Editorial
The suit by 36 state governments against the Federal Government, over the funding of the judiciary, is a further confirmation of the unsavoury nature of our peculiar federal system of government. For reasons known to the drafters of our constitution, we have an admixture of federal and unitary system of government, in our constitution; and that misnomer has affected the smooth running of governments.
Last week, the media reported that the attorneys-general of the states sued the Attorney-General of the Federation, claiming that Executive Order No 00-10 of 2020, issued by the President, which has made the monies due to the judiciary a first line charge from the monies due to the states, is unconstitutional and a violation of the rights of the states, with respect to their fiscal independence.
The attorneys-general contend that the executive order violates sections 6 and 8(3) of the 1999 Constitution as amended, which, according to them, make it the responsibility of the Federal Government to fund all the high courts, Sharia Court of Appeal, Customary Court of Appeal, the Court of Appeal and the Supreme Court. The states further complained that, save for the salaries of the judicial officers, the Federal Government has abandoned the capital and recurrent expenditure of those courts for states.
The states approached the Supreme Court, under section 232 of the 1999 Constitution (as amended), which gives the apex court exclusive original jurisdiction “in any dispute between the federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
From the foregoing, it is clear that the issue at stake is the interpretation of the constitution with respect to the funding of the judiciary. For us, it is strange that despite the clear provisions of the constitution, which make the money due to the judiciary a first line charge, many states have refused to obey that law; yet they now seek to rely on the same constitution to argue for their fiscal independence.
Having stated that, we agree that it is abnormal for state courts to be under the shadow of a federal body, the National Judicial Council, which pay their salaries, while other recurrent and capital expenditure are left for the states to take care of. Furthermore, while state authorities nominate the judicial officers, it is the NJC that gives the final nod, before the process of confirmation can be initiated by the governors.
So, without the approval of the NJC, the state cannot appoint her judges, as we have seen in many instances, where disputes arose in the appointment of some state judges, particularly the chief judges of states. Of significance is that since the NJC pays the salaries of judicial officers, it can make or mar such appointments, even though it is not in a position to determine the needs of the states.
Again, the uniformity in salaries does not reflect the workload of the judges, since it differs across states. So, agreeably, there are distortions in the provisions of the constitution on the judiciary, just as there are in other aspects of our national life. In our view, the constitutional incongruities are the real challenge. Perhaps the immediate solution lies in amending the allocation formula, and increasing areas of economic control by the states, to make them economically stronger.
Considering the difficulty in amending the constitution, we urge state governments to demand that revenue sharing formula be amended in favour of states, instead of frustrating the constitutional imperative that monies due to the judiciary should be a first line charge.
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