Unbundling Nigeria’s Judiciary
PRESIDENT Buhari recently charged the Nigerian judiciary to “go the extra mile to sanitise itself and improve its capacity to act independently, courageously and tirelessly” while stressing “the financial independence of the judiciary”. That policy pronouncement while propitious can’t be fustian; as Nigeria’s judiciary remains susceptible to manipulation, mostly at the state level. In view of Buhari’s expressed conviction “that law, law-makers, lawyers, law courts and the law enforcement agencies all have pivotal responsibilities to discharge, if the change we seek is ever to materialize,” the President should take the lead in guaranteeing judicial autonomy.
Judiciary Staff Union of Nigeria’s (JUSUN) protracted nationwide strikes speak to problems confronting Nigeria’s judiciary. JUSUN is pressing home its anxiety over the non-compliance by the Federal and State Governments to constitutional dictates on the judiciary’s financial autonomy. JUSUN’s strikes have lingered, because Government is inattentive, indifferent and intransigent. Government is also not evocatively engaged in a dialogue process; rather it seeks what mediators call “red space interaction” that is “mostly heated and adversarial”. There’s no question that the judiciary has its challenges; some systemic and others, self-inflicted. But there’s also no question that the ongoing impasse emanates from the Executive Branch tampering with judicial autonomy via fiscal fiats and subterfuge. State Governors deploy such fiscal control to orchestrate judicial outcomes of a political nature.
The desire to uphold judicial autonomy led to the suit filed by Olisa Agbakoba (SAN), against the Attorney-General of the Federation (AGF), the National Judicial Council (NJC) and the National Assembly in February 2013, challenging extant methods of appropriation of judiciary’s budget, as being contrary to the constitutional provisions of section 81
(3) of the 1999 Constitution. Still, State Governments continue to breach section 121 (3), which stipulate that “any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the head of the courts concerned.” In JUSUN v. FGN (2014), the federal government and the 36 state governors were restrained from appropriating funds meant for the judiciary. Yet, only one-third of the 36 States have instituted full or partial judicial autonomy. In sum, failure to comply fully with provisions of sections 81(3), 121(3) and 162(9) of the 1999 Constitution, translates to Federal and State Governments’ intransigent and willful violation of the Constitution.
The role of the judiciary in any democracy is sacrosanct. The efficacy of the judiciary hinges on its independence; which includes, its doctrinal, operational and financial autonomy. These three components are fungible and inextricably linked. The judicial powers of Nigeria are by virtue of section 6 of the 1999 Constitution vested in the independent courts. Besides being the third arm of the government, the judiciary arbitrates between the Executive and Legislative arms; act as interpreter of the Constitution and is the last resort for those seeking redress. These responsibilities makes the judiciary a very powerful tool of governance; but only if its autonomy is unimpeded. Such responsibilities cannot be treated with levity, thus the proposal that “for Nigeria’s democracy to be meaningful [that] we should embrace this radicalism of judicial review to checkmate the excesses of our legislators.”
Nigeria’s democracy is being consistently strengthened by the judiciary. Yet the vagaries of Nigerian politics have compelled judicial activism, with resultant backlashes. While the legislative and executive branches persist in their penchant of leashing the judiciary through the control the purse strings; the asymmetrical erosion of the independence of the judiciary by means of fiscal fiats occurs mainly at the State level. Ironically, while some court rulings have been to the chagrin of the political leadership, the States have also benefited the most from judicial autonomy. Rulings in landmark cases such as Awolowo v. Shagari (1979); Attorney-General of Lagos State v. Attorney-General of the Federation (2004); Peter Obi v. INEC, et. al., (2007); and Oshimole v. Osunbor (2010), were only possible because of the judiciary’s unfettered independence.
Those seeking to control the judiciary in order to prompt political outcomes also lay claim to some concerns. They accuse some judicial officers of parochialism and upturning popular electoral mandates. Oddly, such allegations are exactly what the Constitution seeks to preempt through judicial autonomy. Irrefutably, rogue and corrupt judicial officials exist. Though in the minority, they have nonetheless tainted the impartiality of the courts. Besides, some courts convey the impression that in law there exist some untouchable interests; while some courts seek to turn judicial review and activism, into judicial supremacy. According to Ben Nwabueze, such disposition explains why the Supreme Court gave two conflicting judgments in Nwodo v. Onoh (1985) and Omoboriowo v. Ajasin (1985) — two cases whose facts were similar. Acceptably, “part of sanitizing the judiciary entails proper funding and making it self-financing.” But more importantly, we need clarity on the role of the judiciary. That role is to “interpret the law; the Constitution included, but not to make law.” All said, the judiciary’s self-induced problems relate to schizophrenic tendencies within the judiciary.
There’s something else. In democracies, the strength and character of an independent judiciary are strikingly similar. Just as Nigerian Supreme Court decided the Awolowo v. Shagari (1979) case, the U.S. Supreme Court also decided the Bush v. Gore (2000) case, which according to experts, “was perhaps the closest the U.S. Court came to choosing partisan side.” Clearly, these were not actions of timid courts. Both outcomes, which strengthened Nigerian and American democracies respectively, wouldn’t have been possible but for courts being resolutely independent and free of encumbrances from the Executive and Legislative branches. The 1999 Constitution offers clarity on the devolution of powers and the funding of the judiciary. A judiciary that enjoys autonomy is a critical national asset, disposed to “minimizing corruption and parochial interest, protection of democracy, reduction of judicial delay and barriers to decisions enforcement.” For these reasons, the Nigerian judiciary must be shielded from partisanship.
From a policy perspective, the extant budgetary modalities used for appropriating funds to the judiciary conflicts with the 1999 Constitution. The modalities undermine the intended insulation of judicial officers from partisan inducements. President Buhari’s Fiscal Year 2016 Draft Budget, his first, offers him a unique opportunity to unbundle judicial appropriations from those of the Executive Branch as envisaged in section 81(3) of the Constitution. Rescuing the judiciary will require two Executive measures. First, the President should issue an Executive Order directing the immediate implementation of the JUSUN-FGN Memorandum of Understanding of November 27, 2014. Second, the President should include specific narratives in the FY 2016 Draft Budget, for disbursing funds directly to the judiciary. The narratives should compel the Federation Account Allocation Committee (FAAC) to delineate funds due to the judiciary and disburse them accordingly; compelling States to do likewise. With these, the President will affirm his commitment to a stronger, independent, courageous and tireless judiciary.
• Obaze is a public policy adviser and immediate past Secretary to the Anambra State Government.