The recent protest by some magistrates in Cross River State over unpaid salaries and allowances has reignited the call for strict adherence to constitutional provisions on financial autonomy for the Judiciary. In this report by ERIC IKHILAE, lawyers suggest ways to address this problem, including the need to accommodate the inferior courts in this arrangement.
NIGERIANS were treated to a rare spectacle recently when a group of 30 magistrates staged a protest in Calabar, the Cross River State capital to draw attention to the state government’s alleged failure to pay them two years outstanding salaries and allowances.
In the course of the protest, a magistrate, Richard Bassey, collapsed and was rushed to a hospital, where he was later attended to.
Their spokesman, Solomon Abuo (a Chief Magistrate), said they resorted to the protest because Governor Ben Ayade ignored past representations and entreaties on the issue.
Abuo said: “We are protesting the non-payment of our 24 months’ salary. This is January and we have been discharging our duties to the state government. We have courts that we are heading and we have been working for the state government to bring about peace and tranquility to the society.
“Yet, the governor does not deem it fit to pay us our salaries despite our entreaties, pleas, letters, correspondences, screening upon screening. After our employment and swearing-in, we have undergone four screenings. After each of them, the governor would ignore the report requesting him to pay us our salaries. So, this is our last resort.”
He explained that the 30 magistrates were from the state’s 18 Local Government Areas (LGAs).
Abuo added: “Funny enough, the governor’s local government has the highest number (11 magistrates) and the state does not care.
“Is it wrong for one to serve the state? As Judicial officers, are we supposed to go through this kind of humiliation? That’s the question we want answers to. We are all family men with children in school; we cannot pay children’s school fees.
“Last year one of the Magistrates was arraigned before a fellow Magistrate for inability to pay house rent. Most of us can’t pay our house rents; we are squatting with colleagues and all that. Our prayer is that our 24 months’ salary be paid with immediate effect otherwise we will continue this protest and stop sittings in court until we are paid”.
State responds
In response, the state government justified its decision not to pay the magistrates, claiming that the governor did not authorise their employment, and as such, their engagement was irregular.
Like Ayade, like Lalong?
Before the Cross River episode, some judges of the High Court of Plateau State engaged in similar protest last year over unpaid allowances. Although they did not take to the streets, they engaged the services of a senior lawyer, Adeniyi Akintola (SAN), who, in a pre-action notice to Governor Simon Lalong, demanded the payment of N119,112,840 to his clients, being the accumulated entitlement of allowances and accommodation ranging from between four and five years.
The letter, dated September 8, 2020, reads in part: “We have our clients’ instructions to the effect that, by the Act, which prescribes salaries and allowances for judicial officers nationwide, it is the exclusive responsibility of the various state governments to provide all judicial officers roofs over their heads, and ensure ease of their mobility to wit; provision of vehicles and decent accommodation for them.
“Our clients informed us further that, in Plateau State, the government has over the years found it more convenient to pay Judges 200 per cent of their annual basic salary yearly in lieu of accommodation, until the year 2015 when same stopped.
“To our clients’ surprise, fellow Judges and judicial officers of the Customary Court of Appeal have been paid their accommodation allowance up to the year 2019. The basis for this discrimination remains unknown.
“Whilst our Clients’ allowances were left unpaid and have remained unpaid till date, the Plateau State Government, in an unprecedented manner, went ahead to pay a whooping three years’ accommodation allowance in advance to brother Judges, who were appointed in May, 2019.”
When contacted for the government’s side of the story, Plateau State Commissioner for Information Dan Mangjan said he was in a meeting. He consented to receiving the enquiry by text, but did not respond.
The judges are: Justices Muhammad l. Sirajo; Christine L. Dabup; Arum I. Ashom; Ilya I. Kunda; Samson P. Gang; Nanpon J. Dadi and Naflsa L. Musa.
Executive arm undermining Judicial arm
The above two instances are examples of the many ways the Executive arm of government unduly undermines the Judiciary, an arm of government that ought to be an equal partner in a democracy.
This is in spite of the many safeguards provided in the Constitution to guarantee the independence of the Judiciary, particularly in the area of finance. While the Judiciary at the federal level enjoys an appreciable level of independence, the same cannot be said of the Judiciary at the state level.
By the current arrangement, the National Judicial Council (NJC) is saddled with the payment of the salaries and allowances of judges and justices of courts named in chapter seven of the Constitution, in accordance with the provision of Section 84(4) of the Constitution.
