Many courts evince infrastructural decay and neglect, lacking essential modern facilities and amenities. Unfortunately, there seems to be no end in sight for the woes besetting the judiciary as poor funding is increasingly weakening the third arm of government. ADEKUNLE YUSUF reports that the judiciary’s lack of fiscal autonomy endangers democracy and imperils access to justice
During the ongoing debate of the 2014 budget proposal, a melodrama of sorts erupted on the floor of the Senate, over what a member considered as a systematic annihilation of the judiciary through paltry funding. However, like many disappointing and compromising resolutions and decisions of the Senate lately, an issue that should have been treated with utmost seriousness was consumed by mere theatrics.
While the country’s budget has witnessed a geometric incremental pattern annually, the third arm of government has been slowly but steadily crippled by a downward trend in its yearly capital allocations. That was the kernel of the submission of Senator Umaru Dahiru Tambuwal, a lawyer and chairman of the Senate Committee on Judiciary. At a point, the Senator’s voice, which reverberated through the hallowed chambers, was so persuasive and convincing that even the Senate President David Mark had to interrupt him, asking tongue-in-cheek whether the third-term senator from Sokoto State is a lawmaker or a judicial officer.
Unfortunately, Senator Tambuwal, like a repentant gang member who wants his colleagues to change their ways, prodded his colleagues to no avail over the issue. And at the end of the day’s proceedings, there was no inkling that the lawmakers, judging by the body language of those who attended the session, may hearken to the clarion call to liberate the judiciary from its lingering financial hemorrhage.
As The Nation learnt, many lawyers are happy that Tambuwal echoed angry sentiments already rumbling in the belly of officers and workers in the judicial arm of government. According to some senior lawyers, it is an open secret that the judiciary is gasping for breath as a result of paltry capital allocation. This, they say, is making it increasingly difficult for judges to perform, thereby constricting access to justice.
If the financial gully in which the judiciary is enmeshed is deep, investigations have shown that it is not as a result of want of constitutional bulwarks, for the 1999 Constitution safeguards the principle of separation of powers between the three arms of government. By the provisions of the 1999 Constitution, which grants direct funding status to all the superior courts of records, there are three sources of funding for the judiciary. The superior courts of record are courts established by the Constitution, including the Supreme Court, Court of Appeal, Federal High Court, State High Court, Sharia Court of Appeal, Customary Court of Appeal and the National Industrial Court. And by the Constitution, all the aforementioned courts are to be funded from the Consolidated Revenue Fund of the Federation, the Consolidated Revenue Fund of the State, and the Federation Account. According to section 84 (2) (4) and (7) of the Constitution, the capital and recurrent expenditure of judicial officers of superior courts shall be taken from the Consolidated Revenue Fund of the Federation. In other words, the remuneration, salaries and allowances of judicial officers in the superior courts are to be charged on the Consolidated Revenue Fund of the Federation. And for the states, section 121 (3) of the same document provides that any amount standing to the credit of the judiciary shall be paid directly to the head of courts concerned. That is to say, section 124 (1) (2) and (4) says the remuneration, salaries and allowances payable to judicial commission shall be charged upon the Consolidated Revenue of the State. Unfortunately, all these provisions are often observed in the breach – to the detriment of fiscal autonomy for the third arm of government.
Desirous of seeing the above constitutional provisions upheld in the country’s annual budgeting ritual, foremost human rights activist and former president of the Nigerian Bar Association (NBA) Olisa Agbakoba (SAN) has elected to lead the struggle to ensure direct funding for the judiciary from the Federation Account. Last year, he filed a suit at the Federal High Court to this effect. The suit, numbered FHC/ABJ/CS/63/2013, is against the Attorney General of the Federation (AGF), the National Judicial Council (NJC), and the National Assembly by originating summons. In the suit, Agbakoba contends that section 81(1)(2) 1999 Constitution excludes the remuneration, salaries and allowances and recurrent expenditures of the judiciary from the President’s Appropriation Bill, being charges upon the Consolidated Revenue Fund of the Federation. He said section 81(3)(C) of the same Constitution also guarantees direct payment to the NJC of any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation. Among other things, the Plaintiff’s position is that sections 84 (2) and 84 (7) of the 1999 Constitution make the remuneration, salaries and allowances and recurrent expenditures of the judiciary charges upon the Consolidated Revenue Fund of the Federation, placing them on the “first line” of funding from the Consolidated Revenue Funding above Executive Appropriation Control. The defendants, therefore, are in joint and continuing breach of sections 81 and 84 of the 1999 Constitution, Agbakoba said.
