Swami Kesavananda Bharati was a senior Hindu monk who became an unlikely icon of constitutional law and a provocateur for judicial independence. Better known by the honorific, “His Holiness”, Kesavananda was by 1970 the senior pontiff of a Hindu Monastery in Edneer, Kasaragod District of Kerala State in south-western India.
The Kerala Land Reforms (Amendment) Act of 1969, which came into force at the beginning of January 1970, empowered the state government to restrict the management of lands belonging to Kesavananda’s monastery.
To the senior Hindu monk, this was not a matter for prayer or fasting. In February 1970, Kesavananda sued. Arguments began on 31 October 1972, ending on 23 March 1973, before a full panel of 13 Justices of the Supreme Court of India.
In its judgment, a closely split court decided by a majority of 7-6 in favour of His Holiness, striking down the measures by Kerala State. The majority panel included three of the most senior Justices of the Supreme Court, led by then Chief Justice of India (CJI), Sarv Mittra Sikri.
The government of Prime Minister Indira Gandhi was incandescent. Judgment day, 24 April 1973, was the penultimate day in office of Sarv Sikri as CJI. As Chief Justice Sikri retreated from the Chambers of the CJI the next day, Prime Minister Indira Gandhi arrived at the presidential palace bearing a cabinet memorandum for his replacement.
On 26 April 1973, President Varahagiri Giri of India appointed Ajit Nath Ray the CJI. He was the senior judge in dissent in the judgment in Kesavananda Bharati’s case. At the time of his appointment as CJI, Ajit Ray was junior to three Justices of the Supreme Court of India, who were forced to resign.
The High Court of Delhi noted that at the time, “the established practice” was to appoint “the senior-most judge of the Supreme Court as the Chief Justice of India.” Instead of the National Judicial Appointments Commission as required by the Constitution, the Delhi High Court continued, “the decision to recommend the appointment of Justice A. N. Ray was taken by the Political Affairs Committee of the Cabinet, which has no standing in the eyes of law.”
Indira Gandhi’s government did not hide its design in choosing Ajit Ray as CJI. Five days after his appointment, her Minister of Steel and Mines, Mohan Kumaramangalam, disclosed to India’s Lok Sabha that in choosing him, the government settled for someone who would “help in ending confrontation between the judiciary and Parliament; one who would appreciate the winds of change sweeping the country and one who will help us in Court.”
Former Chief Justice and Acting President of India, Mohammad Hidayatullah, said of the decision that its design was “not creating ‘forward-looking judges’ but the ‘judges looking forward’ to the plumes of the office of Chief Justice.” It triggered twin constitutional and institutional crises in India, which were settled after nearly a quarter of a century with the restoration of the convention of seniority.
There are three good reasons for this convention. First, it precludes the process from being hostage to opacity, subjectivity, or extraneous considerations. Second, it equally precludes the process from being hijacked by politicians for partisan ends. Third, it ensures that a serving judge is not denied access to preferment based on a smear against which he or she is not afforded a credible defence.
Unlike in India, where judicial seniority emerged early as a dispositive factor in the appointment of the Chiefs of court systems, that was not always the case in Nigeria. The consideration of seniority in the appointment of the Chief Justice only emerged in 1979 with the appointment of Atanda Fatayi Williams as the fourth Chief Justice of post-colonial Nigeria. At the state level, politics has progressively diminished the office of the Chief Judge in both esteem and authority. At independence, Chief Justices (as they were then called) of the various regional courts also sat on the Federal Supreme Court. At the time, they were in fact second only to the Chief Justice in the judicial hierarchy.
Justices of the Supreme Court routinely stepped down to serve as Chiefs at the state level. John Idowu Conrad Taylor, for instance, stepped down from the Supreme Court in 1964 to become Chief Justice of the Federal Territory of Lagos. Mohammadu Buba Ardo did the same in 1976, stepping down from the Supreme Court to become Chief Judge of the newly created Gongola State.
All this was to change under the regime of Muhammadu Buhari. Keen to break judicial opposition to the casualization of judges in military tribunals in 1984, the regime sought to advance loyalists to senior judicial sinecures.
In Anambra State, the regime appointed Alison Madueke, a Navy Captain, as military governor. The Chief Judge at the time was Emmanuel Araka, an old-school judge. When the new military governor summoned him, Araka was reluctant. When he declined a second summons, Alison Madueke, as military governor, fired Araka summarily.
The politicians who took office in 1999 now appear to believe that they have a right to a Chief Judge in their back pockets. When, for instance, former governor Rotimi Amaechi, could not get his choice as Chief Judge of Rivers State in 2013, he ensured that the office was vacant until his departure in 2015.
The latest theatre for the casualization of the State Chief Judge is Imo State. The state has not had a Chief Judge for nearly 20 months since the National Judicial Council (NJC) sacked its last Chief Judge for age falsification in November 2024. In April 2025, the Council torpedoed the design of the Imo State governor to supersede the three most senior judges in the state and appoint the fourth as Acting Chief Judge.
With evident reluctance, the state governor acceded to the directive of the NJC to appoint the most senior judge in the state to act as Chief Judge. Appointed in 1993, Ijeoma Ogugua has served as a judge of the High Court of Imo State for 33 years. At least twice, she has been passed over for the office of Chief Judge. The judge currently next to her in seniority on the bench of the High Court of Imo State is 11 years her junior.
Yet, that is the person whom the State Governor, Hope Uzodinma and the State Judicial Service Commission (JSC) would like to see preferred to the office.
In an announcement dated 5 June 2026, the JSC invited public feedback on a shortlist of two judges. It omitted the Acting Chief Judge. The JSC claimed to have done this under the 2023 amendment of the applicable Procedural Rules of the NJC. But those rules apply to the appointment of new judges, not to that of a Chief Judge.
In reality, the Imo State JSC asserts a power it does not have. The Constitution confines the JSC to the role of rendering “advice” to the NJC on “suitable persons for nomination” to the office of state Chief Judge. In other words, it is a glorified commentator. The power to recommend a judge for appointment belongs to the NJC, which alone can do a shortlist.
Quite clearly, the so-called shortlist of the Imo State JSC is designed to eliminate the most senior judge in the state from consideration. This design has been accompanied by serious allegations that some senior members of the legal profession in the state, whose views were registered, “were alleged to have been either influenced, appreciated or coerced with the envelopes.”
When he wrote to the NJC early in 2025 for permission to appoint his lackey as Acting Chief Judge, Governor Uzodinma argued that “the three most senior Judges (were) not appointable”, and levied a specious smear against, especially the most senior judge in the State. But the governor is unwilling to have any of his allegations investigated on record by the NJC.
The Acting Chief Judge whom Governor Uzodinma wishes to preclude from consideration does not have an adverse disciplinary record with the NJC. In this situation, the Chief Justice of Nigeria has an opportunity to define the applicable conventions. It is not her job to grant the governor a Chief Judge whom he can own.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
