Judicial Financial Autonomy — A Way Forward For The Administration Of Justice In Nigeria (2)

By Ebun-Olu Adegboruwa SAN

It is well over a month that the Judiciary Staff Union of
Nigeria, JUSUN, embarked upon their industrial strike action to
press home their demand for financial autonomy and independence for
the judiciary.

I have also been informed that workers of the various houses of
assembly of the States are also on strike to demand for financial
autonomy for the legislature. It is gratifying that the various
levels of government have set up an implementation committee to
work with JUSUN for a mutual resolution. Such initiative must
necessarily carry along the Nigerian Bar Association (NBA) and the
National Judicial Council (NJC), who are major stakeholders in the
administration of justice in Nigeria. For good cause, lawyers
across the nation have demonstrated commendable solidarity with
JUSUN, though the strike action has affected lawyers in very
several ways, especially litigation lawyers. It is a necessary
sacrifice that we have all agreed to make for a better tomorrow.
Last week, I shared part of the paper presented at the Webinar
organised by the Gwagwalada Branch of the (NBA). Kindly permit me
to continue further on this.

JUDICIAL AUTONOMY AS DECLARED BY THE COURTS

In another judgment in one of the cases filed by Olisa Agbakoba,
SAN, the court declared as follows:

(i)        that by virtue of
section 81(2) and section 84 (1), (2), (3), (4) and 7 of the
Constitution of the Federal Republic of Nigeria 1999 the
remuneration, salaries, allowances and recurrent expenditures of
the judiciary being constitutionally guaranteed charges (or “First
Line Charge”) on the Consolidated Revenue Fund of the Federation
does not form part of the estimates to be included in the
Appropriation Bill as proposed expenditures by the president as is
the present practice.

(ii)       that by virtue of
the constitutional guarantee of independent funding of the
judiciary under Section 81(1), (2) and (3) (C) and Section 84
(2),(3), (4) and (7) of the Constitution of the Federal Republic of
Nigeria 1999, the National Judicial Council (NJC) ought not to send
its annual budget estimates to the Budget Office of the executive
arm of government or any other executive authority as is the
present practice, but to send the estimates directly to the
National Assembly for appropriation.

(iii)     that by virtue of Section 81
(3) of the Constitution of the Federal Republic of Nigeria 1999,
any amount standing to the credit of the judiciary in the
Consolidated Revenue Fund of the Federation ought not to be
released to the judiciary in warrants or other means or through the
Federal Ministry of Finance, the Budget Office, the Office of the
Accountant General of the Federation or any other person or
authority in the executive arm as it is the practice at present,
but to be paid directly, in whole, to the National Judicial Council
(NJC) for disbursement.

(iv)     that the continued dependence
of the judiciary on the executive arm for its budgeting and funds
release is directly responsible for the present state of
underfunding of the judiciary, poor and inadequate judicial
infrastructure, low morale among judicial personnel, alleged
corruption in the judiciary, delays in the administration of
justice and judicial services delivery and generally low quality
and poor output by the judiciary.

(v)      that the present practice on
judiciary funding by the defendants which is dependent on the
executive arm in budgeting and release of funds is in violation of
the Constitution.

JUSTIFICATION FOR JUSUN STRIKE ACTION

Section 287 (3) of the Constitution is very clear on the need
for all persons and authorities to give effect to the judgement of
the Federal High Court. Once a court has made declarations
concerning any subject, the executive is bound to obey them, except
in circumstances where, if it is not satisfied with the judgment,
it will follow the due process of appealing against it, which is
not applicable in this case as there is no appeal against any of
the judgments mentioned above.

The steps taken by JUSUN so far are all in accord with the law
and should be supported by all lovers of democracy.

THE FEDERAL GOVERNMENT AND JUDICIAL FINANCIAL
AUTONOMY

On June 7, 2018, the President assented to the Fourth Alteration
Act, which granted financial autonomy to state judiciary and
legislature under section 121(3) of the Constitution, which states
thus:

“Any amount standing to the credit of the House of Assembly of a
state and Judiciary in the Consolidated Revenue Fund 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.”

In a bid to give teeth to the Fourth Alteration Act, the
President inaugurated a special committee on March 22, 2019, 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. The mandate of
the Committee was to ensure the full implementation of the
4thAlteration to the Constitution and thus free these important
sectors of our democratic experiment, from the stranglehold of the
executive arm.

The judiciary 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 cap in hand, for funding. And assuredly as we all know it,
he who pays the piper calls 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.

