Hope Rises For Judiciary’s Financial Autonomy

Following the country’s failure to implement financial autonomy for the judiciary, the third arm of the government has had to rely on donations from the Executive to meet some of its infrastructure needs. There is hope on the horizon after a meeting of the Governors Forum and Chief Justice of Nigeria (CJN), Ibrahim Tanko Mohammad, writes ROBERT EGBE.



Chief Justice of Nigeria (CJN), Ibrahim Tanko Muhammad

Lawyers don’t often say what they know about how judges live. But Senior Advocate of Nigeria (SAN) Muiz Banire did last month. In his article “Please save our judges”, Banire shed light on the distressing challenges judicial officers face in their work. He said: “I have seen judges, on the verge of death, being deprived by the Executive of their entitlements for medical treatment simply because such a judge refused to compromise on a matter before him. This certainly cannot augur well for the institution that is supposed to be another arm of government.”

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Banire’s article, like others before it, once again brought the question of the welfare of members of the judiciary to therefore. So did last Thursday’s speech by the Chief Justice of Nigeria (CJN), Ibrahim Tanko Muhammad.

Justice Muhammad warned that the country could suffer if judicial officers were consistently deprived of requisite infrastructure.

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He spoke in Port Harcourt while inaugurating 20 four-bedroom duplexes built by the Rivers State Government as permanent homes for judges of Rivers origin serving in state and federal judiciaries. Muhammad said:

“Lagos and Rivers rank among the most litigious states. The implication is that manpower and materials are perennially stretched far beyond the limit to attend to the large number of cases filed daily.

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“That explains the enormity of work before judges. A good car, shelter and good welfare package are some of those things that can serve as magic wand to bring out the best in them.

“Whenever we deliberately or inadvertently toil with the welfare of judicial officers, we are unconsciously inflicting a debilitating wound on the conscience of the nation.”

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Muhammad’s predecessor, Justice Walter Onnoghen, once lamented that Supreme Court justices were “almost dropping dead” due to overwork.

A retired Judge of the Ogun State Judiciary, Justice Babasola Ogunade, also added his voice when he identified one aspect of the problem in an interview with The Nation.

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He noted that unstable pension was another area of concern for judicial officers nearing retirement.

He said: “My view is that having done your best for the Bench, you shouldn’t be among those going cap-in-hand to ask for your pension. And I think it’s worse here because your earning is tied to the apron string of state executives. They are the ones who will pay you if you have served in the states. I think they are trying to improve upon that now. Most of the time it’s for the governor to say: ‘I don’t have money for pension. We’re struggling to have money’”.

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The condition of the magistracy, which is neither directly constitutionally acknowledged nor enjoys a unified wage structure like judges, is even worse.

A former Chairman of the Ikorodu Branch of the Nigerian Bar Association (NBA), Bayo Akinlade, reviewed the problem of the magistracy in Lagos.

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He said: “A Magistrate in Lagos State is paid about N250,000 per month (no need to state what a President of the Customary Court receives which is less).

“A Magistrate and lower court judge are no less of a judge than a High Court, Court of Appeal and Supreme Court Judge. They all are subject to the same professional and moral standards. The only fundamental difference is the jurisdiction of cases they each handle but they are all lawyers and subject to the same principles.

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“It may interest you to know that the case docket of an average Magistrate in Lagos State is between 300 and 700 or more cases. So, it’s not an issue of the workload.

“It is presumed that 70 per cent of all disputes begin at the Magistrate Court level while more than 80 per cent of all criminal cases are handled and determined at the Magistrate Courts.

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“Lawyers of more than 20 years post-call can be found in the Magistrate Courts while more than 35 per cent of Magistrates have been Magistrates for more than 10 years.

“The remuneration of Magistrates is abysmally poor, the courts they occupy are grossly ill-equipped and they barely have experienced support staff to aid them.

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“In my fight against corruption within the judiciary, I have come to understand the inner workings of the judiciary, the intrigues and the politics that play out.

“From the moment a Magistrate is appointed, he is at the mercy of the system, an unspoken code, never to complain but be ready to do the bidding of their superiors who themselves are under some influences of powerful politicians and others who prey on making the judiciary their personal tool to get whatever they want.”

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Akinlade’s view is interesting, not least because Lagos is, alongside Rivers, Akwa Ibom, and Delta, among a few states, often touted as having exemplary welfare packages for its workers.

16 months without pay?

Whatever issues the Lagos State Magistracy might be facing pale into insignificance when conditions of service of some Magistrates in the Cross River State Judiciary are assessed.

