financial autonomy for state judiciary
As the ongoing nationwide indefinite strike by court workers enter the third week, their leaders under the aegis of the Judiciary Staff Union of Nigeria (JUSUN) have resolved not to repeat the mistake of 2015. JUSUN’s National Treasurer, Jimoh Musa said the body has resolved to ensure that this becomes the last time its members would engage in any industrial action over the issue of financial autonomy for the judiciary.
Court workers engaged in a similar nationwide strike on January 5, 2015, following three court judgments, affirming financial autonomy for the judiciary both at the federal and state levels, in accordance with the provisions of Sections 81(3) and 121(3) of the Constitution.
The three cases on which the judgments were given in 2014 were the one filed by JUSUN against the governors of the 36 states and others, marked: FHC/ABJ/CS/667/13, and the two filed by a former President of the Nigerian Bar Association (NBA), Olisa Agbakoba, marked: FHC/ABJ/CS/63/2013 and NAD/56/2013.
As it is currently being witnessed in the ongoing strike, groups and prominent individuals intervened in the course of the 2015 strike and appealed to JUSUN to end its strike, citing the plight of the hapless litigants and other court users.
They also expressed fear about its possible impact on the then-impending general elections, originally scheduled to commence on February 14, 2015. They urged JUSUN to explore other measures to realise its objective.
On January 24, 2015, after a meeting with the then Chief Registrar of the Supreme Court, Ahmed Gambo, JUSUN President, Adamu Marwan announced the suspension of the strike, first in federal courts, which was later extended to state courts. Jimoh said: “We resorted to strike again this time because all the other options have not worked. And, we have realized that the governors are unwilling to comply with the clear and unambiguous provision of the Constitution.
“Our action, this time, is actually directed at the governors, because the judiciary at the federal level is already enjoying financial autonomy y virtue of the provision of Section 81(3) of the Constitution.”
Genesis of the trouble
As part of efforts to strengthen judicial independence, JUSUN and Agbakoba decided to sue in 2013 to seek judicial affirmation of the constitutional provisions on fiscal autonomy for the judiciary both at the federal and state levels.
In a judgement on January 13, 2014, in the suit by JUSUN, Justice Adeniyi Ademola (now retired) held that the provisions of Sections 83(1), 121(3) and 162(9) of the Constitution were clear and straightforward and should therefore be complied with. The judge said: “The Attorney General of the Federation and the states should act responsibly and promptly to avoid constitutional crisis in this country, by ensuring financial autonomy for the judiciary.”
Justice Ademola frowned at the practice where the judiciary often has to beg the executive for funds for its operations and held that the piecemeal allocation of funds, through the states’ Ministries of Finance to the judiciary, at the pleasure of either the executive, was unconstitutional, un-procedural, cumbersome, null, void, and should be abated forthwith.
He added that having regard to the provisions of Sections 81(3), 121(3) and 162(9) of the Constitution “funds/amount standing to the credit of the judiciary in the Federation Account/Consolidated Revenue Fund of the federal and states shall be paid directly to the heads of courts concerned.”
In the judgment in one of the cases by Agbakoba, the court declared that by Section 81(2) and Section 84 (1), (2), (3), (4) and 7 of the Constitution of the Federal Republic of Nigeria 1999 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 also 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 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 to send the estimates directly to the National Assembly for appropriation.
The court also declared that by virtue of Section 81 (3) of the Constitution of the Federal Republic of Nigeria 1999, 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 National Judicial Council (NJC) for disbursement.
It further declared that the continued dependence of the judiciary on the executive arm 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 services delivery and generally low quality and poor output by the judiciary.
The court equally declared that the present practice on Judiciary funding by the defendants which is dependent on the executive arm in budgeting and release of funds is in violation. Till date, it is unknown if the three judgements were appealed, but it is known that they are yet to be complied with by all the state governments, who were the major defendants in the cases.
Before the current strike
After calling off the 2015 strike, JUSUN went back to court to seek to enforce the judgements. Their efforts remained unsuccessful until President Muhammadu Buhari came up with Executive Order 10 in May last year.
President Buhari, on June 7, 2018 assented to the Fourth Alteration Act, which extended financial autonomy to state legislature under Section 121(3) of the Constitution. Before the Forth Alteration, the provision in Section 121(3) was limited to the state Judiciary.
Before the Fourth Alteration, Section 121(3) read thus: “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund shall be paid directly to the heads of the courts concerned.”