Therefore, the human rights activist seeks to establish the following: One, that by Sections 81 (2) and 84(1), (2), (3),(4), and (7) of the 1999 Constitution, the remuneration, salaries, allowances and recurrent expenditures of the Judiciary, being constitutionally-guaranteed charges (or “First Charge”) on the Consolidated Revenue Fund of the Federation, do not form part of the estimates to be included in the Appropriation Bill as proposed expenditures by the President as is the present practice. Two, 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 1999 Constitution, 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 ought to send the estimates directly to the National Assembly for appropriation. Three, that the continued dependence of the Judiciary on the Executive 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 administration of justice and judicial services delivery and general low quality and poor out-put by the judiciary. Four, that the present practice on Judiciary funding by the defendants, which is dependent on the Executive in budgeting and release of funds is in violation of sections 81 (2), (3) (c) and 84(2), (7) of the 1999 Constitution and therefore unconstitutional, null and void. Five, perpetual injunction against the defendants from all practices on Judiciary funding which run contrary to Sections 81 (2) (3) and 84(2) (7) of the 1999 Constitution, to wit, submitting Judiciary’s estimates to the Executive instead of directly to the National Assembly and release of the Judiciary’s fund in warrants by the Executive instead of directly to the National Judicial Council for disbursement. The final determination of the suit is being awaited.
Also, defying the cloak of conservatism often worn by judicial officers of her ilk, the Chief Justice of Nigeria (CJN) Justice Mariam Aloma Mukhtar recently voiced out the frustration of her colleagues at a public function, lamenting that poor funding of the judiciary is taking a debilitating toll on the embattled arm of government. The CJN vented her spleen on September 23, 2013, at a special session of the Supreme Court of Nigeria to swear in newly decorated SANs.
“Over the years, funding of the courts has remained a challenge as evidenced in the (deplorable) condition of many courts in Nigeria today. Statistics have shown that, funding from the Federal Government has witnessed a steady decline since 2010, from N95 billion in that year to N85 billion in 2011, then N75 billion in 2012 and dropped again in the 2013 budget to N67billion. Indeed with this amount, if the amount allocated to the extra-judicial organisations within the judiciary is deducted, the courts are left with a paltry sum to operate. The simple implication is that our courts are increasingly finding it difficult to effectively perform their day to day constitutional roles. The resultant effect of a slim budget in the Judiciary is that a number of courts in Nigeria today evince decay and neglect of infrastructural amenities, particularly at the state level. In some cases, the court buildings do not possess the required well-equipped library for judges to conduct their research. This may make judges rely on information supplied by lawyers which should not be the case,” the CJN lamented.
Not one to give up easily, the CJN also reiterated her concern over the dwindling financial state of the judiciary at the 2013 All Nigerian Judges Conference, held last December at the NJI headquarters in Abuja.
She protested thusly: “Let me also state that even the federal courts, which hitherto enjoyed some measure of robust financial independence, are groaning under the heavy budgetary cuts. There is a continued reduction in the budgetary allocation to the judiciary every year. The experience of the judiciary under the 2013 budget is perhaps the worst ever.”
This anomaly is, however, not limited to the federal level. As pundits carpet the government at the federal level for inflicting a haemorrhage of cash on the judiciary, it is also true that state governments are culpable. Many state governments now allocate a paltry percentage of the state fund to the judiciary annual, thus denying the third arm of government an atmosphere of seamless operations. But that is not all, for some governors are now outdoing the Federal Government. According to those who should know, some state chief executives allegedly steal from judiciary budget. That was why the retired CJN, Justice Salihu Modibbo Alfa Belgore, lamented publicly in 2007 that governors are “dipping their hands into the judiciary budget, saying “the idea of doling out pittance, mostly very short of budgetary provisions, is unconstitutional, and can reflect some extant corruption in withholding the monies. It destroys the constitutional notion of separation of powers.”