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Last month, 29 Magistrates of the state claimed they were yet to be paid their salaries for 16 months since they were sworn in on February 3, last year.

One of the petitions they wrote was entitled, ‘Save Our Souls’ (SOS), a passionate appeal for urgent intervention over the non-payment of the 29 newly-appointed magistrates in the Cross River State Judiciary for 13 months’

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It was addressed to the Attorney-General and Minister of Justice; Chairman, National Judicial Institute; and the National Chairman, Magistrates’ Association of Nigeria; as well as the Speaker, Cross River State House of Assembly; Attorney-General and Commissioner for Justice; Secretary to the State Government; and Chairman Cross River State Judicial Commission.

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It reads in part: “Sir, we have had instances where many of our colleagues due to this state of affairs have been evicted by their landlord from their accommodation; many of us cannot afford to pay our children’s school fees and, are finding it extremely difficult to even meet the basic needs of our families such as feeding, etc.

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“Sir, our plight is so dehumanising and debasing to the point that we are now virtually and consistently borrowing money and begging family and friends for alms to survive these last 16 horrific months of the non-payment of our salaries. This situation, if not addressed urgently, may lead some of us, though unintentionally to corruption, an epidemic the judiciary and our country is fighting hard to be emancipated from.”

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A spoon-fed judiciary

Several states go to impressive lengths to take care of judicial officers. It is common to hear of governors buying cars for judges and, sometimes, even magistrates.

For instance, last October, Lagos State Governor Babajide Sanwo-Olu donated 50 sport utility vehicles (SUV) to magistrates to enable them discharge their duties. He said officials of the state judiciary needed the vehicles to carry out their functions without hindrance.

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Car donations for judges and magistrates are also regularly carried out in most states, but, few, if any state, has done as much for judicial officers as Rivers.

Rivers State Governor Nyesom Wike said last Thursday that the judiciary would be on a pedestal of efficiency and productivity with the support given to it by his administration.

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Wike spoke during the inauguration of the 20 four-bedroom duplexes.

He said: “There is need to guarantee judicial independence and secure effective administration of justice. These are the overriding consideration for the unprecedented investment we have made in our judicial system.

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“I cannot think of any state government with similar welfare scheme we have made. This will have profound and positive impact on judicial officers. We have moved our judiciary from the valley of neglect to an enviable hilltop of independence, capacity and effectiveness,” he stated.

Wike said the gesture of the state government would end the era when judges retired and had no shelter.

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“Given the constitutional restriction on legal practice, post-legal service years could be miserable for judges who were unable to buy or build their own homes before leaving the service.

“With our policy, the state now bears the full responsibility to providing befitting accommodation for all judicial officers of Rivers State origin beyond their service years for life.

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“The state government spent N6 billion to build, furnish and landscape this estate. The government also reserves the interest to buy back any flat and reallocate to other judges to preserve the exclusivity of the estate for judicial officers alone.

“Twenty-three judges opted for cash payment and have been given the approved N150 million each to build and have their own houses. Cumulatively, the state government disbursed the sum of N3.6 billion to the beneficiaries.

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“The policy covers all former Chief Judges, Presidents of Customary Courts of Appeal, including Justice Peter Agumagu. All retired judges who were in service when the policy was made.  The current Chief Judge of the state will have her accommodation built for her before retirement in May 2021.”

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‘Judiciary not free’

But impressive as these interventions are, it only goes to highlight what stakeholders have long said that they put the judiciary at the mercy of the executive. On paper, the judiciary is the third arm of government, co-equal with the executive and legislature. But, in reality, this is hardly the case.

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Chief Justice Muhammad lamented on September 23, that the judiciary had been made a beggar. He spoke in Abuja at the special court session marking the beginning of the 2019/2020 legal year of the Supreme Court, and the inauguration of 38 Senior Advocates of Nigeria.

His words: “If you say that I am independent, but in a way, whether I like it or not, I have to go cap-in-hand asking for funds to run my office, then I have completely lost my independence. It is like saying a cow is free to graze about in the meadow but at the same time, tying it firmly to a tree. Where is freedom?”

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The implications of this was obvious in the subtle threat of the unpaid Cross River State magistrates, who stated: “This situation, if not addressed urgently, may lead some of us, though unintentionally, to corruption, an epidemic the judiciary and our country is fighting hard to be emancipated from.”

Financial autonomy is key

Experts have long identified judicial financial autonomy as the solution. The efficiency of the judiciary hinges on its independence, which is inextricably tied to its financial autonomy. One key area that financial autonomy would address is remuneration.

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The Nation gathered that remunerations of judges at the federal and state levels have remained static for 13 years.

