By Ikechukwu Nnochiri
The Nigerian judiciary had in the past six weeks, engaged in its longest battle for survival.
It is precisely a month and twenty days since the Judiciary Staff Union of Nigeria, JUSUN, ordered its members across the federation to shut all courts in the country to press home their demand for implementation of financial autonomy for the judiciary.
The union had since April 6, denied judges, lawyers, and litigants, access to all the courtrooms, to protest the continued refusal of many state governors to observe the rule of law and obey court judgments on the issue of financial allocations for the judiciary.
Sections 81 (3) and 121 (3) of the 1999 Constitution, as amended, specifically granted fiscal independence to Federal and State Judiciaries. The financial independence of the judiciary was further reinforced in three separate judgments that were delivered in 2014.
While one of the judgments in a suit marked FHC/ABJ/CS/667/13, was obtained against the National Judiciary Council & Governors of the 36 States, by JUSUN itself, a former President of the Nigerian Bar Association, NBA, Olisa Agbakoba, SAN, also got judgments in Suit No. FHC/ABJ/CS/63/2013, against the NJC & National Assembly, as well as in Suit No. NAD/56/2013, which was against the Attorney-General of Ekiti State & 2 others.
Justice Adebiyi Ademola of the Federal High Court in Abuja (now retired), who delivered judgment in the suit that was filed by JUSUN, on January 13, 2014, held that the government at all levels were bound to obey the provisions of Sections 83(1), 121(3) and 162(9) of the Constitution, which he said were clear and unambiguous.
The court held that “the Attorney-General of the Federation and the states should act responsibly and promptly to avoid a constitutional crisis in this country, by ensuring financial autonomy for the judiciary.”
It ordered that “funds/amount standing to the credit of the judiciary in the Federation Account/Consolidated Revenue Fund of the federal and state governments shall be paid directly to the heads of courts concerned.”
It’s appalling — Justice Ademola
Justice Ademola described as appalling, the situation where the judiciary has to go to the executive, cap in hand, begging for funds for its operations.
He held that the piecemeal allocation of funds, through the states’ Ministries of Finance to the judiciary, at the pleasure of the executive, was unconstitutional, un-procedural, cumbersome, null, void, and should be abated forthwith.
Similarly, the court, in its judgment in one of the cases that was filed by Agbakoba, declared that by Section 81(2) and Section 84 (1), (2), (3), (4) and 7 of the 1999 Constitution, as amended, 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, does not form part of the estimates to be included in the Appropriation Bill as proposed expenditures by the President as is the present practice.
It equally declared 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 Constitution of the Federal Republic of Nigeria 1999, the 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.
It held that such estimates should be sent directly to the National Assembly for appropriation.
More so, the court declared that by virtue of Section 81 (3) of the 1999 Constitution, any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation ought not to be released to the judiciary in warrants or other means or through the Federal Ministry of Finance, the Budget Office, the Office of the Accountant-General of the Federation or any other person or authority in the executive arm as it is the practice at present, but to be paid directly, in whole, to the NJC for disbursement.
It held that the practice of the judiciary depending on the executive arm for the release of its funds was in violation of the Constitution.
It declared that the continued dependence of the judiciary on the executive arm for its budgeting and release of funds, was 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 services delivery and generally low quality and poor output by the judiciary.
Executive Order granting financial autonomy to the legislature and the judiciary
Meanwhile, to show his support for the judgments, President Muhammadu Buhari, on May 22, 2020, signed into law, an Executive Order that granted financial autonomy to the legislature and the judiciary across the 36 states of the federation.
The order mandated the Accountant-General of the Federation to deduct from source, any amount due to state legislatures and judiciaries from the monthly allocation to each state, for states that refuse to comply with the Executive Order.
However, shortly after President Buhari issued the Executive Order, state governors, kicked against it, even as they approached the Supreme Court to void it.
It was their contention that the Federal Government was by the order, attempting to shirk from its responsibilities under sections 6 and 81(3), and item 21(e) of the Third Schedule to the Nigerian Constitution.