The Presidential Implementation Committee on Autonomy of State
Legislature and Judiciary (PICASOLEJ) was consequently inaugurated
and charged to set the ball rolling. It held a two-day retreat 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 legislature and the judiciary, and heads of the Judicial
Service Committee or Commission.

*          the
budgeted sum, Capital and Recurrent, howsoever described, should be
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 warehoused in the Executive should be abolished.

Taking a cue from the work of this Committee, the Bayelsa State
Government, on December 21, 2019, complied with the Fourth
Alteration Act by granting financial autonomy to the judiciary and
the legislative house in the State.

JUDICIAL FINANCIAL AUTONOMY AND ADMINISTRATION OF
JUSTICE

Without any doubt, an independent judiciary is needed for smooth
administration of justice, whether to guarantee justice to all
manner of people or in the provision of better welfare packages for
judges and judicial staff. Thus, where there is no financial
autonomy for the judiciary, justice administration suffers. Across
the country, from the Magistrate’s Court, to the Federal High Court
and even the Supreme Court, the judges are crying neglect,
abandonment and lack of independence and autonomy. And it is as if
those concerned cannot hear the judges. At the 2019 Annual General
Conference of the Nigerian Bar Association held in Lagos, the Chief
Justice of Nigeria stirred the hornet’s nest, in his moving speech
at the opening ceremony. The CJN did not mince words that the
judiciary was under siege, suffers lack of autonomy and was being
starved of funds, by the executive arm of government, which was out
to muzzle the third arm of the realm. He gave a firm commitment
that the judiciary under him would not allow interference or pander
to the whims and caprices of the other arms of government.

At that same occasion, there was a controversy as to whether
judges were embracing self-imposed timidity or they are being
intimidated by the executive arm, which prompted the former Chief
Judge of Edo State to stand in defence of the judiciary, wondering
why lawyers have failed to defend judges in order to give them the
needed impetus to do their jobs without fear or favour. She then
wondered how lawyers expect that judges who go cap in hand to beg
for money would turn around to openly confront the executive that
pays them. It then became clear to all of us at the gathering that
the judiciary is in some crisis, as confirmed from the current
JUSUN strike action. There is no way a financially controlled
judiciary can dispense justice without fear or favour.

By Ebun-Olu Adegboruwa SAN

It is well over a month that the Judiciary Staff Union of
Nigeria, JUSUN, embarked upon their industrial strike action to
press home their demand for financial autonomy and independence for
the judiciary.

I have also been informed that workers of the various houses of
assembly of the States are also on strike to demand for financial
autonomy for the legislature. It is gratifying that the various
levels of government have set up an implementation committee to
work with JUSUN for a mutual resolution. Such initiative must
necessarily carry along the Nigerian Bar Association (NBA) and the
National Judicial Council (NJC), who are major stakeholders in the
administration of justice in Nigeria. For good cause, lawyers
across the nation have demonstrated commendable solidarity with
JUSUN, though the strike action has affected lawyers in very
several ways, especially litigation lawyers. It is a necessary
sacrifice that we have all agreed to make for a better tomorrow.
Last week, I shared part of the paper presented at the Webinar
organised by the Gwagwalada Branch of the (NBA). Kindly permit me
to continue further on this.

JUDICIAL AUTONOMY AS DECLARED BY THE COURTS

In another judgment in one of the cases filed by Olisa Agbakoba,
SAN, the court declared as follows:

(i)        that by virtue of
section 81(2) and section 84 (1), (2), (3), (4) and 7 of the
Constitution of the Federal Republic of Nigeria 1999 the
remuneration, salaries, allowances and recurrent expenditures of
the judiciary being constitutionally guaranteed charges (or “First
Line Charge”) on the Consolidated Revenue Fund of the Federation
does not form part of the estimates to be included in the
Appropriation Bill as proposed expenditures by the president as is
the present practice.

(ii)       that by virtue of
the constitutional guarantee of independent funding of the
judiciary under Section 81(1), (2) and (3) (C) and Section 84
(2),(3), (4) and (7) of the Constitution of the Federal Republic of
Nigeria 1999, the National Judicial Council (NJC) ought not to send
its annual budget estimates to the Budget Office of the executive
arm of government or any other executive authority as is the
present practice, but to send the estimates directly to the
National Assembly for appropriation.

