By Charles Mekwunye, SAN

On the morning of April 6, 2021, we awoke to the news of an industrial strike action embarked upon by the Judiciary Staff Union of Nigeria, JUSUN, in a bid to persuade state governments to implement the provisions of the constitution with regards to the financial autonomy of the judiciary.

The strike action was embarked upon following the expiration of the 21-day ultimatum given by the JUSUN for the judiciary to be allowed to have financial autonomy as stipulated by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

There is increasing acknowledgement that an independent judiciary is the key to upholding the rule of law in a free society. This independence may take a variety of forms across different jurisdictions and systems of law. But the same principle always applies, namely: the protection of human rights is dependent on the guarantee that judges will be free and will reasonably be perceived to be free to make impartial decisions based on the facts and the law in each case; To exercise their role as protectors of the constitution, without any pressure or interference from other sources, or other arms of the government.

This basic premise is crucial to the maintenance of the rule of law. At the same time, laws must be public knowledge, clear in meaning, and must apply to everyone equally, including the government. Unless the government subordinates itself to the law, and to the sovereignty of the people through the constitution, that government may rule by law, but its authority will not be grounded in the rule of law. Rule by law still allows governments to use their power arbitrarily to deny fundamental rights of their citizens, or to cover up their own corrupt practices.

Once citizens lose confidence in the fairness of the legal and political system, they may turn to other means to assert their basic rights, and inevitably results in violence and loss of human life. Most countries in transition from dictatorships recognise the need to create a more stable system of governance based on the rule of law. In fact, rule of law reform in ‘developing’ countries is considered so important that it is becoming a major criterion for international aid.

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But it takes time and patience to turn around deeply entrenched political interests and values. We should be cautious when trying to promote externally-imposed rule of law reform as some kind of ‘elixir’ or ‘panacea’ for all the ills of countries in transition. First, the principles underlying the rule of law must be properly understood and respected by all those who will be affected by the laws. Then, even in well-established democracies, experience tells us that we need to be vigilant to ensure that respect is maintained for the law and for those who administer the law.

Importance of judicial autonomy

The Constitution asserts its supremacy in Section 1(1) where it states that “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” The essence of this provision is to demonstrate its importance in our legal system by asserting itself as the grundnormof the Nigerian society.

The implication of this is that all other laws, policies, authorities, institutions, actions and procedures are subject to its provisions. It has stipulated the manner in which the organs of government should operate and there can be no deviation from its provisions; hence the unconstitutionality of anything to the contrary.

Having stipulated the manner in which the judiciary should be funded, it behoves those responsible for implementing the law to facilitate its application in the prescribed manner. It is pertinent to point out the essence of judicial autonomy to the rule of law in Nigeria. The judiciary is far too sacred to be interfered with and the reason is that it is the last hope of the common man. Each individual, regardless of status, is entitled to have unfettered access to a system that guarantees equity, fairness and justice.

It is imperative that such system remains incorruptible and outside the influence of other powers and authorities. This is the reason the constitution has expressly provided for the judiciary’s autonomy in order for it to have the ability to govern itself and oversee the entirety of its operations.

The judiciary ought to be an institution that enjoys the confidence of every member of the society. It cannot afford to be perceived to be under the influence or control of other authorities since people have recourse to it for justice.

Judicial pronouncements on ‘Autonomy’

There have been a number of judicial pronouncements on the autonomy of the judiciary such as that of the Federal High Court per Ademola J. in Judiciary Staff Union of Nigeria VS. National Judicial Council, the  various  Attorneys -General  of  the  states  and  the  Attorney- General  of  the  Federation where it was held as follows:

“A  declaration  is  hereby  made  that  the   2nd – 74th Defendants’  failure, neglect and/or refusal  to  pay  the  Funds/Amount standing to  the  credit of  the  states’  Judiciary  in the  Federation/consolidated  Revenue  Fund   directly  to  the  Heads  of  courts  in  the  various   states  Judiciary  is  a  constitutional  breach which  has  to  be  abated  forthwith.”

Furthermore, the erudite Senior Advocate, Olisa Agbakoba in his suit against the Attorney-General of the Federation, The National Judicial Council and the National Assembly drew the court’s attention to several International Conventions which re-emphasise the importance of judicial autonomy to show that it is a sacrosanct universal principle of law.

Furthermore, Mohammed J. in the case of Olisa Agbakoba VS The Attorney-General of the Federation, The National Judicial Council and The National Assembly held: “From the provisions of the Constitution of the Federal Republic of Nigeria 1999, it is beyond doubt that funding of the judiciary is governed and guided by constitutional provisions.

The question therefore is, to what extent is the constitutional provision regarding the funding of the judiciary being adhered to? To put the issue differently, is the provision of the constitution being followed in this country with respect to funding of the judiciary? I have no hesitation in answering these questions in the negative.”

Constitutional provisions for judiciary funding

It is imperative to know how the judiciary is funded and in a bid to shed light on this, I would like to draw your attention to Section 81(3)(c) of the Constitution which states that: “The 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.”

It may interest you to know that contrary to this constitutional provision, the judiciary of most states is being funded through states’ ministries of finance. 

Also worthy of note is Section 80(1) of the Constitution which states that: “All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of the National Assembly into any other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the Federation.”

This is to show us that the Consolidated Revenue Fund of the Federation is a special purse for the financing of vital operations of government including activities of the judiciary according to Section 81(3).

A careful study of section 84 of the Constitution would reveal that the remuneration, salaries and allowances of justices, judges, Kadis, the Chairmen and members of the National Judicial Council, the Federal Judicial Service Commission, the Code of Conduct Bureau, the Judicial Service Committee of the Federal Capital Territory, Abuja, and the Code of Conduct Tribunal are meant to be paid to them directly and cannot be negatively altered to their detriment.

These constitutional provisions came about to ensure the independence of the judiciary for a better dispensation of justice.

We cannot continue to operate a system of government where the judiciary remains reliant on the executive. It is important for the judiciary to be self-sufficient and not rely on the executive for its funding. The executive is not in any position to dictate the manner in which the judiciary is to be financed. Thus, the judiciary can no longer remain at the mercy of the executive.

This was the statement made by the JUSUN when it embarked on the strike action that grounded the judiciary system for months; and I am pleased that many state governors have expressed their willingness to implement the provisions of the Constitution with regards to judicial autonomy. Some have also passed bills at their respective Houses of Assembly for the same purpose. These are all steps in the right direction. However, the mere expression of willingness is not enough.

The executive must immediately implement these provisions for the greater good of the common man. They must work alongside the JUSUN to ensure that the relevant constitutional provisions are followed to the letter.

Conclusion

The judiciary must be bold in asserting its independence. Its members must desist from going cap in hand or kowtowing to the executive for funding. The heads of courts also have a responsibility to account for the funds disbursed to them in accordance with the relevant provisions of the Constitution. They must remember that with rights comes responsibilities and there must be proper budgets, budgetary controls and audits.

They must come clean and ensure that the funds are utilised for the purpose for which they are budgeted.

We have heard ‘loud’ grumblings from some judicial officers and administrative staff who complain that their allowances for training, healthcare etc. are either reduced/sliced or not paid at all. Heads of courts should know that all stakeholders, including the press, lawyers, litigators and even the executive and legislature are watching.

In the recent conference on judicial reform in Abuja, the Federal Minister for Justice and Attorney-General called on the judiciary to be transparent and be accountable for the funds placed in their care.

Members of the judiciary in all their dealings must remember that they occupy the most sacred position of all the arms of government and must act in the most professional manner to ensure they have and retain the confidence of the common man at all times.

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