With the Fourth Alteration, the section was amended to read thus: “Any amount standing to the credit of the House of Assembly of a state and Judiciary in the Consolidated Revenue Fund 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.”
In his effort to ensure the implementation of the financial autonomy contained in the new Section 121(3), President Buhari constituted a Presidential Implementation Committee on Autonomy of the State Legislature and State Judiciary in March 2019. It was part of the recommendations of the committee that resulted in the President’s issuance of Order 10 on May 20, 2020.
President Buhari, in issuing Order 10, relied on the provision of Section 5 of the Constitution, vesting him with powers in relation to the execution and maintenance of the Constitution.
He said the implementation of financial autonomy of the state legislature and state judiciary will strengthen the institutions at the state tier of government and make them more independent and accountable in line with the tenets of democracy as enshrined by the Constitution.
Executive Order 10
The order, which the president said, should take effect from May 20, 2020, contains sundry provisions, laying out how to achieve financial independence for the judiciary and legislature at the state level.
The first section provides that “allocation of appropriated funds to the state legislature and state judiciary in the state appropriation laws in the annual budget of the state shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge.”
It further provides that: “The Accountant-General of the Federation shall by this Order and such any other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the state legislature and state judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution.”
Section two provides for modalities to be adopted in determining the annual budgets of both arms of government; section three provides for the creation of the State Judiciary Budget Committee and its composition; section four spells out the modalities and template for budget preparation; section five provides for the mode of appropriation, to the effect that “all states of the federation shall include the allocations of the two arms of government in their appropriation laws.”
Section seven of Order 10 provides modalities for its implementation, to the effect that: “subject to Section 8(1) of this Order, implementation of the provisions of this Order shall be carried out by the Presidential Implementation Committee in accordance with its recommendations;
“To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the recommendations of the Committee, as may from time to time be made; this Order shall be implemented consistent with states applicable laws that guarantee financial autonomy of State Legislature and State Judiciary and subject to the availability of funds.”
Upon the president’s issuance of Order 10, state governors kicked against it and queried its constitutional basis. They went before the Supreme Court to commence a case, seeking among others, the voiding of Order 10.
They argued, among others, that by issuing Order 10, the Federal Government was running away from its responsibilities under sections 6 and 81(3), and item 21(e) of the Third Schedule to the Nigerian Constitution.
It is their contention that those provisions saddle the Federal Government 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”.
They added, in a supporting affidavit, that they since May 5, 1999, till January 31, 2020, been expending huge sums in funding capital and recurrent expenditure of the superior courts named in Section 6 of the Constitution, which ordinarily ought to be the responsibility of the Federal Government.
The states argued that the Federal Government has the constitutional responsibility to fund the recurrent and capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the states.
They added that besides the salaries of judicial officers in the states, which are currently paid by the Federal Government through the NJC, the states are made to contend with the responsibility of bearing the capital and recurrent expenditure, which obligation they claim has tremendous impact on their finances and currently accounts for a significant portion of the revenue accruing to the plaintiff states on a continuous basis.
The governors added that some of their capital expenditures include courtrooms, residential quarters, furniture, vehicles, generators and others, while they continue to bear recurrent expenditures in the courts, except for the salaries of judicial officers.
“In the face of continuing and persistent refusal of the defendant (Federal Government) to fulfil its constitutional duty and obligation, the plaintiffs have invoked the original jurisdiction of the Supreme Court to resolve the dispute and determine the respective,” they said.
Shortly after filing the suit, the governors, acting under the aegis of the Nigeria Governors’ Forum (NGF) later met with and agreed to work with the committee earlier set up by the president for the implementation of financial autonomy for states’ legislature and judiciary. They also set up their own committee, headed by Sokoto State Governor Aminu Tambuwal.
Things appeared lull on the activities of both committees until JUSUN commenced its strike on April 6 this year. Workers at the various Houses of Assembly across the country, under the aegis of Parliamentary Staff Association of Nigeria (PASAN) have also embarked on a similar strike.
Efforts to end strike
For the past two weeks, series of meetings have been held, including the one held on April 12 2021, In attendance were the Minister of Labour and Employment, Chris Ngige, representatives of the Attorney General of the Federation and Minister of Justice, the Inspector-General of Police, the Presidential Committee on Financial Autonomy for the Judiciary, the Body of Chief Judges of States, the NJC, the NBA leadership and the leadership of JUSUN.
