By
Solomon Ukhuegbe
May 19, 2005
This year concludes the first half-century of the Supreme Court of Nigeria, and up till now it has been a men-only club. On Tuesday 10 May, the Senate of the National Assembly took the historic decision confirming the appointment of a woman to the Court. What remains to be seen is whether this development is simply a crowning personal career achievement for Justice Aloma Mariam Mukhtar or something more – a definite recognition of gender equity in Supreme Court recruitment. The prolonged neglect of gender diversity has in recent years become an increasing visible challenge to the Court's legitimacy. Indeed, only last year, Chief Justice Uwais felt it necessary to provide definite assurance that there would be a woman on the Court before his own exit next year ( Thisday, 16 Nov. 2004). He has delivered on that promise. The truth however is that this achievement would perhaps have come much earlier if gender equity was taken even half as seriously as geo-political equity ("federal character") in selecting candidates for the Court.
The arrogance of the gender insensitivity is evident, for example, in Justice Karibi-Whyte's reaction a few years ago to a question whether a woman should be appointed to fill the seat he was vacating in order "to redress the gender imbalance." "So what because there is no female Supreme Court judge? Why must there be?" he retorted. It "is not a gender issue…. Whether there is a man or a woman has nothing to do with the administration of justice. When a suitable female arrives, we will appoint." ( Thisday, 28 January 2002). It is clearly odd that with women today holding roughly a quarter of the nation's judgeships, going by information recently announced by the Chief Justice, presumably none suitable for our highest court had arrived hitherto. In contrast, when Canada appointed her first female Supreme Court justice, Bertha Wilson, in 1982, less than 10 per cent of federal appointed judges in that country were women. In 2003, only 17, or less than 4 per cent, of India's 514 judges were women. By that year, however, the sitting woman judge on the Supreme Court, Ruma Pal, was the third to serve. Lady Hale of Richmond has been one of United Kingdom's Lords of Appeal in Ordinary ("law lords") since January last year, even with less than a dozen female court of appeal and high court judges in that country. A former career academic, Mrs. Hale had been a judge for barely ten years at the time of her promotion to the judicial committee of the House of Lords.
The so-called merit-only recruitment is a fiction. At any rate, during the last thirty years, geo-political equity has been a prominent, if not the pre-eminent, element in Supreme Court recruiting. Even by the early 1970s, Professor Kasunmu acknowledged, in his still unsurpassed study of the Court, "it must be admitted that it is now becoming increasing difficult if not impossible to ignore the demand for better geographical balancing than in the past. Gone are the days when Lagos, the West and the East could boast of being the only areas that could provide men with the minimum constitutional qualifications for appointments to the Supreme Court." Ironically, it is in fact rigorous application of the federal character requirement rather than merit that may have delayed Justice Mukhtar's elevation. Five years ago, she was the second ranking justice of the Court of Appeal, next to Justice Musdapher (not counting the President of the Court, who is unlikely to desire a "promotion" to the Supreme Court). Since the retirement of Karibi-Whyte in 2002, Justice Musdapher as well as four lower-ranking members of the Court of Appeal have taken their seats in the Supreme Court. I do not suggest here that any of these appointments was not highly deserving. Indeed, seniority on the Court of Appeal is not necessarily the exclusive merit factor. But it seems clearly evident that these other appointments were at least compelled as much by geo-political equity as by merit. Nonetheless, it is just as curious that until now, "federal character" appeared to favour only men in Supreme Court recruitment! The paradox is that Nigerians (men!) at once regard federal character as the first principle of distributive justice, to which every other consideration must be subordinated, and yet consider gender equity contrary to good sense.
The present appointment is indeed great occasion to celebrate, as The Guardian (12 May 2005) points out. But we would not be celebrating for long unless the elevation of Mukhtar puts a woman on the exalted bench not just for ten years but as a permanent face on the Supreme Court. Is it vain to hope even now that not only are more women appointed to the Court in the near future but that there would become at least a permanent seat for women on the Court, just as there are at present, for example, South-South or South-West seats? This is certainly justified by present-day gender-related demographics of the legal profession and the higher bench in Nigeria. That is what would make the present, unquestionably historic, appointment truly ground breaking. Perhaps in the future, the Court could indeed even move beyond gender equity to gender balance. Take the example of Canada. While there was never a woman on the Canadian Supreme Court before 1982, they are now four of the nine judges of the court, and one of them has been the chief justice during the last five years. The most informed observers of the Canadian court speculate that a woman would likely fill the next vacant seat, thus making it the first national final court of appeal with a majority of women judges.
