EXPLAINER: What financial autonomy means for judiciary and how it affects you

It has been 51 days since the Judiciary Staff Union of Nigeria (JUSUN) shut all courts across the nation in protest against the non-implementation of financial autonomy for the judiciary.

Since the strike which started on April 6, activities of the court have been crippled with litigants bearing the brunt of the action.

But why is financial autonomy important for the judiciary?

The judiciary is the third arm of government in Nigeria which is responsible for the interpretation of laws. The other two are the executive and the legislature.

The judiciary is the guardian and protector of fundamental human rights as well as the arbiter of disputes among all levels of government. This is why the judiciary ought to independent so as to be free to perform its functions without fear or favour. This is the primary goal of separation of powers — to enable the three arms of government to be functionally independent of each other.

But despite the constitutional provision, the judiciary is still dependent on the executive (governors at the state level) for their funding.

President Muhammadu in May 2020 signed an executive order granting financial autonomy to both the judicial and the legislative arms of government.

The president’s decision was met with commendation, especially from the judiciary but state governors expressed concerns over its constitutionality and financial implications.

The gazetting of the order was, however, suspended after the president met with the governors.

HOW IS THE JUDICIARY FUNDED?

It is important to understand how the state judiciary in Nigeria currently operates.

The judiciary is funded through the state ministry of finance.

Explaining how it is being funded by the ministry of finance, Jimoh Alonge, treasurer of the union, told TheCable that “as a chief judge of a state, you don’t have right over employing or replacing workers even if you are short of manpower. It is the governor that does that. Judiciary workers salary is prepared in the state ministry of finance. Meaning if a staff dies or retires, they just remove his name from the payroll. There is a state presently that had about 2000 or more workers but as we speak, they have just about 600 workers because the state government did not allow them to replace workers.”

CONSTITUTIONAL PROVISIONS

A lot of people think the Executive Order 10 gave birth to the clamour for financial autonomy for the judiciary. But financial autonomy of the judiciary has been in the Constitution of the Federal Republic of Nigeria since 1999.

This is clearly stated in section 81(2) (3), section 84 (1), (2), (3), (4) (7), 121(3) and section 162(9) of the constitution.

The constitution clearly states that any 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.

LEGAL ACTION BY JUDICIARY STAFF UNION OF NIGERIA (JUSUN)

In 2013, JUSUN instituted a suit marked: FHC/ABJ/CS/667/13 against the National Judicial Council (NJC), the attorney-general of the federation and the attorney-generals of the states seeking judicial autonomy.

On January 14, 2014, Adeniyi Ademola, judge of a federal high court in Abuja, gave judgment in favour of the union.

Among the reliefs granted, Ademola made “a declaration that the 2nd-74th defendants’ failure, neglect and/or refusal to pay the Funds/Amount standing to the credit of the States’ Judiciary is a constitutional breach which has to be abated forthwith.

“That an order is hereby made that the piece-meal payments/allocation of funds through the states’ ministry of finance to the state’s judiciary at the 2nd-74th defendants pleasure is unconstitutional, unprocedural cumbersome, null, void and be abated forthwith.”

The judge also made an order mandating the 2nd-74th defendants to comply with the provision of section 162(9) of the 1999 constitution in the disbursement of funds to the head of courts forthwith.

FINANCIAL AUTONOMY JUST FOR JUDGES?

Alonge said: “If there is autonomy, it covers everyone in the judiciary.”

“When you make a budget, you have capital and recurrent. The recurrent comprises salaries of workers and overhead cost of running the courts. The capital includes financing projects, buying cars and some other things. Autonomy is not only for the judges. In fact, the control of these funds is directly by the chief registrar of a state who is the chief accounting officer. The judges don’t even touch money. The CJ can only give instructions on what to do. He is not a signatory to the account.”

STATES THAT HAVE IMPLEMENTED AUTONOMY

Since the commencement of the strike, some state governors have come out to declare their support for a financially independent judiciary.

While Bala Mohammed, governor of Bauchi, and Babajide Sanwo-Olu, governor of Lagos, promised to implement autonomy for their state judiciary, Nyesom Wike, governor of Rivers, and Abdullahi Ganduje, governor of Kano, said their state judiciary already enjoy full autonomy.

Recently, Ifeanyi Okowa, governor of Delta, also announced that the state’s judiciary has been accorded full autonomy.

But JUSUN disagrees.

Alonge said: “No state has implemented autonomy for the judiciary.”

“Okowa’s pronouncement is just a pronouncement. It has not been put into practice. All the judiciary except Anambra and Nasarawa state that allows the judiciary prepare their finance before the state house of representatives, it is the state ministry of finance that prepares their salaries.”

“So we can say Anambra and Nasarawa state has partially complied. But all other states have just been making noise.

“Some governors claim that because they buy vehicles for judges, or sometimes give money for them to go abroad for treatment which is naturally supposed to come to them directly, they now claim to have complied with autonomy. That is not autonomy at all. Autonomy means total independence financially.”

PROPOSAL BY GOVERNORS’ FORUM

There have been meetings with relevant stakeholders in an attempt to bring an end to the strike.

The Nigeria Governors’ Forum (NGF) set up its own committee headed by Aminu Tambuwal, Sokoto governor, which subsequently proposed a template for the implementation of 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 state judiciary and legislature.

The 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”.

The NGF said they will ensure that the states “pass and assent to the funds management law as well as put in place implementation structures within a time frame not exceeding 45 days from the date of signing this document”.

JUSUN has, however, rejected some of the proposals made by the NGF.

The national working committee (NWC) of the union insisted that funds due to the state judiciary must be deducted from source starting from the May 2021 Federal Account Allocation Committee (FAAC) revenue.

The union said the strike will be called off if that is done.

HOW DOES IT AFFECT ME?

One may ask: “How does financial autonomy for the judiciary affect a common man?”

The absence of financial autonomy has made it difficult for some judges to be impartial in handling cases that involve the executive (governors). They are at the mercy of these governors because they determine their finance. After all, ”he who pays the piper, dictates the tune”.

If autonomy is granted, judges will be free to carry out their responsibilities without fear or favour. Election petitions could be determined on merit, justice may no longer be for the highest bidder.

A taxi driver may not be denied bail because a judge received a bribe. And judges will fairly try politicians standing trial on fraud allegations without fear.