deceased father’s estate, was illegal, discriminatory and in breach of fundamental human right. And also, the case of JES Investment Ltd v. Brawal Lere Ltd & Ors (2010), 18 NWLR (Pt. 1225) 495 at 544 on the need to reform limitation laws in Nigeria and for judges to be conferred with discretion to extend limitation periods for some actions.”
Veering into a familiar terrain where he has been a frontline crusader as far back as 2001, Babalola averred that the lop-sidedness in appointments into the office of the CJN and other ills inherent in the 1999 Constitution bequeathed to Nigerians by the military and christened a people’s constitution can only be corrected by way of a new constitution.
The crusade of restructuring and the need for a new constitution, which started in November 2001 when the descendants of His Majesty, King Abbi Amachree IV, the Amanyanbo of Kalabari, gathered together in Port Harcourt to celebrate the first memorial lecture, where Babalola delivered the first memorial lecture, titled “Nigeria in Search of a Nation,” has continued in Babalola’s weekly columns in The Vanguard and the Nigerian Tribune newspapers.
Babalola wondered why it was difficult for the military to go back to the 1963 constitution, which it merely suspended (but did not abolish) when it took over the reins of government on January 5, 1966, instead of curiously foisting on Nigerians the 1999 Constitution when it wanted to hand over power to a democratically elected government in 1999.
Driving his point home, he said: “We truly need restructuring in this country today and that will assist us in many diverse ways. It will enable us have a truly federal constitution as a result of which there would be a change in the mode of election and the type of people we would elect to govern us. It would ensure that we have part-time legislation, reduce the huge salaries currently being earned by our legislators in favour of sitting allowances. It will reduce cost of governance. It will ensure we run our elections at cheaper rates, while women representation in governance will be higher.”
He added: “Our Constitution is the greatest problem of Nigeria, a country of nations, today. The operation of the Constitution is expensive, with its attendant over-concentration of power at the centre, thereby rendering the states and local governments totally impotent, unlike what obtained under the parliamentary constitutions of 1960 and 1963.
“I say with emphasis that the only change that can change the country for the better and pave way for the enhancement of One Nigeria is the change that changes the structure of Nigeria. It is that change that will make politics less attractive, make each state to develop at its own pace and do away with all shades and shapes of criminality. It is restructuring that would enable the component parts of the country to develop their resources, provide employment, eradicate poverty and make individuals to become true Nigerians.
“Above all, it is restructuring that would enable each state to curb insecurity, unemployment, poverty, defective justice system and do away with failed leaders.”
In conclusion, Babalola congratulated Honorable Justice Rhodes-Vivour, a firm believer in the full tradition and nobility of the legal profesion, for his unwavering legacy of discipline, courtesy, decency, eloquence and respect, which have endeared him to many at the Bar, the Bench and the public at large.
•Olofintila writes in from Ado-Ekiti