The Judiciary, particularly at the state level, is close to achieving its much desired financial autonomy with the recent signing of the Fifth Alteration (No.6) Bill by President Muhammadu Buhari. Legal experts, in this report by ERIC IKHILAE, hailed the development, but stressed the need for transparency in the deployment of budgetary allocations.
Tortuous journey
The journey to financial autonomy for the Judiciary has arguably, been a tortuous one, which has seen judicial stakeholders, over the years, calling for a shift in the current arrangement.
Under the current funding pattern, the Judiciary, particularly at the state level, depends on the magnanimity of the other arms of government for its funding.
Today, its budget estimates form an item on the budget submitted by the Executive to the Legislature annually.
The Judiciary, under the current financial arrangement, looks up to the other two arms – the Executive and Legislature – when seeking approval of its yearly budgetary allocation.
A former Chief Justice of Nigeria (CJN), Justice Mariam Aloma Muktar, decried this practice, saying it hampers judicial independence.
While addressing the All Nigerian Judges Conference in December 2013, Justice Muktar noted that an independent judiciary was in the interest of the entire country.
She stressed that it was time the constitution provided for the independence of the judiciary, especially at the state level where governors habitually interfere with the operations of the Judiciary.
One of her successors in office, Justice Ibrahim Muhammad, also expressed his displeasure about the funding arrangement for the Judiciary.
Speaking during the Supreme Court’s new legal year ceremony on September 23, 2019, Justice Muhammad emphasised the need for judicial financial autonomy.
The former CJN noted how the funding pattern impacts negatively on the independence of the third arm of government.
He added: “Be that as it may, when we assess the Judiciary from the financial perspective, how free can we say we are?
“The Judiciary’s annual budget is still a far cry from what it ought to be. The figure is stagnated for a long period or goes on a progressive decline.
“The only thing I can do at this juncture is to plead with all concerned to let us enjoy our independence holistically.
“If you say that I am independent, but in a way, whether I like it or not, I have to go cap in hand, asking for funds to run my office, then I have completely lost my independence.
“It is like saying a cow is free to graze about in the meadow, while tying it firmly to a tree. Where is freedom? We don’t pander to any whims and caprices. If there is any deity to be feared, it is the Almighty God.
“The gross underfunding and neglect of the judiciary over the years have impacted negatively on the infrastructure and personnel within the system.
“To a large extent, it affects productivity, increases frustration, and deflates morale. That is certainly not a good omen at this stage of our nationhood.
“The constitution provides for the separation of powers and independence of the three arms of government. I am using this medium to appeal to governments at all levels to free the Judiciary from the financial bondage it has been subjected to over the years.
“Let it not just be said to be independent, but should be seen as truly independent in words and actions. There should not be any strings attached.
“We would not like to negotiate our financial independence under any guise. Even as I speak now, some state Judiciaries are still having issues with their respective governments.
“A stitch in time will certainly save nine. Let the judiciary take its destiny in its hands,” Justice Muhammad said.
The President of the Court of Appeal (PCA), Justice Monica Dongban-Mensem spoke in similar vein while addressing guests at the opening of the court’s 2021/2022 legal year in September 2021.
Justice Dongban-Mensem expressed concern about the inadequacy of budgetary allocation to the Judiciary, which she said, was hampering the capacity of the court to effectively discharge its constitutional responsibilities.
“The salary structure for judicial officers and staff in Nigeria has consistently ranked poorly when compared to that of their counterparts in other African and Commonwealth countries.
“The last time salaries of judicial officers were reviewed in Nigeria was via the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) (Amendment) Act, 2008, which came into force on February 1, 2007.
“According to the Act, the Honourable, the Chief Justice of Nigeria’s annual basic salary is N3,353,972.50 or N 279,497.71 monthly, while other Justices of the Supreme Court and the President of the Court of Appeal earn N 2,477,110.00 as basic annual salary or N206,425.83 monthly.
“My brother Justices of the Court of Appeal, earn an annual basic salary of N 1,995,430.18 each or N166,285.84 monthly, exclusive of benefits and allowances.