The desire to uphold judicial financial autonomy led a former Nigerian Bar Association (NBA) President, Olisa Agbakoba (SAN), to file a suit against the Attorney-General of the Federation (AGF), the National Judicial Council (NJC) and the National Assembly in February 2013.

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His suit challenged the methods of appropriating the judiciary’s budget in the Appropriation Bills, as opposed to being a first-line charge paid directly to the judiciary. He contended that this was contrary to the provisions of Section 81(3) of the 1999 Constitution.

“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,” Agbakoba argued in his written address supporting his originating summons.

The Judiciary Staff Union of Nigeria (JUSUN) instituted a similar action against the NJC, AGF and the Attorneys-General of the states in the same year, and also claimed reliefs for the implementation of the financial autonomy of the judiciary at the federal and state levels in accordance with the provisions of Sections 81(3) and 121(3) of the 1999 Constitution. Both suits were decided in favour of the financial autonomy of the judiciary. However, states are yet to comply with major parts of the judgments.

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Seeking a way around the problem, President Muhammadu Buhari, on March 20, inaugurated the Presidential Implementation Committee on Autonomy of the state Legislature and State Judiciary at the State House, Abuja.

Its interim report stated that no state of the federation, apart from the Federal Capital Territory (FCT), had complied with Section 121(3) of the Constitution. The committee’s report tied the non-compliance to the non-availability of uniform modalities for full compliance as obtainable at the federal level. Thus, the report posited that a template, modelled after the framework at the federal level, should be developed to serve as a uniform standard for implementation by the states.

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On May 22, Buhari, in a bid to implement the recommendations, signed Executive Order 10, which sought to establish the financial autonomy of the legislature and judiciary at the state level.

The objective of the Executive Order 10, also known as the Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020, was to enforce the implementation of the 4th Alteration to the Constitution and provide a practical framework for the legislative and judicial arms of state governments to have financial autonomy.

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The 4th Alteration, which amended Section 121(3) of the Constitution, provides that: “Any amount standing credit of the – a) House of Assembly of the state, and b) Judiciary, in the Consolidated Revenue Fund of the state shall be paid directly to the said bodies respectively; in the case of judiciary, such amount shall be paid directly to the Heads of the Courts concerned.”

The order authorised the Accountant-General of the Federation to deduct, from source, the money due to the legislatures and judiciaries of states from the monthly allocations of states whose executives fail to grant financial autonomies to the other two arms of government.

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The order also directed every state government to set up a committee comprising the Commissioner of Finance, the Accountant-General of the state, a representative of the state’s Budget Office, the Chief Registrar of the High Court, Sharia Court of Appeal and Customary Court of Appeal as applicable, the Clerk of the House of Assembly and the Secretary of the State Judicial Service Committee or Commission. This committee is to be accorded legal recognition in the appropriation laws of the states. The committee’s main task is to, where applicable, determine, based on the revenue profile of the state, a workable budget for each arm of the state government.

The Executive Order also provided that each state judiciary is to set up a state judiciary budget committee, which would be responsible for preparing, administering and implementing the budget of the judiciary. The committee would comprise the state’s Chief Judge as Chairman, the Grand Kadi of Sharia Court of Appeal or President of Customary Court of Appeal as applicable, and two members of the Judicial Service Committee/Commission to be appointed by the Chief Judge. The Chief Registrar is to serve as Secretary of the committee.

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Waiting for governors, CJN modalities on financial autonomy

But, following resistance by governors, including a threat to seek legal intervention, Executive Order 10 is yet to achieve the desired impact.

The Nation gathered that none of the 36 states have yet to grant full financial autonomy to the judiciary. However, governors and the CJN are working out modalities towards this.

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Ekiti State Governor Dr. Kayode Fayemi gave an indication of this on August 17, while hosting Nigerian Bar Association (NBA) President Olumide Akpata.

Fayemi, who is the chairman of the Nigeria Governors’ Forum (NGF), said the 36 governors were in support of judicial autonomy.

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The governor explained that he had led a delegation on behalf of the forum to meet with the Chief Justice Mohammad, and the President of the Court of Appeal, Justice Monica Dongban-Mensem, to reach a common ground on the modality for the implementation of judicial autonomy across the states.

“One thing that is a priority to us in the Nigeria Governors Forum is judicial autonomy. All governors are for judicial autonomy, but the contention had always been the modality for implementation.

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“I have met with the CJN and President of the Court of Appeal to work out the modalities for implementation in such a way that will be mutually beneficial. We consider judicial autonomy a critical component of our democratic growth and we must ensure that it happens,” he sai

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[The Nation]

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