While the Federal Government is required to provide accommodation and means of transportation for judicial officers in federal courts, the responsibility is that of the state governments to provide similar facilities for judges employed in state courts.
It is, however, entirely a state government’s affair as it relates to judicial offers in lower courts, often referred to as inferior courts – magistrate court, area courts, and customary courts, among others. While the responsibility for their appointment falls on the State Judicial Commission or Committee, the task of paying their salaries, allowances and the provision of their operational facilities and accommodation are of the state government.
While the Federal Government has, to a greater extent, been faithful to its responsibilities in this regard, the same cannot be said of the various state governments, who prefer to treat the judiciary as a subordinate arm of government. This is evident in the consistent refusal by state governors to comply with both constitutional provisions and court judgments in relation to financial autonomy to the Judiciary.
Efforts at ensuring fiscal autonomy for the Judiciary
Sections 81, 121 and 162 of the Constitution provide safeguards aimed at ensuring financial autonomy for the Judiciary, by dictating that budgetary allocations to the Judiciary should be paid to courts’ heads, who shall determine their application.
Section 81(3)(c) states: “Any amount standing to the credit of the Judiciary in the consolidated revenue fund of the federation shall be paid directly to the National Judicial Council for disbursement.”
Section 121(3) provides that: ”Any amount standing to the credit of the Judiciary in the consolidated revenue fund of the state shall be paid to the heads of courts concerned.”
Section 162(9) states that: Any amount standing to the credit of the Judiciary in the federation account shall be paid directly to the National Judicial Council for disbursement to the heads of courts established for the federation and the states under Section six of this Constitution.”
Worried that many governors have continued to disregard these provisions, the Judiciary Staff Union of Nigeria (JUSUN) sued at the Federal High Court, and, in a judgment on January 13, 2014, Justice Adeniyi Ademola held that the Federal Government and the government of the 26 states have been acting in breach of sections 81(3), 121(3) and 1692(9) by indulging in piecemeal release of budgetary allocations meant for the Judiciary.
Justice Adeniyi ordered them to henceforth desist from withholding funds meant for the Judiciary both at state and federal levels.
In another case instituted later by a former President of the Nigerian Bar Association (NBA), Olisa Agbakoba (SAN), Justice Ahmed Mohammed, also of the Federal High Court, Abuja, declared among others, that the piecemeal disbursement of budgetary allocations to the Judiciary by the Executive is unconstitutional.
Justice Mohammed equally declared that the practice where the Judiciary continues to depend on the Executive for its budgeting and release of funds, offends the provisions of Section 81(2) & (3) and 84(1), (2), (3) & (7) of the Constitution.
In an effort to add fillip to the fight for financial autonomy for the Judiciary, President Muhammadu Buhari endorsed the Executive Order 10 in 2020, which he said was meant to give effect to constitutional provisions that guarantee financial freedom for the third arm of government.
One of the positive provisions of the Order is that which requires every state government to set up a committee, to be accorded legal recognition in the appropriation laws of the states, which will be saddled with, among others, the task of determining, based on the revenue profile of the state, a workable budget for each arm of the state government.
The committee is to be made up of the Commissioner of Finance, the Accountant-General of the State, a representative of the state’s Budget Office, the Chief Registrar of the High Court, Sharia Court of Appeal and Customary Court of Appeal (as applicable), the Clerk of the House of Assembly and the Secretary of the State Judicial Service Committee or Commission.
The order also provides that each state’s Judiciary should set up a budget committee, to be responsible for preparing, administering and implementing the budget of the judiciary.
The committee is to be made up of the state’s Chief Judge (as Chairman), the Grand Kadi of Sharia Court of Appeal or President of Customary Court of Appeal (as applicable), and two members of the Judicial Service Committee/Commission to be appointed by the Chief Judge. The Chief Registrar is to serve as Secretary of the committee.
State governors have continued to oppose the implementation of the Order despite the fact that a presidential implementation committee was constituted to fashion out ways to ensure financial autonomy for the state legislature and judiciary in compliance with Section 121(3) of the Constitution, taking into account all other applicable laws, instruments, conventions and regulations, which provide for financial autonomy at the state level.
Effects of non-payment of judicial officers’ salaries on justice administration
The Judiciary, no doubt, plays critical roles in every democracy. By providing mechanisms for law interpretation, dispute resolution, among others, the Judiciary serves to safeguard democracy by subjecting everyone to the rule of law.
Its ability to play these critical roles is weakened where judicial officers are poorly remunerated.The case becomes worse where salaries and other entitlements are withheld. Judicial officers and other court staff, who have bills to pay, are compelled to cut corners and engage in some forms of unethical conduct where their due entitlements are either delayed or withheld.