The governors noted that the aforementioned provisions saddled FG with the responsibility for “funding all capital and recurrent expenditures of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the states of the Federation of Nigeria, being courts created under Section 6 of the Constitution of the Federal Republic of Nigeria.”
Meantime, despite the suit, the governors, acting under the aegis of the Nigeria Governors’ Forum, NGF, later held a meeting and agreed to work with a committee earlier constituted by the President for the implementation of financial autonomy for state legislature and judiciary.
The governors equally set up their own committee headed by the governor of Sokoto State, Aminu Tambuwal, which subsequently proposed a template for the implementation of fiscal autonomy for the judiciary.
The governors, in their proposal, sought the creation of a State Account Allocation Committee, SAAC, to oversee the distribution of funds to the three arms of government at the state level.
They also proposed the enactment of Funds Management Laws for the state judiciary and state legislature.
The said law, according to the proposal, will grant each arm “the power to manage its capital and recurrent expenditure in accordance with the provisions of Sections 6(5)(a) – (i), 81(3), 121(3) & Item 21(e) of the Third Schedule of the Constitution of the Federal Republic of Nigeria (As Amended) and other relevant laws.”
JUSUN rejects proposal
In a communique that was signed by its Deputy President, Emmanuel Abioye, and its General Secretary, Isaiah Adetola, the union said the template by the governors “violates the Nigerian Constitution and is inconsistent with the resolution reached at a meeting with President Buhari’s Chief of Staff.”
JUSUN said it was concerned that there is the possibility of commissioners of finance under-declaring the revenue of the states if the distribution of funds is left to the state government to handle.
The union, however, expressed its support for the proposed enactment of financial management laws affirming the financial autonomy of the judiciary and the legislature.
As safeguards for the enforcement of the proposed laws, the union, proposed that the laws must make provision for a penalty, in case a state commissioner of finance refuses to declare the total revenue of the state.
It further stressed that the law should also provide “for a penalty upon the accountant general’s failure to pay to the different arms of government what is due and payable to them within seven days of getting the federal allocation.”
JUSUN said it would only call off the strike when the funds meant for the judiciary for the period of October 2020 to May 2021, are “deducted from the federation account and paid to the NJC for onward transmission to the various heads of courts.”
The National Working Committee, NWC, of the union said it agreed that the Accountant-General of the Federation “shall deduct from source from the federation account, the budgetary allocation submitted to him by the 36 States judiciaries in October 2020 and pay some directly to the National Judicial Council, NJC for which the Heads of Courts of the 36 states will be paid, failure to do that, therefore, the strike continues.
“NWC-in-session further agreed that the deduction is effected in May 2021 FAAC and with arrears from October 2020 inclusive.
“NWC-in-session also agreed that if all the above demands are met, it will be a way of showing good faith,” but if it fails, the ongoing industrial action continues, the communique read.
Remarkably, this is not the first time that JUSUN would embark on a strike action to demand compliance with court judgments and the Constitution, by state governors. It will be recalled that the Union had on January 2, 2015, also declared a nationwide strike over the issue of financial autonomy for the judiciary.
The union, however, capitulated after prominent individuals and groups intervened and cited the plight of hapless litigants as well as the general election that was looming at that time.
JUSUN buckled under the pressure and called off its strike on February 24, 2015.
Just like in its previous strike action, pressure is currently mounting on judiciary workers to return to their duty posts.
The Chief Justice of Nigeria, CJN, Justice Ibrahim Muhammad, who earlier threw his weight behind JUSUN, made a volte-face last Tuesday after the Minister of Labour and Employment, Dr. Chris Ngige, paid him a visit at his chambers at the Supreme Court.
The CJN thereafter implored JUSUN to call off their strike action “in the interest of the nation and the larger interest of justice.”
Justice Muhammad argued that calling off the strike would allow for further negotiations towards the resolution of the dispute, even as he noted that some of the issues in contention were already sub-judice.
He said there was the need to give the “requisite legal process enough opportunity to be exhausted.”
While it is not in doubt that many cases have suffered undue delay as a result of the strike action, it is left to be seen if JUSUN will stand its ground this time and insist on total compliance to its sole demand, which is fiscal independence for the judiciary at all levels.