Why The Courts Are Locked…

By Ebun-Olu Adegboruwa SAN

The past one week has been very challenging for judges, lawyers
and litigants alike, as the court system became paralysed all over
the nation, due to the ongoing industrial action by the Judiciary
Staff Union of Nigeria, JUSUN, over its demand for financial
autonomy for the judiciary.

It’s been a very delicate rope for lawyers to navigate through,
being a matter of choosing between the devil and the deep blue sea.
If lawyers support JUSUN for the strike to continue, they lose
revenue and slow down the progress of their cases and if they
oppose the strike, then their ‘sufferings’ will continue and the
executive arm of government will keep trampling upon the
independence of the judiciary. Whichever option they choose, the
courts are locked for now, until further notice. So, why are the
courts locked?

Though JUSUN had given notice of its proposed strike action
since March 13, 2021, nothing was done by the government to address
the notice, leading to the closure of the courts from Tuesday,
April 6, 2021.

The JUSUN Task Force was all over the courts to enforce the
strike by closing all the entrance gates of the Court of Appeal,
the Federal High Court, the National Industrial Court, the High
Court and indeed the Magistrate’s Courts, in Lagos State.

Reports monitored from other parts of the country indicate
successful implementation of the strike action by other state
branches of JUSUN.

What really is the grouse of JUSUN? Financial autonomy for the
judiciary, total independence for the third arm of government and
commitment by the executive arm to obey the tenets of the
Constitution as it concerns the judiciary. This is not rocket
science, is it?

Expectedly, there are divided views on the JUSUN strike.

While some lawyers feel it is counter productive, to punish
litigants and lawyers for the sins of the executive arm, some
others have expressed the view that strike action being a
recognised tool in industrial relations, JUSUN is perfectly in
order to deploy it as a veritable tool to get the attention of all
concerned. It is noteworthy that virtually all segments of Nigeria
are or have been on strike; from doctors to electricity workers,
university and polytechnic teachers, the non-academic staff, aides
of legislators and even security men.

The general view in this regard is that strike is the only
language that can arrest the attention of those in power, though
this is very unfortunate. As it has played out in the JUSUN and
other strike actions, government officials, through their
utterances and actions, all seem to confirm the potency of strike
actions as the only means of bringing government to the negotiation
table. What really is the case for financial autonomy for the
judiciary?

Section 80 (1) of the Constitution established the Consolidated
Revenue Fund for the Federation, from which funds can only be
withdrawn either to meet expenditure that is charged upon the fund
by the Constitution, or through appropriation. Under and by virtue
of section 81 (3) of the self-same Constitution, the amount
standing to the credit of INEC, National Assembly and the Judiciary
in the Consolidated Revenue Fund shall be paid directly to the
National Judicial Council for disbursement to the heads of Courts
established for the Federation and the States. Section 84 (2)
specifically states that remuneration, salaries and allowances
payable to judicial officers shall be a charge upon the
Consolidated Revenue Fund of the Federation. INEC and the National
Assembly have pursuant to these foregoing provisions, freed
themselves from the stranglehold of the executive, through direct
control of their budget estimates, leaving the judiciary behind and
under executive captivity, as it were.

The struggle has then been to bring the judiciary at par with
the other arms of government, resulting in several court actions
and judgments, all of which have not been obeyed by the executive
arm. This is what has led to the current strike action by
JUSUN.

I verily believe that the JUSUN strike action is for the benefit
of lawyers, judges, litigants and indeed the legal profession at
large, as a way of addressing the real issues, once and for
all.

However, the other concern of all stakeholders is the dimension
and timing of the strike action.

With COVID 19 ravaging the effectiveness of justice
administration, coupled with the wanton looting of and arson upon
the Courts in some parts of the country during the EndSARS
protests, a strike action in the midst of Easter holiday, is seen
as an overkill, especially for the masses, whose hope is the court,
as the last bus-stop for redress.

The ready answer to this is that nothing good comes easy, if we
compare the pains of childbirth and the joy of delivery, then the
appeal would be for all stakeholders to endure the pains in order
to enjoy the gains.

The other argument is whether JUSUN should compartmentalise the
strike between the federal and state judiciaries, since the federal
government has substantially complied with the main constitutional
requirements in respect of financial autonomy for the federal
courts. This argument resonates with me, for the reasons stated
hereunder.

