By Henry Ojelu & Onozure Dania
As the strike action embarked on by Judiciary Staff Union of Nigeria, JUSUN, to demand financial autonomy for the judiciary enters day nine, some Senior Advocates of Nigeria, SANs spoke on JUSUN’s position and what the state governments must do.
Judiciary must be emancipated now— Ozekhome, SAN
Rights activist and lawyer, Mike Ozekhome expressed support for the ongoing JUSUN strike, insisting that the judiciary must be emancipated now. He said: “Autonomy as prescribed by the Constitution, is the goal of the JUSUN strike. No more, no less. This was why I supported President Muhammadu Buhari’s Executive Order which had ordered direct payments to Heads of Courts for disbursements. Though appearing then otiose and superfluous, having been duly and fully provided for in the 4th Alteration to the 1999 Constitution, I still supported it. Why should Governors waylay, like armed bandits, funds meant for the Judiciary on a first-line-charge? Where is the hallowed doctrine of separation of powers, checks and balances, as ably propounded by the great French Philosopher, Baron de Mintequieu, in 1748? “Do the Governors still want to prove Alexander Hamilton right in his over 200 years old treatise in his Federalist Paper no 78, to the effect that the Judiciary is the weakest of the three arms of Government, because it possesses neither purse nor arms to enforce its judgment?
JUSUN should stand by its rights, nay the rights of the entire Judiciary. We may suffer some inconveniences for a while, but after darkness comes dawn. The cliché remains, no pain, no gain. It’s a worthwhile struggle for the full emancipation, independence, integrity and credibility of the Judiciary, the last hope of the common man.
“The issue of managing the judiciary funds in such a way as to avoid corruption can always be dealt with at the appropriate time. In any event, there are checks and balances. For now, let us first get to the bridge before crossing it. Let us first drive away the fox before blaming the fowl for wandering too deep into the forest.”
Strike should be supported—Ojukwu, SAN
Professor Ernest Ojukwu, also expressed support for JUSUN, saying it is dangerous for the judiciary to continue to beg for fund from the executive. He said: “JUSUN should be supported by all Nigerians to solve this problem of financial autonomy for the Judiciary especially at State levels. The fight by JUSUN is actually a fight that should have been undertaken by the Nigerian Bar Association long before now. It is saddening and disappointing to hear that the Bar had been persuading JUSUN to call off the strike at the Federal level.
The NBA call is self serving and a set back to the advocacy for the independence of the judiciary which the Bar has for long been pretending to fight for. “Whenever there is civil action against mis-governance and what the State Executives have been doing with the judiciary is mis-governance at the lowest level, there is bound to be some inconvenience even for those being fought for. The inconvenience is usually temporary and no matter how long it may take, our eyes should be on the ball and win this fight once and for all times. “At the same time we must also begin a robust discussion with the judiciary on how accountability and transparency must be practiced by them when the fight for financial autonomy is won. I believe that our judges especially the Chief Judges should not be exposed to the opportunity to be corrupted by the financial processes. They should focus on the task of adjudication hundred percent and independent court administrators should be appointed to manage the courts and their funds. Each state should enact such judiciary financial autonomy accountability law that creates a procurement committee and that grants powers to an administrator to manage the funds. Such an administrator cannot be removed from office except with the two-third votes of the legislature. Chief Registrars should also not be accounting officers for the judiciary. Chief Registrars have enough work as quasi judges managing the pure administration of justice and its processes.”
Executive Order 10, an admission of impunity — Erugo, SAN
Another Law Professor, Sam Erugo insists that Executive Order 10 signed by President Muhammadu Buhari in 2020 is an admission of impunity by state governments. He said: The strike action by JUSUN seems justified under Industrial law-as strike action, is a weapon of negotiation and ultimately enforcement, and usually employed when reason and other negotiations fail. There is no argument that the government of Nigeria, including the states, is constituted by three arms-the Executive, Legislature and Judiciary. The Judiciary, unfortunately conservative, is the weeping arm that must go begging the other arms for her due as an arm of government. This is not acceptable as it makes independence of the Judiciary a hoax.
Section 81 of the Constitution, provides that: “any 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 states under section 6 of the Constitution”. For the 36 states of the Federation, Section 121 similarly 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 courts concerned.”
What is difficult in implementing these provisions of the Constitution, in same manner as done for the other arms of government? Apart from collective bargains and previous strike actions by JUSUN, there are judgments of court that the governors have with impunity refused to obey. Of course, the President’s Executive Order 10 of 2020 is an admission of impunity in the face of lawlessness. Since the Judges are conservative and cannot openly complain, it makes sense that JUSUN should take the lead as workers.
They need the support of all those who wish to see an independent and well-funded Judiciary.
Financial autonomy may become booby trap if… —Babatunde, SAN
Publisher of Supreme Court Law Report, Layi Babatunde, SAN, cautioned that the judiciary must be ready to meet the demands of financial autonomy when it comes into play, otherwise, it may become a booby trap to which many high ranking judicial officials may succumb through anti-corruption agencies. He said, “Absence of financial autonomy for the judiciary opens a shadowy window for the executive, to rig the process and enforce their Will, through undue patronage by the bench. The system we are operating now is a typical example of fraudulent benevolence by the Executive. It is humiliating, watching governors’ hand over car keys to Judges, in the full glare of TV cameras! This is antithetical to good justice delivery and highly objectionable to all lovers of justice and fair play. Equality of all before the law, abhors strong arm tactics through the purse. Executive Order 10 of 2020 is a good starting point. Appropriate Legislations should be put in place at all levels to give it teeth and create safe guards.
