President Bola Ahmed Tinubu’s assent to the 1999 Constitution of Nigeria (Fifth Alteration Act, No. 37) in 2023, elongating the retirement age of lower court judges from 65 to 70 years, is praiseworthy. Since May 29, 1999, when the 1999 Constitution was signed into law, the retirement age of judges in the country has remained at 65.
However, by virtue of this new law being the first law signed by President Tinubu since he assumed office, the retirement age of lower court judges is now 70, bringing it at par with that of judges of the Court of Appeal and the Supreme Court.
Expectedly, the new law has been eliciting no small commentary among Nigerian lawyers, as well as the Nigerian public. While some appraise the law as progressive and an excellent piece of legislation which is long due, others criticize it as a retrogressive legislation capable of reducing opportunities for younger lawyers aspiring to become judges.
One reason why the law is commendable is that, with the alarming sudden deaths of many Nigerian judges, this is an auspicious time to appoint more judges as well as raise the retirement age of sitting judges. Just last Sunday, the cold hand of death snatched Supreme Court Justice, Hon. Chima Centus Nweze and Justice Peter Hoommuk Mallonga, a judge of the Federal High Court in Abuja.
This means that in one day, Nigeria lost two eminent Nigerian judges. The death of Supreme Court Justice Chima Nweze is particularly painful considering that the Supreme Court has been suffering from a depletion of Justices, and Justice Nweze was a judge of outstanding intelligence, expanding and expounding the law at the Supreme Court before his demise.
If the stock of judges in Nigeria is depleting, it is only reasonable and logical that the age of retirement of serving judges be extended to provide stability and continuity in the judiciary. Even though there may be potential drawbacks and challenges associated with raising the retirement age of judges, such as potential reduced opportunities for younger legal professionals and concerns about cognitive decline in older judges, raising the retirement age allows the judiciary to retain these seasoned professionals. This, in turn, can enhance the quality and consistency of judicial decisions.
More importantly, perhaps, unlike other professions, the life of the law is experience. Justice Oliver Wendell Holmes Jr. famously maintained that “the life of the law has not been logic: it has been experience.” Holmes’s statement suggests the retention of older judges. Older judges often possess valuable experience, wisdom, and institutional knowledge gained through years of service. With longer careers, judges have more time to handle cases, thus reducing case backlogs and improving the efficiency of the judicial system. This can lead to quicker resolutions for litigants and a more effective administration of justice.
The United Nations Basic Principles on the Independence of the Judiciary (1985) state: “The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions, and the age of retirement shall be adequately secured by law. Judges… shall have guaranteed tenure until the mandatory retirement age or the expiry of their term of office, where such exists. Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties.”
The International Bar Association’s Minimum Standards of Judicial Independence (1982) states: “Judicial appointments should generally be for life, subject to removal for cause and compulsory retirement at an age fixed by law at the date of appointment. The grounds for removal of judges shall be fixed by law and clearly defined. A judge shall not be subject to removal unless by reason of a criminal act or through gross or repeated neglect or physical or mental incapacity he/she has shown themselves manifestly unfit to hold the position of judge.”
In the United States, for instance, federal judges are appointed for life. Among the states in the United States with mandatory retirement ages for judges and justices, 70 or 77 is the most popular age. In fact, most judges in the United States are in active practice up to 80. In England, from which Nigeria borrowed its legal system, judges stay in service up till 70. The Lord Chief Justice and the Lord Chancellor can, by agreement, extend a sitting judge’s service beyond the age of 70, one year at a time, if they deem it to be in the “public interest.” Retired judges can also sit on an ad hoc basis to help meet an urgent “business need” until the age of 75.
Stability and continuity are key to the effective, efficient, and expeditious dispensation of substantial justice. The older a judge is in service, the more stable and predictable the judiciary becomes. Having a stable and experienced judiciary can provide consistency and predictability in legal interpretations and judgments over time. This contributes to a sense of confidence and trust in the legal system among the public and legal professionals.
Retaining experienced judges may prove cost-effective for the judicial system as it avoids the need to recruit and train new judges. Additionally, senior judges might command higher salaries, but this cost could be offset by the benefits of their experience and productivity. Raising the retirement age can help protect judicial independence by reducing the risk of judges feeling pressure to make career decisions based on the prospect of imminent retirement.
Much has been said and written about judiciary reforms in Nigeria, but unfortunately, there has been little or no action. Retaining older judges is the key to reaping dividends from these judicial reforms. With their experience, competence, and performance in office, older judges play a crucial role in implementing and adapting to legal reforms.
Keeping experienced judges on the bench ensures their ongoing contribution to the evolution and improvement of the legal system. However, judges who, for any reason, desire to retire anytime before the age for compulsory retirement, should be allowed to do so.
There is also a need to focus on balancing the ever-widening generational divide. Currently, there are many young judges in Nigeria with insufficient competence. These young judges clearly need the mentorship of their older counterparts to be adequately equipped for dispensing substantial justice.
A higher retirement age would aid in retaining older judges, enabling them to continue mentoring their younger peers. This, in turn, would bridge the gap between younger and older judges, fostering intergenerational collaboration and facilitating the transfer of knowledge between different generations of legal professionals.
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