(iii)     that by virtue of Section 81
(3) of the Constitution of the Federal Republic of Nigeria 1999,
any amount standing to the credit of the judiciary in the
Consolidated Revenue Fund of the Federation ought not to be
released to the judiciary in warrants or other means or through the
Federal Ministry of Finance, the Budget Office, the Office of the
Accountant General of the Federation or any other person or
authority in the executive arm as it is the practice at present,
but to be paid directly, in whole, to the National Judicial Council
(NJC) for disbursement.

(iv)     that the continued dependence
of the judiciary on the executive arm for its budgeting and funds
release is directly responsible for the present state of
underfunding of the judiciary, poor and inadequate judicial
infrastructure, low morale among judicial personnel, alleged
corruption in the judiciary, delays in the administration of
justice and judicial services delivery and generally low quality
and poor output by the judiciary.

(v)      that the present practice on
judiciary funding by the defendants which is dependent on the
executive arm in budgeting and release of funds is in violation of
the Constitution.

JUSTIFICATION FOR JUSUN STRIKE ACTION

Section 287 (3) of the Constitution is very clear on the need
for all persons and authorities to give effect to the judgement of
the Federal High Court. Once a court has made declarations
concerning any subject, the executive is bound to obey them, except
in circumstances where, if it is not satisfied with the judgment,
it will follow the due process of appealing against it, which is
not applicable in this case as there is no appeal against any of
the judgments mentioned above.

The steps taken by JUSUN so far are all in accord with the law
and should be supported by all lovers of democracy.

THE FEDERAL GOVERNMENT AND JUDICIAL FINANCIAL
AUTONOMY

On June 7, 2018, the President assented to the Fourth Alteration
Act, which granted financial autonomy to state judiciary and
legislature under section 121(3) of the Constitution, which states
thus:

“Any amount standing to the credit of the House of Assembly of a
state and Judiciary in the Consolidated Revenue Fund 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.”

In a bid to give teeth to the Fourth Alteration Act, the
President inaugurated a special committee on March 22, 2019, 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. The mandate of
the Committee was to ensure the full implementation of the
4thAlteration to the Constitution and thus free these important
sectors of our democratic experiment, from the stranglehold of the
executive arm.

The judiciary 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 cap in hand, for funding. And assuredly as we all know it,
he who pays the piper calls 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.

The Presidential Implementation Committee on Autonomy of State
Legislature and Judiciary (PICASOLEJ) was consequently inaugurated
and charged to set the ball rolling. It held a two-day retreat 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 legislature and the judiciary, and heads of the Judicial
Service Committee or Commission.

*          the
budgeted sum, Capital and Recurrent, howsoever described, should be
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 warehoused in the Executive should be abolished.

Taking a cue from the work of this Committee, the Bayelsa State
Government, on December 21, 2019, complied with the Fourth
Alteration Act by granting financial autonomy to the judiciary and
the legislative house in the State.

JUDICIAL FINANCIAL AUTONOMY AND ADMINISTRATION OF
JUSTICE

Without any doubt, an independent judiciary is needed for smooth
administration of justice, whether to guarantee justice to all
manner of people or in the provision of better welfare packages for
judges and judicial staff. Thus, where there is no financial
autonomy for the judiciary, justice administration suffers. Across
the country, from the Magistrate’s Court, to the Federal High Court
and even the Supreme Court, the judges are crying neglect,
abandonment and lack of independence and autonomy. And it is as if
those concerned cannot hear the judges. At the 2019 Annual General
Conference of the Nigerian Bar Association held in Lagos, the Chief
Justice of Nigeria stirred the hornet’s nest, in his moving speech
at the opening ceremony. The CJN did not mince words that the
judiciary was under siege, suffers lack of autonomy and was being
starved of funds, by the executive arm of government, which was out
to muzzle the third arm of the realm. He gave a firm commitment
that the judiciary under him would not allow interference or pander
to the whims and caprices of the other arms of government.

At that same occasion, there was a controversy as to whether
judges were embracing self-imposed timidity or they are being
intimidated by the executive arm, which prompted the former Chief
Judge of Edo State to stand in defence of the judiciary, wondering
why lawyers have failed to defend judges in order to give them the
needed impetus to do their jobs without fear or favour. She then
wondered how lawyers expect that judges who go cap in hand to beg
for money would turn around to openly confront the executive that
pays them. It then became clear to all of us at the gathering that
the judiciary is in some crisis, as confirmed from the current
JUSUN strike action. There is no way a financially controlled
judiciary can dispense justice without fear or favour.