In contemporary democratic society, the judiciary is perceived as the sentinel of justice, bastion of hope and last line of defence for the common man. The basic precepts of democratic ideals; rule of law and due process derive their relevance and true meaning in the effective operation of judicial independence. Needless to say that judicial freedom is the bedrock of a free and functional society. Hence, judicial independence is an indispensable element in the administration of justice. Notably, at the very core of the operation of judicial autonomy is its financial autonomy. The concept of judicial independence used interchangeably with judicial autonomy or freedom was developed from the operation of the doctrine of separation of powers. Interestingly, the framers of the Constitution of the Federal Republic of Nigeria in seeming recognition of the doctrine, in Chapter II, Section 4, 5 and 6 distinctively and separately apportioned the powers and functions of government among the three arms of government vis; Executive, Legislature and Judiciary for the purposes of smooth running of the polity and providing checks and balances amongst the three branches of government.
By reason of the Constitution, the executive generally proposes and administers the fiscal policies of government. Usually, political and economic considerations largely determine the fiscal policies of government. Whilst through a sense of comity (in common parlance popularly referred to as the principle of “ rub my back, I rub your back”) and by their inherent structure, the executive and the legislature generally have cooperated with one another to adequately cater for the needs and advance their respective interest in the budgetary allocation regardless of how frivolous. In contrast, the comparatively unassertive request of the judiciary is neglected by the two other arms of government. The practical and germane question to be posed here is- does the judiciary branch of government have the authority to determine the amount of funds necessary to fulfil its constitutional responsibilities?
The answer is a resounding ‘NO’. Sadly, the judiciary is treated as an appendage of the executive, particularly at the state level. Notable, is the debasing practice of buying fleet of cars and gifting houses to judges and other judicial workers by governors, in a bid to render them stooge of the government and other political godfathers. Recently, at the inauguration of the remodelled Sokoto High Court Complex, the Attorney General of the Federation and Minister of Justice asserted that “ the government would soon unveil an enhanced salary package and conditions of service for judges as part of the measures to make them deliver justice without fear or favour”. I daresay with all sense of responsibility that this disposition of the agents of the executive arm is a clear demonstration of misunderstanding and misapprehension of the role and function of this separate and distinct branch of government. It is an interference, gross usurpation and subordination of the judiciary arm of government. The Constitution categorically in Section 81(3) and 121 (3) stipulate that the budgetary allocation standing to the credit of the judiciary in the Consolidated Revenue Fund (CRF) of the Federation shall be paid directly to the National Judicial Council for the disbursement to the heads of the Courts established for the Federation, including the States. It is to be noted that all revenues and monies raised or received by the Federal Government are paid into the CRF. Meanwhile, despite the constitutional framework guaranteeing financial freedom to the judiciary, the executive arm, particularly the governors of the respective States are disinclined in giving full effect to the provisions of the supreme law of the land.
As a backlash to the recalcitrance of the executive, in 2013, the former Chairman of Nigerian Bar Association, Olisa Agbakoba commenced two cases separately at the Federal High Court and State High Court whilst the Judicial Staff Union (JUSUN) also sued the 36 States governors at the Federal High Court in pursuit of financial autonomy of the judiciary and in the three instances respectively, the Courts gallantly affirmed and upheld the rights of the Federal and States judiciary to fiscal independence. Gratifying to note that, in compliance with these judgments, President Muhammadu Buhari gave full and desired effect to the Constitutional provisions of Section 81(3) and 121(3) by issuing Executive Order No. 10 of 2020 cited as “ The Implementation of Financial Autonomy Order, 2020” which grants financial autonomy to States legislature and judiciary by empowering the Accountant General of the Federation to deduct from the allocation due to a State directly from the Federation Account any sums appropriated for the legislature or judiciary of that State and pay funds directly to the State’s legislature or judiciary concern where the State fails to release to legislature or judiciary as the case may be. Pursuant to the Executive Order, the Federal Government set up the edentate and otiose enforcement mechanism – Presidential Implementation Committee imbued with powers to ensure compliance of the Order. Regardless of the pleas and entreaties of JUSUN, NBA and other judicial stakeholders for the enforcement of Court decisions in respect of judicial autonomy and the pressure mounted by the Presidential Implementation Committee, the State governors still grip the judiciary by the jugular and will not balk.
