Attaining Legislative Autonomy And Judicial Independence By Ebun-Olu Adegboruwa, Esq.

There seems to be a silent ‘revolution’ going on in the land,
which many have not noticed. There is a particularly interesting
and commendable development of the Muhammadu Buhari government that
we are not talking about as we should.

It is the 4th Alteration to the Constitution of the Federal
Republic of Nigeria. For sometime now, there has been nationwide
clamour for autonomy for the State Houses of Assembly and the
judiciary of the States, from the stranglehold of the executive arm
of government. Cases were filed in court, in one instance leading
to an epochal judgment in the one filed by human rights activist
and former President of the Nigerian Bar Association, Dr. Olisa
Agbakoba. But the executive only obeyed the said judgment in
breach, leading to a nationwide strike by the Judiciary Staff Union
of Nigeria, JUSUN.

As way of overcoming this monumental constitutional challenge, a
Bill was passed by the National Assembly, granting financial
autonomy to judiciary and the houses of assembly of the States, in
2017. In June 2018, the President assented to the said Bill and it
became part of the laws of the Federal Republic of Nigeria. Even
after that, the executive would not bulge, especially the powerful
governors. The President then decided to set up a 22-man Committee
known as The Presidential Implementation Committee on the Autonomy
of State Legislature and Judiciary, with the Honourable
Attorney-General of the Federation as the Chairman and Senator Ita
Enang, as the Secretary. The mandate of the Committee was to ensure
the full implementation of the 4th Alteration to the Constitution
and thus free these important sectors of our democratic experiment,
from the stranglehold of executive arm.

The primary responsibility of the legislature under the
Constitution is that of making law for the peace, order and good
governance of Nigeria. It may clash with the executive at times, in
the course of its oversight functions and during public hearings
meant to prevent corruption and waste. The interface between the
executive and the legislature also comes to fore during hearings
for the confirmation of nominees for certain offices. In the recent
past, this has generated huge controversies which actually
escalated to a boiling point, at a time. Thus, it is expected that
the executive should be in tandem with the legislature, for smooth
administration and efficiency. But this was not so in the life of
the outgoing regime, as a noticeable cold war had ballooned beyond
control, between Aso Villa and the Green and Red Chambers. The
National Assembly was able to rescue itself from the grip of the
executive by passing a law creating the National Assembly Service
Commission to run its internal affairs and also to draw its budget
directly from the Consolidated Revenue Fund. That has not been the
case with the houses of assembly of the various States however,
leaving them under the direction and control of the executive in
the States, that is the governors. So that in most cases, the state
legislative houses are more of an appendage of the government
secretariat, to the detriment of the people and our democratic
experience. But this administration decided to put an end to
this.

The judiciary on the other hand, is empowered by the
Constitution to entertain and determine disputes between persons
and persons or between persons and government or between
governments and governments. The conflict margin is more on the
executive-judiciary angle because of the obvious and excessive
impunity of the executive arm, especially the law enforcement
agencies. The general thinking of most governors is to cage the
courts and starve the judiciary of funds, as a means of rendering
it ineffective so that lawlessness can thrive unchallenged or where
challenged, unchecked. Most governors are therefore not comfortable
with a viable and independent judiciary, which they dread as a
veritable tool in the hands of the people, to challenge and
overturn all manner of excesses. Through the office of the
Attorney-General and Commissioner for Justice of the various
States, the executive governors have perfected the style of holding
the judiciary captive, starving it of needed fund and
infrastructure. So, in most cases, the judiciary is forced to go
begging caps in hand, for funding. And assuredly as we all know it,
he who pays the piper dictates the tune. This was the very ugly
scenario before the ‘revolution’ of the 4th Alteration to the
Constitution, seeking to free the legislature and the judiciary,
from the very firm grip of the executive.