This anomaly also caught the attention of another retired CJN Justice Dahiru Musdapher. While presenting a paper, The Nigerian Judiciary: Towards Reform of Bastion of Constitutional Democracy, Justice Musdapher concluded that the continued breach of the constitutional provisions regarding funding of the judiciary is hampering the independence of the judiciary as well as the dispensation of justice.
“It is regrettable that some state chief executives treat the judiciary as an appendage of the of the executive arm. While it is true that, in some cases, this is self-inflicted (because of the way some judges portray themselves), it does not invariably follow that a distinct arm of government should, because of the actions of a few, be treated with disdain. Sadly, the judiciary is several states still goes cap in hand to the executive begging for funds. The plight of the state judiciary is compounded by the fact that, in spite of the best efforts of the NJC, the processes of appointment and removal of judges/security of tenure is the subject of political theatrics,” retired Justice Musdapher said.
But if Justice Aloma-Mukhtar had thought her lamentations would sway the 2014 Appropriation Bill in favour of the judiciary, she was utterly wrong, for the steady decline in fund allocation being faced by the third arm of government has continued into the current fiscal year. Despite all appeals, the judiciary is allocated a paltry N68 billion of N4.64 trillion, meaning that the third arm of government is just N1 billion better off in the 2014 budget estimates when compared with (N67 billion) that was allocated to it in 2013. Based on this, experts say such a marginal increment is grossly insufficient to raise the arm of government from the morass of financial difficulty. The N67 billion allocated to judiciary in 2013, which prompted the CJN into open verbal protestations last year, has scored a historic first, regarded as judiciary’s “all-time low.” It represented 1.3 percent of the N4.924 trillion spent in 2013, also a drastic reduction by 8 billion from 2012 allocation of N75 billion (representing 1.7 percent of the year’s budget).
Investigations also showed further that the 2012 fund allocation to the judiciary was itself a reduction of the N85 billion in 2011 (2.2 percent of the year’s budget). This was also a reduction from N95 billion allocated in 2010 (see table for a breakdown of judiciary budgets in the last ten years). It is, however, curious that the Federal Ministry of Justice, which is the executive arm of the administration of justice sector, does not seem to be subjected to the same financial hemorrhage that is afflicting the third arm of government. According to details contained in the 2014 budget estimates submitted to the National Assembly by the Minister of Finance Ngozi Okonjo-Iweala, the Federal Ministry of Justice alone is allocated N4.7 billion.
All over the country, the negative effects of starving the judiciary of fund have been colossal. The President of NBA Okey Wali (SAN) told The Nation that judiciary’s underfunding has made the courts’ ambience unconducive for both court officials and temporary inhabitants. In many instances, courtroom amenities such as air conditioners, fans, furniture and library tell a story of years of abandonment and decay – occasioned by paucity of fund over the years.
Besides, Wali lamented that further that it is embarrassing that many judges still write in longhand, since there are no computers and modern communication tools, such as automated recording systems that can help in hastening note taking. Even in terms of information and record storage and retrieving, almost all the courts are said to be lagging behind when compared to their counterparts in other climes.
“ A judge comes to court and he sits from say 9am till 3pm writing; what is going to be the level of productivity of such a person? Even the process of taking down notes during proceedings, as he is taking notes while they were talking, the quality work cannot be the same, the number of cases he entertained cannot be the same. Of course, courts need internet facilities. There are court rooms in this country that operate in thatched houses. I have seen courts without manual typewriters, not to talk of electric typewriters before you talk of computers. That is not a serious way of dealing with issues. All these have t o do with funding for the judiciary,” Wali said.