As a result of the impertinence of the executive governors, JUSUN has embarked on a nationwide strike since 6th April, 2020 which is in its ninth week, to press home the demand for judicial financial autonomy. As a condition to end the protracted strike, the Union requested that all the allocations accruable to the State judiciary from October 2020 till May, 2021 be deducted and paid directly from the Federation Account to the heads of Courts through the National Judicial Council as prescribed by the Constitution. In reaction, the States governors hypocritically through the Chairman of Governors’ Forum, Governor Kayode Fayemi, have jumped on the bandwagon extolling the importance of judicial autonomy, yet unwilling to do the needful. Authentically, they have contended that there is need for modality for the implementation of financial independence across the States whilst gauging the disposition of JUSUN, it appears, the Union has reached the limit of its tolerance and forbearance. In the quandary state of affairs, who will bell the cat? Evidently, the strike has taken its toll on the administration of justice, both commercial and criminal adjudicatory systems have been grounded to a halt. Suspects are inordinately detained in the police cells particularly those for serious crimes that cannot stand the chance of administrative bail by the police. Lawyers are the worst hit, as huge proportion of their earnings are tied round the functioning of the Court systems.
Recently, the Governors sprang up a seemingly magical anecdote to the drawn-out issue, proposing a template for the implementation of the legislative and judicial autonomy by creating a State Account Allocation Committee (SAAC) to oversee the distribution of funds to the 3 arms of government at the State level. Hence, two weeks ago the State governors and both leadership of JUSUN and Parliamentary Staff Association of Nigeria (PASAN) reportedly entered into an agreement on the modalities and timelines for commencing full financial autonomy for the 3 tiers of government at the State level. By the tenor of the agreement, all States are required to pass and assent to Funds Management Law and State House of Assembly Service Commission Law. Also, the States are mandated to put in place implementation structures within a time frame not exceeding 45 days from the execution date. Furthermore, the agreement states that the Fund Management Law should charge the State Accountants General to release appropriated funds directly to each arm. Corollary to the FML, is the provision for the creation of SAAC at State level with the responsibility to oversee the distribution of available resources to each arm of the government.
Appraising the propriety of the entire agreement by the State governors and the figureheads of JUSUN and PASAN, it is beyond any shadow of doubt or deceit that the Constitution explicitly prescribes the manner the funds standing to the credit of the Federal and State judiciary are to be disbursed. Section 121(3) of the 1999 Constitution (as amended) graphically states that “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the National Judicial Council for the disbursement to the heads of the Court concerned” To an absolute extent, the Constitution did not provide for the enactment of FML or creation of SAAC to oversee the distribution of State resources to the judiciary at Federal and State levels. The supreme law of the land from which other laws derives their validity, extent of operation and efficacy specifically mentioned the National Judicial Council as the only body to be paid the budgetary allocation of the judiciary and conferred with the responsibility of disbursing to the heads of the Courts both at the Federal and States levels subsequently. Why then the illegal usurpation of the power of the NJC? Why rendered NJC incapacitated by enacting FML and setting up SAAC or any implementation Committee or structure? Currently, Nigerians complained about the over bloated size of government and unpaid salaries of public servant yet state government is planning to further create unnecessary portfolios.
It is mind boggling that JUSUN despite its perennial agitation and various Courts pronouncements in favour of judicial financial freedom, would take a detour from the illustrious and legitimate vantage position to being a party to such shameful pact in outright disregard and violation of the provisions of the Constitution. I will be quick to say, the terms of the purported agreement in my humble view is an aberration, anathema, a sabotage of efforts of all stakeholders of this arms of government. The unholy alliance by the Governors, undiscerning JUSUN and PASAN will constitute a veritable springboard for perpetuation of corruption, bureaucracy, nepotism and other vices alike which will further create a bottleneck and ultimately crippled the judiciary system. The verdict of the law on the atrocious usurpation of powers is palpable. The Constitution wears the garment of primary of authority and any law, agreement inconsistent with the provisions of the Constitution shall to the extent of its inconsistency rendered void and of no effect. This is therefore a clarion call to the gatekeepers of the judicial system to rise up against this impunity. To my mind the thorny issue of financial independence of the judiciary is not intractable or complicated as it seems.
The provision of Section 81(3) and 121(3) of the Constitution is sacrosanct and must be complied with to the letter. The governors have no role to play in the welfare, remuneration and conditions of service for judges and other judicial staff on the one hand, the capital and operational expenditure of the judiciary on the other hand. The responsibility is strictly the NJC at the Federal and States levels. The culture of judiciary going cap in hand to the executive to meet its annual expenditure must be a thing of the past. I will hasten to add that the clamour for judicial fiscal independence is not a derogation of the principle of separation of powers, at any rate it is a sine qua non for its preservation Drawing strength from the words of the 7th President of the United States, Andrew Jackson (1829- 1837) “All the rights secured to the citizens under the Constitution are worth nothing, and are a mere bubble, except guaranteed to them by an independent and virtuous judiciary “ To attain true separation of powers and for the greater attainment of democratic principles and effective administration of justice both at the Federal and States level, the judiciary must be completely weaned from the breast of the executive branch of government. The executive Pharaohs must let go of the Judiciary. The financial autonomy of the judiciary is non-negotiable.
• Barr. (Mrs.) Victoria Akah is a Lagos based legal practitioner.