However the point must be made, that the judiciary itself must be ready to meet the demands of this new regime when it comes into play, otherwise financial autonomy may become a booby trap to which many high ranking judicial officials may succumb through anti-corruption agencies, firmly in the hand of the executive. “As appealing as the cause of judicial workers is, for litigants and counsel, shutting the courts at this time, is a double tragedy that must not be allowed to persist. Every litigant or accused deserve their day in court. To make matters worse, judges are unable to access their Chambers to perform some other judicial duties, apart from sitting in open court. Government should do all that is necessary, to bring this impasse to an early and happy ending .”
Constitutional provision on financial autonomy not practicable — Pedro, SAN
Former Solicitor General of Lagos State, Lawal Pedro is of the opinion that present constitutional provision of financial autonomy for the judiciary is not practicable. He said: “Financial autonomy to a body in my understanding is the freedom to generate revenue within its assigned sources, allocate its financial and material resources, determine and authorize its annual budget without external interference. I have my doubt if this is realisable in the present constitutional arrangement in Nigeria by the judiciary. “In my view the provisions of the present constitution of Nigeria on financial autonomy to the judiciary is fluid and inadequate for purpose of implementation because it provides that “money standing to the credit of the judiciary” shall be paid directly to the judiciary. The question is when can it be said that an amount is standing to the credit of the judiciary? Is it when it is budgeted for and approved or when the amount is available to be released having regard to the relevant government budget implementation. This underscores the need for an amendment of the 1999 Constitution of Nigeria to ensure financial autonomy for the Judiciary to deliver effective and efficient administration of justice. In the meantime I will advocate for increase in Budget Envelope for the Judiciary both in the Federal and States.
FG should deduct from fund of recalcitrant states —Ahia, SAN
On his part, Ken Ahia says that the federal government ought to have disciplined recalcitrant states by deducting judiciary fund directly from their accounts. Expressing support for JUSUN strike, Ahia said: “I believe it is appropriate for the judiciary to have financial autonomy because, without financial autonomy, all other kinds of autonomy may just be a hollow ritual. So the strike has a laudable objective but it is also regrettable that we don’t seem to achieve anything without strike. In my view, what the Federal Government ought to have done, given the seeming recalcitrance of the states, is to deduct the fund for the judiciary of every state and hand them directly to the judiciary for utilization.
“As for managing the fund to curb corruption, I am a bit surprised because the executive branch gets its fund just like the legislature. That is to say, these branches of government manage their fund. How have they been doing it without corruption? Budgets of the judiciary are approved by the legislature and much of the funds are tied to specific heads. The judiciary, like other arms, ought to have internal mechanisms such as internal auditors. The accountant general, where he is not satisfied, can also call for audit annually or periodically to ensure that waste or corruption is minimized.”
AuGF, state Assemblies responsible for judiciary’s financial problem —Ozoani, SAN
Emeka Ozoani, SAN, blamed the inability of state judiciaries to get their funds on the Accountant General of the Federation and State House of Assemblies. He said: “The Accountant General of the Federation and State House of Assemblies are the cause of the problem we have in the judiciary. The Executive through the accountant general mans the federation account. The AuGF ought to know what the state house of assemblies and the joint allocation committee of the state for the judiciary has agreed as their expenditure for the year. The onus is now on the accountant general to make a direct transfer to the state judiciary. If financial autonomy is not granted to the judiciary as being demanded by JUSUN, the governors will continue to hold judges to ransom and I can assure you that the next general election will be crazy and judgments will be flying everywhere.
“I just pray that the leadership of JUSUN will remain adamant on their demand and refuse to yield any ground. If they are determined, I can assure you that government will back down because what they are fighting for is a constitutional provision. They are not begging government to make a new law. What they are demanding is the rights of the judiciary arms of government. I know a lot of cases have suffered setback, but it is important that we do this once and for all. The question about timing of the strike is really inconsequential. Agreed that the judgment for judiciary autonomy upon which they are basing their strike was delivered was in 2014, but I think they have also endured enough.
If we want quality judgments, then let us get it right now. Let the judgment be fully implemented and let judiciary manage their own affairs.”
Judicial independence cannot be measured by money alone— Adegboruwa, SAN
Rights activist, Ebun-Olu Adegboruwa, cautioned that judicial independence should not be measure by money alone. Appraising the JUSUN demand for financial autonomy, he said: “The executive order signed by the President is critical because it goes to the very root of the many problems associated with justice administration and the seeming docility and ineffectiveness of state legislatures. “No matter the quantum of the amount of money released, the judiciary should have the power to determine its budget and spending, to prioritize its commitment level, all targeted at delivering justice to the people. The appeal then is to the Governors of the States, to work together with JUSUN, NBA and the federal government to empower the judiciary financially, once and for all. This should be the focus of the various meetings being convened to resolve this imbroglio. “It is my belief however that judicial independence cannot be measured by funding alone, but also in the willingness to obey and abide by all decisions and orders of the courts.
The integrity of the judiciary is better achieved through willful obedience to the orders and directives of the courts. In this regard, so long as judges are living under some mortal trepidation of persecution on account of their decisions, as long as we still require persuasion to get the executive to obey court orders, then the judiciary cannot be said to be independent, no matter the amount of billions of naira thrown at the courts. “My charge to the President is to extend the executive order to include compulsory obedience to all lawful orders issued by the courts and to prohibit any form of harassment or intimidation of judicial officers, however subtly it may come. When this is achieved, then we can truly say that the judiciary is autonomous and independent.”