According to the Director-General of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof Epiphany Azinge, another wrenching consequence of poor funding for judiciary manifests in case management processes that are notoriously archaic and slow. Cases in many courts suffer prolonged delays that run into years, even sometimes decades before reaching the apex court, especially when the interest of the elites are under threat. The professor said delayed trials arise partly because the number of courts as well as judicial officers that man them, like judges and magistrates, are not adequate in terms of number, resulting in heavy workload. With approximately 871 courts in Nigeria to about 170 million people, it means the country battles with the ratio of one court to 195,177 people, thus limiting accessibility to justice. This, lawyers add, also accounts for why many persons accused of committing one crime or the other often find themselves behind bars awaiting justice longer than necessary, instead of being charged to court. And if the admission of the Minister of Interior Abba Moro, as at March last year, is anything to go by, 38,000 of the 54,000 prison inmates across the country are awaiting trial, adding that only 16,000 were convicted, thus reinforcing the concept of justice delayed is justice denied. While there are no adequate trainings for judiciary workers, experts also berate the poor conditions of service of judicial workers, which those in the know say predispose court officials to embark on incessant strikes and make them susceptible to monetary gratifications and other corruptive tendencies of moneybags that may want to pervert the course of justice and soil judicial integrity.
As findings of judicial performance evaluation have shown, most cases assigned to courts are not disposed on time, leading to denial of access to justice. According to Nigeria’s Judicial Performance Evaluation for years 2008 – 2011, which was a performance evaluation of courts of superior record conducted by the NIALS, up to 50 percent of cases allocated to courts were not disposed of during the period. In the Court of Appeal category, only 11.4 percent of cases allocated to all the divisions of this court were disposed of in 2008, while 10.3 percent of the cases were disposed of in 2009. Even in 2010, 12.6 percent of cases allocated to appeal courts in the country were disposed of while only 9.9 percent of cases were disposed of in 2011. In the federal high court category, only 14.8 percentage of cases recorded were disposed of in 2009, while 10.3 percentage of allocated cases were disposed of in 2010. In 2011, it was 24.3 percentage of cases that were disposed of. In the same period under review, the National Industrial Court did not dispose up to 50 percentage of cases allotted to it in any year. At the state high courts, the findings of the study showed that most courts disposed of less than half of the cases recorded per year, with the exception of Kebbi and Zamfara states where more than fifty percentage of cases were disposed of – though these two states were said to have recorded fewer cases compared to courts in the Southern parts of the country.
Director of Programmes at Access to Justice, a human rights organisation, Mr. Leonard Dibia, said a 2008/2010 research by the group discovered how underfunding has hampered smooth functioning of the judiciary.
“There is no functional electronic recording system in Nigerian courts. Judges work themselves to stitches by writing long hand for upwards of six to eight hours of daily proceedings. At the Federal High Court Lagos (the busiest jurisdiction of that court in Nigeria), some court rooms have the suffocating size and ambience of mere ‘boys quarter’ batchers. Lawyers are made to cue-up on the adjoining corridors in wait for space in the court rooms. Poor infrastructure generally characterises the system and in a Justice for All sponsored study in 2012, some Magistrate courts in Kaduna State were reported to be without benches.
“Until recently, a large section of the Tapa Magistrates courts in Lagos were run in metal containers from Tin Can Port. Reducing judicial funding in these circumstances is like slaughtering an already ailing bird,” he said.
Sebastine Hon (SAN) said judiciary underfunding hampers justice administration, adding that the executive must stop tinkering with the budget of the judiciary.
“I do not understand the reason behind the practice where, every year, the budget for the judiciary and funds made available for it annually continue to dwindle. We now have more courts and more personnel to man them; there is also the increase in the number of capital projects being executed by the judiciary, but yet its annual budget keeps reducing yearly in billions. The executive should immediately stop this practice.”
Hon also said the CJN should originate budgetary proposal and capital expenditure for state courts, saying that is what the Constitution provides.
“Whoever is cutting judiciary’s budgetary proposals sent to the National Assembly is doing grave injustice to the workings and efficiency of the judiciary and the administration of justice. Without an efficient and effective judiciary, our democracy is gone. All the other arms of government do things that are subjected to the judgmental opinion of the judiciary.”
The Chairman of the Legal Aid Council, Chief Bolaji Ayorinde (SAN) ,believes that judiciary underfunding breeds corruption.
And for the former President of the Commonwealth Lawyers Association, Mrs. Boma Ozobia, the country needs a radical and total overhaul of the system to properly address this issue of poor judiciary funding, adding that judges are relatively poorly equipped when compared to their counterparts in the developed Commonwealth.
For now, it seems the government at state and federal levels are unwilling to change the status quo. So, the country will continue to have a malnourished judiciary, with all its attendant side effects.