A very significant feature of the present set of appointments to the Supreme Court is the relative youthfulness of the candidates. The Court, it must be said, is the most geriatric institution in our polity. Its recent history shows that new appointees are typically at the twilight of the career. Even Justice P. Nwokedi record-setting seven-month tenure in 1991 cannot be treated as a complete aberration. Because turnover is high, only half a dozen current members of the Court, for example, have served for up to five years. In contrast, at the age of sixty Justice Mukhtar would, granted good health, enjoy twice as many years on the Court. Except for this, however, her profile is that of a typical candidate for the Supreme Court, primarily prolonged immersion in judicial work (28 years) and a prior career in government legal positions. This background arguably disposes the subject to formalist decision-making rather than practical reasoning. Thus, it is not expected that her role orientation, in Supreme Court decision-making, would be any different from that of other members of the Court. On the contrary, she is likely to blend very well. We have it on the authority of The Guardian that Justice Mukhtar's judgments at the Court of Appeal are frequented upheld by the Supreme Court. This record suggests that she is a faithful and competent technician rather than a visionary reform-minded legal innovator. A long career in the Court of Appeal makes her well adjusted to the strong institutional norm of consensus decision-making in the Supreme Court. Disagreement is minimal. Even a "great" dissenter, Justice Eso actually wrote only four dissenting opinions in the nearly five hundred cases he participated in during his twelve-year tenure. But that is a solid record given that Justice Obaseki wrote only two in six hundred and fifty cases over sixteen years!
Justice Mukhtar may bring very little that is new to the Supreme Court. But what could her presence portend for the Court? For one thing, men tend to put up their best behaviour when a lady is present. Even though some of the current Justices have worked with female colleagues at the Court of Appeal, the Supreme Court environment has been hermetically insulated from that experience for fifty years. It is difficult to anticipate all the behavioral and institutional adjustments that would take place in due course. The Court has to go through a learning process. Canada's Madame Justice Wilson recalls her initial experience of judges' conference in the Supreme Court of Canada. Judges retire into conference as soon as hearing of a case is completed. In accordance with protocol, as the most junior member of the Court, she was the last to enter the room. All the judges got up as soon as she came through the door, except Chief Justice Lamer. He remained seated, he later explained, because it was inappropriate to show traditional gallantry by standing to honour her as a woman. He meant, he said, to treat her as an equal colleague on the Court.
But there are a few things about the Court that even the presence of a woman is hardly going to change. The staple of the Justices shall continue to be land and criminal cases. In "practical terms," says Kasunmu, the Supreme Court "is essentially a court of criminal and land appeals"! How much of this stuff is useful work really? It is difficult to fathom the public good in allowing these cases to clutter the docket of the Supreme Court while it rarely has any opportunity to consider major issues of public policy. The Court has done more than its fair share to discourage public interest litigation. Secondly, considerable unproductive labour is expended by the Justices in writing non-dissenting individual judgments even where there is unanimity, as is often the case. It makes nonsense of supposedly collegial decision-making and, in particular, the practice of routinely, in every case, having someone assigned the responsibility of writing the "judgment of the court." The practice of writing individual judgments is pointless and costly with the Court several years in arrears in its work. When the Federal Supreme Court was founded, it followed the wise system of its institutional judgments practiced by its predecessor, the West African Court of Appeal, rather than writing separate judgments as practiced by British appellate courts. As a result of considerable pressure from the legal profession and a curious constitutional provision, first introduced in 1979, the Court switched its practice, and has been bleeding uninterruptedly since. Unless the Court is reformed soonest, we sadly envisage that most of Justice Mukhtar's labours on the Supreme Court would be dissipated through unceasingly repeating precisely the same task someone else is also repeating.
In the 1980s, American psychologist Carol Gilligan proposed an analytical framework and empirical foundations for the claim that there were fundamental differences in the manner in which males and females understand and resolve moral problems. Men tend to be rule-driven ('formalist") and abstract decision-makers. Women present a different voice, tending to contextual, de-emphasizing rights and rules and more attentive to preservation of relationships. The possibility of a "different" voice immediately re-energized speculation on the potential impact of decision-making by women judges, and for a while generated considerable attention in the legal academy. For example, the constitutional decision-making of Justice Sandra Day O'Connor, the first of two women appointed to the United States Supreme Court, was positively evaluated according to Gilligan's psychology. Justice O'Connor was however not impressed. "A wise old man and a wise old woman," she pointed out, "reach the same conclusion."