After extensive deliberations, the meeting was further adjourned till April 15, 2021, in view of the information that members of the NGF, who were not represented at the meeting, planned to meet on April 14.
On April 13, Plateau State Governor Simon Lalong made public the disposition of the governors to the whole issue. He said the states would allow financial autonomy to state judiciary and legislature at their pace and would not countenance Order 10 and what it implies.
Lalong said: “For us the governors, we are saying no. We are going to do the implementation. You don’t need Order 10 to force us to do the implementation. So, we don’t need Order 10. We are already working on the law of implementation because the Federal Government cannot tell us how to implement it.
“We are doing the implementation, but we are not bothered about Order 10. We are talking about the implementation of the financial autonomy law. I was a speaker. We started it in 1999. Today, I am a governor. And I know how the governors agreed and brought in financial autonomy.”
On why the governors were delaying in implementing the law on financial autonomy, Lalong said: “We are not foot-dragging. We were not consulted when the Executive Order came. When you are talking about implementation, you are talking about processes. You don’t wake up and say because a law is passed, it must be applied. There must be processes.
“For instance, as a speaker, I will tell you that you cannot do financial autonomy until you have a Service Commission in place. You must establish a Service Commission; you must establish a State Allocation Committee. And all these are steps towards autonomy. You cannot achieve autonomy in a day.
On April 14, the governors meet at night, without the representatives of the striking workers in attendance. At the end of the meeting around 11.30 pm, the NGF Chairman and Ekiti State Governor Kayode Fayemi elected to be silent on the governors’ position on the issue of financial autonomy for the other two arms of government at the state level.
Fayemi said: “The forum has resolved on a number of issues to take forward, both with the committee responsible for legislative and judicial autonomy, of which we have members that have been representing us.
“Our committee responsible for engaging with the representatives of the legislature and the representatives of the judiciary will meet them tomorrow (Thursday) to convey the position of the governors to them. Well, I am not at liberty to discuss the details of those positions until we’ve discussed them with those that are directly involved in them.”
On April 15, Tambuwal emerged from a meeting with the Chief of Staff to the President, Prof. Ibrahim Gambari, in Aso Rock Presidential Villa, Abuja and other stakeholders, with an assurance that the issues would soon be laid to rest.
He said: “We have just finished talking to the speakers, and indeed the state judges, and the judiciary to continue to engage and the Minister of Labour is also engaging with the striking bodies to appeal to them, to appreciate the fact that we have made progress. They should call off the strike. We are appealing to them in the interest of this country; they should call off the strike.”
Tambuwal noted that the technical committee raised on the matter has made reasonable progress on the implementation of financial autonomy to state judiciary and legislature, adding that the committee would meet again on Monday after receiving the final report of the committee.
Tambuwal said: “We are here with the chairman and leadership of the Speakers Conference, the Solicitor General of the Federation, and Senior Special Assistant (SSA) to Mr. President on Niger Delta, Sen. Ita Enang, who has been a member of the Technical Committee on the implementation of the autonomy of state legislature and the judiciary, together with the Chief of Staff to the President.
“We have just finished a meeting on how to put the finishing touches and dotting the i’s and crossing the t’s on the final implementation of the financial autonomy for state legislature and judiciary.
“We are doing whatever it takes to make sure that the issues are resolved. As I told you before, some of the issues are constitutional and when matters have to do with the constitution, you have to be sure of what you’re doing that you’re actually following the Constitution.”
The Sokoto governors recalled that the process dates back to the Eighth Assembly, insisting that the governors’ are in support of financial autonomy.
“From the very beginning, during the Eighth Assembly, under the leadership of Senate President Bukola Saraki and Speaker Yakubu Dogara, the NGF under Abdulaziz Yari, met with them and supported the financial autonomy for the state legislatures and the judiciary.
“And, that is why, with that support, we were able to achieve the passage of this amendment by the national assembly and the state legislatures across the country.”
More decisive steps
In a statement on April 16, the President of the NBA, Tayo Akpata noted that from the conduct and utterances of some of the governors and their body language, they do not appear to be committed to prompt resolution of the crisis.
“With these developments and the recent actions and utterances of officials of some of the state governments, it has become apparent that most of the state governments are not ready or willing to implement the constitutional provisions which grant financial autonomy to the judiciary,” Akpata said in a statement he issued late on Friday.
