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Autonomy for judiciary: Weighing fresh options and overcoming old challenges

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Olisa Agbakoba

Last week, the governor of Ekiti State, Dr. Kayode Fayemi, announced that all the 36 governors in Nigeria were in support of judicial autonomy or independence. Fayemi, who is the chairman of the Nigeria Governors’ Forum (NGF), said judicial reform remained the engine room of any democracy.

According to him, necessary reforms must be undertaken in the judiciary to promote the rule of law. While hosting the Nigerian Bar Association (NBA) President-Elect, Mr. Olumide Akpata, at his office in Ado Ekiti, the governor explained that he had led a delegation on behalf of the forum to meet with the Chief Justice of Nigeria (CJN), Ibrahim Tanko Mohammad, and the President of the Court of Appeal, Justice Monica Dongban-Mensem to reach a common front on the modality for the implementation of judicial autonomy across the states of the federation.

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“One thing that is a priority to us in the Nigeria Governors Forum is judiciary autonomy. All governors in Nigeria are for judiciary’s autonomy, but the contention had always been the modality for implementation. I have met with the CJN and President of the Court of Appeal on how to work out the modalities for implementation to be in such a way that will be mutually beneficial. We consider judiciary autonomy a critical component of our democratic growth and we must ensure that it happens,” he said.
   
However, when independence of the judiciary is mentioned, most people understand it in terms of being free from external influences. Such overwhelming influences exerted on the judiciary are usually manifest from the executive arm of government, majorly. Although it is normal across the globe for politicians to try to meddle with the activities of the judiciary, strong judicial institutions are also smart enough to ward off such irritations. But most stakeholders believe the judiciary would do better if it succeeds in achieving fiscal autonomy above all other things. 
   
Apart from Governor Fayemi, Nigerian president, Muhammadu Buhari seems to believe in judicial autonomy. This is because, on Friday, May 22, 2020, he signed the Presidential Executive Order No. 10 of 2020. The Order is for the Financial Autonomy of State Legislature and State Judiciary. The intention of the Executive Order is to provide financial independence for the Judiciary and Legislature of the 36 states of the federation. However, there are those who believe that the order was signed by ultra vires of the powers of the president. This is because the president cannot execute an order in respect of state courts and legislature. Those are within the purview of state governors. According to the former attorney general and commissioner for justice in Abia State, Chief Awa Kalu (SAN), the president lacks the power to make such a proclamation. For him, the president is only constitutionally limited to the federal legislature and judiciary. 
   
Those notwithstanding, there are those who believe that financial autonomy for the judiciary has already been provided for by the Constitution. Chinedu Nneke, a Senior Associate at Olisa Agbakoba Legal (OAL) argues: “Unfortunately, Federal and State Executives are breaching it, and the Judiciary having no control over funds automatically becomes the most vulnerable and the biggest victim at both the Federal and State levels. An examination of Part E of the 1999 Constitution of the Federal Republic of Nigeria (the Constitution) relating to powers and control over public funds, will show the constitutional effort to guarantee and secure independent funding of the Judiciary, free from Executive interference and control. Sections 80, 81, and 84 of the Constitution, in particular, give the Judiciary power and control over its own funds.
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“While Section 80 of the Constitution establishes the Consolidated Revenue Fund of the Federation as a pool of national income, Section 80(2) stipulates how monies are withdrawn from the Consolidated Revenue Fund of the Federation. In the words of Section 80 of the Constitution “no money shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the Fund by this Constitution or where the issue of those money has been authorised by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution’. 
   
“In essence, Section 80(2) approves only two ways money can lawfully be withdrawn from the Consolidated Revenue Fund, namely: by direct charge upon the fund, and by appropriation. Part of expenditure charged upon the Consolidated Revenue Fund of the Federation relating to the Judiciary. This is seen in Section 84(4) of the Constitution, which described judicial officers as including Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal.”
   
According to Nneke, to further make it clear that the Constitution wants the Judiciary to be financially independent of the Executive and the Legislature, Sections 81(1) and 81(2) unambiguously exempted all expenditure charged upon the Consolidated Revenue Fund of the Federation from the second mode of withdrawal from consolidated Revenue Fund, which is by appropriation. Section 81(1) provides: “The President shall cause to be prepared and laid before each House of the National Assembly at any time in each financial year estimates of the revenues and expenditure of the Federation for the next following financial year.” 81(2) also provides: “ The heads of expenditure contained in the estimates (other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this Constitution) shall be included in a bill to be known as the Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein.”
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The lawyer argues that if the judicial funds are part of expenditure charged upon the Consolidated Revenue Fund, it goes without saying that the constitution excludes judicial funds from the annual budget estimates of the Executive, which is the Appropriation Bill. In ordinary words, the President, he explained, is not supposed to include funds meant for recurrent expenses, remuneration, salaries and allowances of judicial officers in the Appropriation Bill. “Such funds should be drawn directly from the Consolidated Revenue Fund of the Federation outside appropriation practice,” he stressed, insisting that the only fund relating to the judiciary that is subject to appropriation is the capital expenditure because it is not provided.
   