Like a lone ranger on a mission, the President started a
seemingly silent ‘revolution’ to grant autonomy to the legislature
and judiciary of the states. It is a commendable development by the
Muhammadu Buhari government, coming in the midst of its many
challenges. It started with the 4th Alteration to the Constitution
of the Federal Republic of Nigeria, which was initiated by the
Saraki-led National Assembly. As a way of overcoming this
monumental constitutional challenge, a Bill was passed by the
National Assembly, granting financial autonomy to the judiciary and
the houses of assembly of the States, in 2017. In June 2018, the
President assented to the said Bill and it became part of the laws
of the Federal Republic of Nigeria. Even after that, the state
executives would not budge. The President then decided to set up a
22-man Committee known as The Presidential Implementation Committee
on the Autonomy of State Legislature and Judiciary, with the
Honourable Attorney-General of the Federation as the Chairman. The
mandate of the Committee was to ensure the full implementation of
the 4th Alteration to the Constitution and thus free these
important sectors of our democratic experiment, from the
stranglehold of the executive arm. As a follow up to this, the
President signed an executive order, to give effect to the 4th
Alteration. Many hold the view that it is ultra vires the President
to seek to tinker with the revenue of the states or dictate how
they are to be disbursed.

In view of the clear provisions of sections 80-84 of the
Constitution, I humbly beg to disagree with this view. Though
Executive Order 10 may be superfluous to the extent that the 4th
Alteration is already in place, the President is nonetheless
empowered to enforce the Constitution as directed under section 121
(3) thereof.

The judiciary is empowered by the Constitution to entertain and
determine disputes between persons and persons, between persons and
government and between governments and governments. The conflict
margin is more on the executive-judiciary angle because of the
obvious and excessive impunity of the executive arm, especially the
law enforcement agencies.

The general thinking of most governors is to cage the courts and
starve the judiciary of funds, as a means of rendering it
ineffective, so that lawlessness can thrive unchallenged or where
challenged, unchecked.

Most governors are therefore not comfortable with a viable and
independent judiciary, which they dread as a veritable tool in the
hands of the people, to challenge and overturn all manner of
excesses.

Through the office of the Attorney-General and Commissioner for
Justice of the various states, the executive governors have
perfected the style of holding the judiciary captive, starving it
of needed funds and infrastructure. So, in most cases, the
judiciary is forced to go begging cap in hand for funding. And
assuredly as we all know it, he who pays the piper calls the tune.
This was the very ugly scenario before the ‘revolution’ of the 4th
Alteration to the Constitution, seeking to free the legislature and
the judiciary, from the very firm grip of the executive.

By the bold and innovative provisions of the Financial Autonomy
of State Legislatures and State Judiciaries (Fourth Alteration,
No.4) Act of 2018, the road was cleared for the funding of the
Houses of Assembly and Judiciary of the states, directly from the
Consolidated Revenue Fund of the States. The Act then amended the
existing section 121 (3) of the Constitution by stating that “any
amount standing to the credit of the House of Assembly of the State
and the Judiciary, in the Consolidated Revenue Fund of the State
shall be paid directly to the said bodies respectively; in the case
of the judiciary, such amount shall be paid directly to the heads
of the courts concerned.”

In order to actualise the letters of 4th Alteration, the
President thereafter issued Executive Order 10, authorising the
Accountant General of the Federation to make direct transfers from
the Consolidated Revenue Fund, to the bank account of the judiciary
of the States. Some States like Bayelsa and Delta have since passed
their own municipal legislations, granting financial autonomy to
the judiciary.

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 prioritise 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.

By Ebun-Olu Adegboruwa SAN

The past one week has been very challenging for judges, lawyers
and litigants alike, as the court system became paralysed all over
the nation, due to the ongoing industrial action by the Judiciary
Staff Union of Nigeria, JUSUN, over its demand for financial
autonomy for the judiciary.

It’s been a very delicate rope for lawyers to navigate through,
being a matter of choosing between the devil and the deep blue sea.
If lawyers support JUSUN for the strike to continue, they lose
revenue and slow down the progress of their cases and if they
oppose the strike, then their ‘sufferings’ will continue and the
executive arm of government will keep trampling upon the
independence of the judiciary. Whichever option they choose, the
courts are locked for now, until further notice. So, why are the
courts locked?

Though JUSUN had given notice of its proposed strike action
since March 13, 2021, nothing was done by the government to address
the notice, leading to the closure of the courts from Tuesday,
April 6, 2021.

The JUSUN Task Force was all over the courts to enforce the
strike by closing all the entrance gates of the Court of Appeal,
the Federal High Court, the National Industrial Court, the High
Court and indeed the Magistrate’s Courts, in Lagos State.