He said the NBA, after due consultations with several stakeholders resolved to take more decisive steps in line with the association’s aims and objects and by “effectively playing our role in the defence of the independence of the judiciary which this fight for financial autonomy seeks to achieve.”
Akpata directed all chairmen of NBA branches nationwide to mobilise, beginning from April 19, to visits to their respective state governors at the Government Houses to press home the demand for implementation of financial autonomy for the judiciary.
“At the visit, NBA branches in each state are to present a jointly written demand to their state governor, requesting full compliance with existing legislative instruments and court judgments on the financial autonomy of the judiciary.
“The chairmen of the NBA branches are further requested to ensure that these visits are embarked upon, every subsequent Monday, until there is full compliance with this demand that is aimed at strengthening our democracy and the dispensation of justice.”
How autonomy will work
Enang, in a presentation at an event of the Akwa Ibom State Judiciary said when the autonomy becomes effective the judiciary would not be required, in the real sense, to present its budget before the legislature for appropriation, in line with the judgment in the Agbakoba case.
He said: “Rather, the presentation is for the purpose of determining the amount that the judiciary needs, and such sum is captured as statutory transfer meant for the judiciary and released to the judiciary. The judiciary will then determine the due of each court and office, fund as appropriate and be liberated from the claws of the executive. “
He added that the presidential implementation committee, which he is currently a member, would be required to ensure compliance.
Enang explained that the committee is to ensure that any state that fails to implement the autonomy, the sum due to the judiciary from the federal allocation of that state would be deducted directly by the Accountant General of the Federation and paid directly to the judiciary and the legislature of the state concerned.
He said: “But, the judiciary will have to liaise with the budget office of the state or the finance ministry for the purpose of determining the sum total chargeable as statutory transfer to be approved by the House of Assembly, after which the sum is released to the judiciary and the governor has no approval power.”
Autonomy has come to stay
For the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami and Agbakoba, financial autonomy for states’ legislature and judiciary is a done deal. It is no longer whether, but when it will commence.
Malami made this point at a recent outing in Sokoto State, where he stressed that with the constitutional provision and Order 10, the issue of financial autonomy for judiciary and legislature at the state level was no longer negotiable.
He said: “The essence is the birth of jurisprudential value that guards against manifest violation of our constitutional sacred provisions that guarantee the independence of the judiciary and financial autonomy of the legislature and the judiciary in all forms of Nigerian government.”
Agbakoba simply admonished the governors to comply with the judgment of a Federal High Court that recognised the financial autonomy of the judiciary in order to save the country from imminent chaos.
In an April 11, 2021 letter to Fayemi (in his capacity as the NGF Chairman), Agbakoba said; “A simple way out is for state governors to observe the rule of law and obey judgments of the court. Sections 81 (3) and 121 (3) of the Constitution of Nigeria grant financial autonomy to the federal and the state’s judiciaries.
“President Buhari has affirmed the decisions of the courts by issuing Executive Order 10 of 2020, in the exercise of his powers under Section 5 of the Constitution to ensure execution and maintenance of the constitution which includes enforcement of decisions of the court. state governors should please enforce the decisions of the court and save the country this chaos.”
Benefits of autonomy
The Chief Justice of Nigeria (CJN), Justice Ibrahim Muhammad hinted that governors’ reluctance to allow autonomy for the judiciary was because they fear the effect on the influence they currently wield.
At a meeting with some leaders of JUSUN in Abuja, Justice Muhammad said “ordinarily, I would have said, let me talk to the 36 state governors, which amounts to asking for their favour. But, some of them would ask me to do 10 favours in return. This is why as a judge, I am prohibited from asking for a favour.”
As noted by many, financial autonomy will free the two arms of government from the apron strings of the governors who see themselves as the headmaster, who must always dictate the pace of affairs.
They argue that where funds are statutorily transferred to the judiciary, the legislature and their related bodies as it is currently done at the federal level, will engender a greater level of independence in decision making and operations.
Enang said the autonomy granted will obliterate the harassment which judges and magistrates suffer in the hands of governors who often and now arrange magistrates on rows to present car keys to them from money of the judiciary.
He added that when listing achievements of their administration, such governors mention what he did for the judiciary, “whereas it is just a little part of judiciaries’ money that is sprinkled after humiliating the chief Judge to wait for sometimes over three hours in the governors waiting room just for approval.”