“We, therefore, call upon the Federal and State Governments to live up to their obligations under the law.
“I also implore the governments of the federation and states to urgently review the salaries and allowances of judicial officers and staff.
“The salaries of Justices are static with no graduation as in the civil and public service. We have been on one salary grade for over 10 years now.
“I call on the government to increase allocations that will enable us to introduce technological innovations that will improve adjudication.”
On the effect of inadequate funding on her court, the PCA noted that the Court of Appeal is plagued with aged, deteriorating houses.
“The reason is not far-fetched. Most of the houses the Justices occupy are in fact older than the Court of Appeal being houses donated by the then regional authorities.
“These structures are overdue for replacement. Alas, the Court of Appeal has a very meagre budgetary allocation which cannot sustain the development of new infrastructure being all drawn by repairs of the ancient buildings,” the PCA said.
Agbakoba’s suit
Worried by the development, a former President of the Nigerian Bar Association (NBA), Olisa Agbakoba (SAN), filed suits in court to compel the implementation of existing constitutional provisions on financial autonomy for the Judiciary.
Agbakoba was of the view that “the continued dependence of the judiciary on the executive arm of government 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 service delivery, and generally low quality and poor out-put by the judiciary.”
Executive Order 10
In view of the sustained advocacy mounted by judicial stakeholders on the need to allow fiscal autonomy for the Judiciary, President Buhari on May 22, 2020,signed Executive Order 10 (EO10) meant “to enforce the implementation of the 4th Alteration to the Constitution and provide a practical framework for the legislative and judicial arms of state governments to have financial autonomy.”
The 4th Alteration, which amended Section 121(3) of the constitution, provides that: “Any amount standing credit of the (a) House of Assembly of the state, and (b) 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.”
Before this amendment, Sections 81 and 121(3) of the Constitution provided autonomy for only the judiciary.
Although EO10 was hailed by many, most state governors kicked against it, arguing that it amounted to breaching of the federalism principle.
JUSUN strike
Angered by this development, members of the Judiciary Staff Union of Nigeria (JUSUN) commenced a nationwide strike on April 6, 2021, which was only suspended after the signing of a Memorandum of Action (MoA) between the Nigeria Governor’s Forum (NGF) on May 20, 2021.
JUSUN, which had explored the judicial option, with minimal success, equally insisted on financial autonomy for the Judiciary, particularly at the state level where, it claimed that the governors have deliberately denied the Judiciary access to its fund in gross disregard of the provision of Section 121(3) of the Constitution.
EO10’s end
The Supreme Court, however, took the wind out of the sail of the EO10 when, in a judgment on February 11, 2022 it struck down the order.
In a split decision of six-to-one, the apex court declared as unlawful and unconstitutional the EO10 on the grounds that President Buhari exceeded his constitutional powers in issuing it.
The judgment was on the suit marked: SC/CV/655/2020 filed by the 36 state governments against the Federal Government.
In the lead majority decision, Justice Musa Dattijo Muhammad said: “This country is still a federation and the 1999 Constitution it operates is a federal one. The constitution provides a clear delineation of powers between the state and the Federal Government.
“The President has overstepped the limit of his constitutional powers by issuing the Executive Order 10. The country is run on the basis of the rule of law.”
Justices Centus Nweze, Ejembi Eko, Helen Ogunwumiju, Emmanuel Agim and Adamu Jauro agreed with the lead majority judgment.
It was only Justice Uwani Abba-Aji who dissented on this issue and held that EO10 was lawful and constitutional.
Justice Abba-Aji said: “We are not unaware of the hanky-panky and subterfuge played by state governors against the independence and financial autonomy of state Judiciary.
“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.
“Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions…the Executive Order is to aid the states legislature and judiciary in curing the constitutional wrong of their financial autonomy, which the state have always denied. This is not unconstitutional.”
Such was the case with fiscal autonomy for state Judiciary until the latest legislative intervention that gave birth to the “Fifth Alteration (No.6) Bill.”
What impact will fiscal autonomy have?
The popular opinion among advocates of financial autonomy for the third arm has been that the lack of it has been a major obstacle to attaining judicial independence in country.