Nneke maintained that the framers of the Constitution wanted to make the judiciary independent with those provisions, including section 121, which makes similar provisions that guarantee independent funding of the Judiciary at the state level.  “Unfortunately, both the Federal and State Executives breach the clear constitutional provisions for the financial autonomy of the Judiciary,” he lamented.
   
On account of those perceived infractions, former president of the Nigerian Bar Association (NBA), Dr. Olisa Agbakoba (SAN) filed an action against the federal government, represented by the Attorney General of the Federation and the National Assembly in 2013. Although the judgment was delivered against the Federal Executive and the National Assembly on May 26, 2014, the executive has continued in the violation of the clear constitutional provisions relating to the financial autonomy of the judiciary at the federal level.
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Nneke argued that now that the Federal Executive has apparently agreed on the financial autonomy of the other arms of Government (i.e. Judiciary and Legislature), the right thing is to immediately put in place adequate mechanisms to carry out the relevant provisions of the Constitution and not to sign an Executive Order purporting to donate what the Constitution has already provided. This, he said is because, if the Judiciary is allowed to enjoy financial autonomy at the Federal level, as provided by the Constitution, the Federal Executive would have laid a very good example for the States to follow.
   
Reacting to the issues, Dr. Olisa Agbakoba (SAN) said judicial independence is very badly compromised by funding, which is key to assuring that the Judiciary can run independently of the Executive. “I feel sorry and ashamed when governors feel called upon to assemble Judges and “dash” them motor vehicles or erect so-called modern courts in what they, the governors, believe to be their responsibility, when in fact they are simply compromising the Judiciary. So, this has to stop and it’s up to the Judges to claim their constitutionally guaranteed independence,” he told The Guardian. Agbakoba called for the independence of the judiciary, in terms of its yearly appropriation, as against the current case, where the judiciary as the third arm of government, goes to the executive cap in hand begging for money, which it ordinarily should have, being on the first line charge to the Federation Account.
   
He said: “And that is exactly what compelled me to file a lawsuit, to get the judiciary to receive its budget directly and not through the executive.” He called on the Chief Justice of Nigeria (CJN) to lead the crusade, adding that the first line charge on the Consolidated Revenue Fund of the federation means that the judiciary is exempted from government intervention and is not supposed to go to the executive to ask for money. 
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“Actually, the constitution recognises three types of independent funding, the President, who is the head of the executive, the President of the National Assembly, who is the head of the legislature and the CJN through NJC, who is the head of the judiciary. What is envisaged is that all three heads of government send their appropriations to the National Assembly for harmonization. But what goes on now is that NJC sends its budget to the executive, which on its own, capriciously undermines the budget,” he stated.
   
Professor of Comparative Constitutional Law and Federal Governance, Edoba Omoregie said the idea of judicial independence is founded on the recognition that the judiciary is most likely to dispense justice fairly, and without fear or favour, if it doesn’t suffer from external influence by the other (political) branches, which are the legislative and executive, especially the latter. Although the judiciary, he said, is a separate arm of government as enshrined in section 6 of the Constitution, the branch is notoriously weak when pitched against the other branches, most especially the executive branch, which has the tendency to be reckless and domineering. 
   
“The Constitution has provided ways by which each of the branches may check and balance each other. As an institution, any other branch may not check the judiciary, only its officers (judges) who have malfeasance in their offices may. However, over the years, there have been reported cases of inference with the work of individual judges and the judicial institution itself, by the heads of the executive branch or their proxies, with a view to achieving predetermined outcomes. 
   
“There lies the problem, and why lawyers and other stakeholders continue to strongly advocate for judicial independence or autonomy if that word is preferred. There are many ways this interference may be exerted. It could be by offering financial inducements through unofficial largesse, or by outright issuance of threat, or even by blackmail. Therefore, to firmly guarantee judicial independence, these negative acts must be eliminated. This requires having the right calibre of persons manning the headship of the executive branch; having the legislature being alert to call out the executive branch against such interference or other conducts which defeat judicial independence; and implementing the recent constitutional alteration, which empowers the state judicial branch across the federation to be self-accounting, unlike in the past,” he suggested.
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According to Omoregie, the country needs men and women of courage, and unimpeachable integrity to be appointed unto the bench. Unfortunately, the current recruitment process, he pointed out is highly problematic because it has been politicised. In the end, he said, the leadership and members of the legal profession must set the agenda and the tone to make the judiciary more robust in discharging its constitutional and statutory duties to dispense justice. 
   
