For about two weeks now, courts all over the country are under lock and key. On April 6, judicial workers under the aegis of Judicial Staff Union of Nigeria (JUSUN) embarked on an indefinite nationwide strike to push for the implementation of financial autonomy for the judiciary. The Union contended that the Federal and State governments have, over the years, declined to grant financial autonomy to the judiciary. Truthfully, the lingering closures of our courts and the failure, neglect and refusal of the authorities to implement financial autonomy for the judiciary have far-reaching implications that should give all patriots a cause to worry.
The demands and agitations of JUSUN are valid. My position is premised on the ground that granting financial autonomy to the judiciary is one major way with which the judiciary can be truly independent. Ordinarily, if ours was a true constitutional democracy, the issue of granting financial independence to the judiciary, the arm of government wherein lies the last hope of the common man, should not have arisen. As far as Nigeria is concerned, there is no arm of government greater than the other. Therefore, subjecting the judiciary to the shadow of the executive through financial dependence is to make nonsense of the independence of the judiciary and compromise the course of justice. The only way judicial independence can materialise is to bestow on it financial willpower.
By law, the independence of the judiciary is not only guaranteed, its financial autonomy remains the pillar upon which indirect control and manipulation is resisted. Sections 121 and 81 of the 1999 Constitution of the Federal Republic of Nigeria (as altered) provide succinctly for the financial autonomy of the judiciary. Section 121(3) explicitly provides that “any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the court concerned”. If the Constitution is very clear on an issue, it begs the question why the Governors have chosen to take the path of executive recklessness.
Interestingly, the sacred provisions of the Constitution in respect to financial autonomy of the judiciary have been given judicial blessing by our courts. In cases separately filed by Dr. Olisa Agbakoba, SAN and JUSUN against the Federal Government, the court upheld the financial independence of the judiciary as a constitutional stipulation that cannot be waived or varied by the executive.
Just last year, President Buhari passed Executive Order 10 to see to the implementation of the Financial Autonomy of the State legislature and State Judiciary. While the Executive Order became controversial as a result of some constitutional defects, the Governors blatantly refused to implement it. Suffice it to say that though the good intention behind the Executive Order is acknowledged and appreciated, any defect in it would not affect the position of the Constitution as it relates to financial independence of the judiciary. This is because the provision of the Constitution is supreme; and any Executive Order that tends to ‘implement’ a constitutional provision only confirms the mandate of the Constitution – and does not necessarily validate it.
Flowing from the provisions of the Constitution, the decisions of our courts and the Executive Order No 10 of 2020 elucidated above, it is crystal clear that the refusal to grant financial autonomy to the judiciary by the Governors speaks volume of the level of unconstitutionality, lawlessness and impunity we have to deal with in our country. The Governors cannot cherry-pick what aspect of the Constitution to obey; neither can they set a particular time in which they will obey the Constitution. To put it rightly, the Consolidated Revenue Fund of the State, established under Section 120 of the Constitution, is not a personal property of the executive. It belongs to the executive, legislature and judiciary. So, keeping what rightfully belongs to other arms of government is an abuse.
The offices of the Governors are a creation of the law and those who occupy them cannot continue to whimsically act as though they are above the law. Flagrant violation or breach of the Constitution, like this, is a “gross misconduct” which is a ground for impeachment under Section 188 of the Constitution. Worryingly, the Lawmakers that should initiate the impeachment process have been financially handicapped by the Governors. This supports the ongoing advocacy for the implementation of financial autonomy for the state legislature.
For the faults of Governors who treat our laws with contempt and utter disregard, access to justice have been blocked, human rights are endangered and our civil liberties are periled. For a country where the dispensation of justice takes longer than necessary, the closure of our courts has added insult to injury. How about those whose lives, businesses and liberty depend on a ruling or decision of court scheduled within the striking days? How about the pain of picking a new date in the distant future? The law is that a suspect should not be kept in cells beyond 24 or 48 hours: How about those (unlawfully) arrested and are kept for over a week in terrible detention centres because their bail applications cannot be heard as a result of court closure? The tragedy inflicted by the failure of the Governors to do the needful when necessary can only be best imagined.
In Osun State, for instance, the Police confirmed that the cells have become overcrowded as a result of the strike. This, according to reports, is the case in almost all the states of the federation. I cannot imagine why our precious human rights and civil liberties are set on fire in broad daylight due to the failure of our leadership to adhere to the spirit and letter of our laws. It is a troubling narrative.
He who pays the piper, they say, bears the tune. One who controls the finances controls everything. And our judiciary should not be subject to executive control; not even at this time when judicial intervention is needed to rescue our tottering democracy. The time is ripe for the judiciary to gain financial independence from the illegal dominance of the executive. Our democracy is precious and must be guarded at all cost by ensuring that the sanctity of the judiciary is not unduly infiltrated.
I will like to conclude with the position of senior constitutional lawyer, Dr. Olisa Agbakoba, SAN who brilliantly argued that “the continued dependence of the judiciary on the executive arm of government 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 service delivery, and general low quality and poor out-put by the judiciary.”