They argue that monetary autonomy remains a key component of judicial independence, which must be supported by to preserve and encourage an unencumbered and fair adjudicatory system.
Abuja based lawyers, including Dr. Daniel Makolo and Mr. Tunde Falola, are of the view that the funds due to the Judiciary should be on a first line charge and remitted directly to it upon appropriation to ensure the sector functions unhindered.
Falola, who stressed the importance of adequate funding to the effectiveness of the Judiciary, noted that granting financial autonomy to the state Judiciary possesses the capacity to enhance speedy dispensation of justice in our states court.
He added: “The current atmosphere in which our judicial officers operate is nothing to write home about. Most of our judges still write and take down proceedings using hands.
“Not all of them have access to modern technology to take down record and this is unacceptable. Granting state Judiciary financial freedom will guarantee access to fund that can be used to equip these judicial officers for efficient service delivery.
“Closely related to this is the undeniable fact that an average judge in most of the states of the federation is poorly remunerated. A judge will hardly give his very best in the discharge of his judicial duties when he is poorly remunerated.”
Falola added that the actualisation of fiscal autonomy to the judiciary at the state level will remove this anomaly of poor pay, which, he noted, “is antithetical to the quick dispensation of justice.
“Financial autonomy to the state Judiciary will also put an end to undue influence or pressure on our Judicial officers by the Executive Arm of Government.
“A judiciary that lacks financial autonomy will, no doubt, be subjected to the whims and caprices of the Executive, when faced with daunting financial challenges in the discharge of its constitutional mandate, a trend that is dangerous to the justice sector.
“Granting financial autonomy to state Judiciary will equally enhance its operational capacity. In some states, the number of judicial officers are far below the number of cases being handled in courts.
“Financial freedom will pave way for general overhauling of the entire system in terms of Judges’ recruitment.
“By and large, I am of the firm opinion that granting financial autonomy to our state Judiciary is a subtle reform of the justice sector.
“It will, in no small measure, enhance the real judicial independence as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria,” Falola said.
How to implement the new Act
A lawyer, Mark Ikpadun, did not envisage any difficulties in the implementation of the new Act. To him, the constitution has provided a guide.
Ikpadun noted that the constitution has provided for how the judiciary, at all levels, should be funded, citing Section 81(3), which provides that “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 to the heads of the courts established for the Federation and the State under section 6 of this Constitution.”
He also referred to Section 162(9), which provides that “Any amount standing to the credit of the judiciary in the Federation Account shall be paid directly to the National Judicial Councils for disbursement to the heads of courts established for the Federation and the States under section 6 of this Constitution.”
Section 121 (3), he noted, provides that “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned.”
The above Constitutional provisions provide for the process of funding the judiciary and, if followed as prescribed, will increase the financial autonomy of the judiciary and ensure its independence.”
Need for transparency
While many are upbeat about the potentials of a financially liberated Judiciary, others have also cautioned about the need to those to be saddled with the responsibility of deploying the funds to learn to be opened in their conduct.
They also suggested the need to develop a financial autonomy implementation structure that will be transparent and open to the public to ensure accountability.
There is also the view that the general suspicion that the Judiciary is less transparent about its deployment of budgetary allocations has, no doubt, contributed, over the years, to the waning public confidence in the system.
The Attorney- General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) added his voice to this at a recent gathering when he tasked the third arm of government on the need to ensure accountability and probity in the handling of its finances.
Malami challenged the Judiciary to be transparent and accountable in the spending of the funds allocated to it in its annual budgets.
Reacting to the Judiciary’s claim of inadequate budgetary allocations, Malami said the Federal Government was not in a position to know whether the judiciary’s budget allocation was inadequate due to the opacity that characterises its financial records.
He said: “Why is the N104 billion provided for the judiciary in the budget insufficient? We are not in a position to answer, because their (judiciary’s) books are not open.”
Malami said until the three arms of government embrace “the operation of an open government partnership arrangement, we can never be in a position to identify to what extent the budgetary provision made is inadequate.”