Former dean, faculty of law, Imo State University, Owerri, Prof. Nnamdi Obiaraeri suggested that there should be a clear-cut constitutional amendment to embody the modalities for its mandatory operation in the Constitution.
   
This, he said, will require a complete reworking or amendment of the relevant provisions of the extant Constitution dealing with the procedure for appointment or recruitment, promotion, and discipline of all cadre of judicial officers in the country and the financial autonomy of the judicial arm of government.
   
In his intervention, the former chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu lamented that it was for the problem of emasculating the judiciary financially, that Dr. Agbakoba sued the federal government and got a favourable judgment for the sector.  “He had sued and got the judgment affirming autonomous funding of the judiciary, which President Buhari sought to implement with Executive Order 10. But how do you speak of judicial autonomy when all over the country, the All Progressive Congress (APC) governors, as well as the Peoples Democratic Party (PDP) governors, are outdoing themselves in suborning the judiciary, with things like used car gifts, lands and houses to them?” he queried. Odinkalu asked whether the judges, upon who the crusade is meant for, want to be autonomous? According to him, if the judiciary wants to be independent, it has to stand up for its institutional and vocational autonomy.
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Contributing to the issue, the Vice-Chancellor, Lagos State University (LASU), Ojo, Prof. Olanrewaju Fagbohun (SAN), said whatever modality would be adopted in freeing the judiciary must involve reviewing the role of the National Judicial Commission (NJC). According to him, States’ Judicial Service Commission could be empowered to solely handle the affairs of the judiciary while the NJC, which is set up to ensure that there is consistent practice, monitors how they operate as an oversight function.
   
“When we over concentrate power at the centre, it becomes a challenge because, by the time NJC is taking petitions from all the states of the federation, there is a limit to how fast they can deal with those petitions, even with the best of will. What I am suggesting is to let us reduce the concentration of powers at the centre. Let us look at those things we saddle the NJC with and how do we ensure that the composition of the NJC is also sufficiently robust to allow it to be able to take a whole lot of decisions in such a way that will give comfort to all. Let the state be able to function to a very large extent in ways that will reduce delay,” he suggested.

Former dean, faculty of law, University of Lagos, Prof Isaac Agbede said in constitutional economics studies such issues as the proper national wealth distribution including the government spending on the judiciary, is controlled by the executive in many transitional and developing countries.

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“Such undermines the principle of checks and balances, as it creates a critical financial dependence of the judiciary. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges – being the most dangerous), and the private. The state corruption of the judiciary makes it almost impossible for any business to optimally facilitate the growth and development of national market economy,” he stated.
   
For the director, Access to Justice, Mr. Joseph Otteh, the Judiciary’s need for independence is self-evident. He expressed hope that the 4th Alteration to the Constitution can help fill a gap in the area of fiscal autonomy – at least at the State level – where this has been a perennial challenge. “The inability of State judiciaries to control the Judiciary’s appropriations has been a constant reference in past debates on the subject,” Otteh said. 
   
He however pointed out that the absence of financial independence is not the reason for the Judiciary’s under-performance. “In fact, some might point out that Nigeria’s Judiciary suffers more from having too much independence than lacking it, within the context of there being so very little by way of accountability of the institution for its exercise of constitutionally guaranteed autonomy. 
   
“Why is the Judiciary, for example, still stuck in 20th Century justice delivery molds and not adapted to the dynamic of the 21st when it is clear that the old is suffocating the administration of judicial justice? What has the Judiciary achieved with budgets that ought to have enabled it to transit from a manual, analog system to a digital system like many developing countries are doing? Why are different divisions of high courts and Courts of Appeal – sometimes even the apex court – speaking with discordant voices of jurisprudence – giving sometimes-conflicting judgments on the same subject matter? Why is the Judiciary not putting Nigeria’s best foot forward in terms of those who it selects to exercise judicial functions?” He asked. Otteh argued that while Nigerians can express concern about judicial autonomy, but more than that, the country needs a Judiciary that is more accountable to the Nigerian people for its use of its very unique powers.
   
Until there are concrete steps by the federal and state governments to implement the provisions of the constitution as it pertains to fiscal independence of the judiciary, all the speeches and seemingly good deeds towards the sector amount to motion without movement. 

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