Incidentally, while the Judiciary is mostly instrumental to how most politicians assume power, since the nation’s electoral process is prone to legal contestations, the same politicians are quick to accord the same Judiciary scant regard on assuming office.
Speaking at the recent confirmation hearing of the Senate Committee on Judiciary, Human Rights and Legal Matters, its Chairman, Opeyemi Bamidele (APC, Ekiti Central) noted that judicial officers in the country were poorly remunerated, a development he said, could have negative consequences for justice administration.
He said: “The present situation as regards the welfare of judges and justices calls for intervention. Salaries and allowances of judicial officers, judges and justices in Nigeria were last reviewed in 2008 through an Act of Parliament.
“At that time, exchange rate was N117 to $1 as against N467 it is currently, clearly showing that salaries of judges and justices have been static over the years and even depreciating in value.”
Chairman, NBA, Cross River State Paul Ebiala warned that the practice of denying judicial officers’ salaries and allowances “is dangerous for the dispensation of justice.”
Ebiala added that where the welfare of a judicial officer is not properly taken care of, “the danger is that you are going to expose such a person to corruption, fraud and, of course, compromise and bribery. And that’s the danger for the common man.
“It means simply that anybody, who has the money can just go there and tell them, take this and give me judgment. That is why it is an ugly situation that should not be allowed to exist at all.”
Another lawyer, Tunde Falola, said it was undemocratic for the Executive to deny the Judiciary adequate funding under any guise. Identifying some constitutional provisions that forbade the Executive from withholding funds due to the Judiciary, Falola argued that such a practice was not only a threat to democracy, it threatens the continued existence of the society, where the judicial arm is hobbled and anarchy is allowed to set in.
Way forward
To rescue itself from what has been described as the culture of oppression by the other arms of government, many have stressed the need for the Judiciary to assert its independence by ensuring that it is regarded and treated as equal to other arms of government and not a subordinate.
Falola noted that although it could be argued that President Buhari cannot dictate to the states how they run their affairs, which accounted for why the governors kicked against the Executive Order 10, it was incumbent on the states to evolve workable mechanisms that guarantee financial freedom for the judicial arm of government at the state level.
Abuja-based lawyer, Dr. Abduallahi Sunusi, canvassed a boost in the sector’s budget.
Sunusi said: “There should be an increase in the budgetary allocation of the Judiciary, and by extension the remuneration of judicial officers, to effectively curb the temptation for corruption which is a major hindrance to access to justice.
“This would aid the strides made by the Nigerian Judiciary Committee in making the Judiciary less susceptible to compromise for financial gains.
“Also, in this regard, the various states’ legislative houses could be made to give legislative approval by way of incorporation, the salaries and allowances of magistrates so as to protect such remuneration from executive interference.”
Ebiala reasoned that the condition that prompted the protest by the magistrates in Cross River State would not have existed if the Executive in various states abide by relevant constitutional provisions of the Nigerian constitution.
He said: ”If what the constitution of this country provides has been obeyed by Chief Executives across the country, I am sure we will not be where we are today. If you look at Section 81 of the Constitution, it clearly states that any amount that stands to the credit of the Judiciary should be given to the National Judicial Council for disbursement to heads of courts. And if you go to Section 121(3) it replicates that position in respect of the state Judiciary.
“If that constitutional provision has been obeyed, I am not sure the Judiciary would go cap in hand to the Executive to ask for money to pay salary, to take some developmental steps and things like that.
“You recall recently that the president of this country came out with Executive Order 10 to give some kind of teeth to these provisions of the Constitution to enable the governors in the entire country hand over the money that is meant for the Judiciary to them (judicial officers).”
A Senior Studies Fellow at the National Judicial Institute (NJI), Ikechukwu Nduchebe, was of the view that should the Judiciary seek to be independent, “it has to stand up for its institutional and vocational autonomy.”
Nduchebe urged the Judiciary to vigorously pursue and lobby for the implementation of the Executive Order 10 before the expiration of this administration that midwifed it.
He added: “The Judiciary is an arm of government like the Legislature and Executive, and not a ministry under the Executive. Since the National Assembly does not submit its budget to the Executive arm for appropriation and disbursement, the Judiciary should not be made to submit its budget for appropriation and disbursement, rather, the Executive should ensure the proper implementation of the budget to ensure that the checks and balances envisaged in a democratic dispensation is brought to bear.”