Why should it be tagged a revolution? By the bold and innovative
provisions of the Financial Autonomy of State Legislatures and
State Judiciaries (Fourth Alteration, No.4) Act of 2018, the road
was cleared for the funding of the Houses of Assembly and Judiciary
of the States, directly from the Consolidated Revenue Fund of the
States. The Act then amended the existing section 121 (3) of the
Constitution by stating that “any amount standing to the credit of
the House of Assembly of the State and the Judiciary, in the
Consolidated Revenue Fund of the State shall be paid directly to
the said bodies respectively; in the case of the judiciary, such
amount shall be paid directly to the heads of the courts
concerned.” It is indeed revolutionary, for a sitting President to
agree to grant full autonomy and independence to the other two arms
of government. And the President didn’t stop there but proceeded,
as a mark of demonstration of his commitment to this bold
initiative, to set up The Presidential Implementation Committee,
for the enforcement of the provisions of the 4th Alteration Act,
comprising mostly of seasoned professionals and other
stakeholders., thereby throwing the gauntlet back to the people, to
grab this golden opportunity to free these two critical partners of
democratic progress.

The Presidential Implementation Committee on Autonomy of State
Legislature and Judiciary (PICASOLEJ) was consequently inaugurated
and charged to kick the ball rolling. It held a two-day retreat a
few days ago in Abuja and came up with a 12-point communique, some
of the highpoints of which are as follows:

* the 4th Alteration Act has been observed more in the breach
than in compliance.

* there are various levels of minimal compliance in various
States but all fall short of the expected compliance, as budget
performance across 36 States of the federation show that while the
least allocations to state judiciary in the past three years was
0.6 per cent of the state budgets, the entire allocation was 4.89
per cent.

* the governors as heads of the Executive Arm of Government
should begin full implementation of the financial autonomy granted
the legislature and the judiciary.

* they should equally adopt the budgeting model operating at the
federal level where the sum due to the judiciary and the
legislature are captured as first line charge in the budget laid
before and passed by the Legislature.

* the budget proposal of the legislature and judiciary should be
defended before the relevant committees of the legislature.

* the total sum, both Capital and Recurrent, approved in the
Annual Budget of the state, should be released monthly on a
pro–rata basis by the Accountant General of the State, directly to
the heads of the legislatures and the judiciary, and heads of
Judicial Service Committee or Commission.

* the budgeted sum, Capital and Recurrent howsoever describe
released to the Judiciary to be spent by the Judiciary on the
projects, programmes and capital development of the Judiciary,
including recruitment and training of personnel. And so for the
Legislature.

* the current practice in some states where appropriated
recurrent expenditure due the judiciary and legislature in the
budget were released to the judiciary and legislature and the
capital components are warehoused in the Executive should be
abolished.

Many other resolutions were passed, including the one commending
the Nigerian Governors’ Forum, for its commitment to the
implementation of the 4th Alteration Act. This is critical because
it goes to the very root of the many problems associated with
effective justice administration and the seeming docility and
ineffectiveness of state legislatures. No matter the quantum of the
amount released, the judiciary now has the power to determine its
budget and spending, to prioritize its commitment level, all
targeted at delivering justice to the people. The same goes for the
State legislatures, to be more proactive, in deploying legislation
to address the myriad of problems plaquing our land, especially in
empowering the States to deliver durable infrastructure, to the
people, starting with electricity.

There is something missing in this ‘revolution’ however, as you
cannot give something with one hand and be withholding it with the
other. Judicial independence cannot be measured by funding alone,
but also in the willingness to obey and abide by all decisions and
orders of the courts. The integrity of the judiciary is better
achieved through willful obedience to the orders and directives of
the courts. In this regard, so long as Col Sambo Dasuki (Retd.)
remains in custody against several orders of court for his release
on bail, so long as judges are living under some mortal trepidation
of persecution on account of their decisions, then the judiciary
cannot be said to be independent, no matter the number of billions
of naira thrown at the courts. My charge to the Presidential
Committee is to seize the initiative of its peculiar mandate to get
the executive to agree to obey all lawful orders issued by the
courts and to desist from any form of harassment or intimidation of
judicial officers, however subtle it may come. When this is
achieved, then we can truly say that the judiciary is autonomous
and independent, and the ‘revolution’ can then become true and
real.

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