Reports monitored from other parts of the country indicate
successful implementation of the strike action by other state
branches of JUSUN.

What really is the grouse of JUSUN? Financial autonomy for the
judiciary, total independence for the third arm of government and
commitment by the executive arm to obey the tenets of the
Constitution as it concerns the judiciary. This is not rocket
science, is it?

Expectedly, there are divided views on the JUSUN strike.

While some lawyers feel it is counter productive, to punish
litigants and lawyers for the sins of the executive arm, some
others have expressed the view that strike action being a
recognised tool in industrial relations, JUSUN is perfectly in
order to deploy it as a veritable tool to get the attention of all
concerned. It is noteworthy that virtually all segments of Nigeria
are or have been on strike; from doctors to electricity workers,
university and polytechnic teachers, the non-academic staff, aides
of legislators and even security men.

The general view in this regard is that strike is the only
language that can arrest the attention of those in power, though
this is very unfortunate. As it has played out in the JUSUN and
other strike actions, government officials, through their
utterances and actions, all seem to confirm the potency of strike
actions as the only means of bringing government to the negotiation
table. What really is the case for financial autonomy for the
judiciary?

Section 80 (1) of the Constitution established the Consolidated
Revenue Fund for the Federation, from which funds can only be
withdrawn either to meet expenditure that is charged upon the fund
by the Constitution, or through appropriation. Under and by virtue
of section 81 (3) of the self-same Constitution, the amount
standing to the credit of INEC, National Assembly and the Judiciary
in the Consolidated Revenue Fund shall be paid directly to the
National Judicial Council for disbursement to the heads of Courts
established for the Federation and the States. Section 84 (2)
specifically states that remuneration, salaries and allowances
payable to judicial officers shall be a charge upon the
Consolidated Revenue Fund of the Federation. INEC and the National
Assembly have pursuant to these foregoing provisions, freed
themselves from the stranglehold of the executive, through direct
control of their budget estimates, leaving the judiciary behind and
under executive captivity, as it were.

The struggle has then been to bring the judiciary at par with
the other arms of government, resulting in several court actions
and judgments, all of which have not been obeyed by the executive
arm. This is what has led to the current strike action by
JUSUN.

I verily believe that the JUSUN strike action is for the benefit
of lawyers, judges, litigants and indeed the legal profession at
large, as a way of addressing the real issues, once and for
all.

However, the other concern of all stakeholders is the dimension
and timing of the strike action.

With COVID 19 ravaging the effectiveness of justice
administration, coupled with the wanton looting of and arson upon
the Courts in some parts of the country during the EndSARS
protests, a strike action in the midst of Easter holiday, is seen
as an overkill, especially for the masses, whose hope is the court,
as the last bus-stop for redress.

The ready answer to this is that nothing good comes easy, if we
compare the pains of childbirth and the joy of delivery, then the
appeal would be for all stakeholders to endure the pains in order
to enjoy the gains.

The other argument is whether JUSUN should compartmentalise the
strike between the federal and state judiciaries, since the federal
government has substantially complied with the main constitutional
requirements in respect of financial autonomy for the federal
courts. This argument resonates with me, for the reasons stated
hereunder.

Like a lone ranger on a mission, the President started a
seemingly silent ‘revolution’ to grant autonomy to the legislature
and judiciary of the states. It is a commendable development by the
Muhammadu Buhari government, coming in the midst of its many
challenges. It started with the 4th Alteration to the Constitution
of the Federal Republic of Nigeria, which was initiated by the
Saraki-led National Assembly. As a way of overcoming this
monumental constitutional challenge, a Bill was passed by the
National Assembly, granting financial autonomy to the judiciary and
the houses of assembly of the States, in 2017. In June 2018, the
President assented to the said Bill and it became part of the laws
of the Federal Republic of Nigeria. Even after that, the state
executives would not budge. The President then decided to set up a
22-man Committee known as The Presidential Implementation Committee
on the Autonomy of State Legislature and Judiciary, with the
Honourable Attorney-General of the Federation as the Chairman. The
mandate of the Committee was to ensure the full implementation of
the 4th Alteration to the Constitution and thus free these
important sectors of our democratic experiment, from the
stranglehold of the executive arm. As a follow up to this, the
President signed an executive order, to give effect to the 4th
Alteration. Many hold the view that it is ultra vires the President
to seek to tinker with the revenue of the states or dictate how
they are to be disbursed.

In view of the clear provisions of sections 80-84 of the
Constitution, I humbly beg to disagree with this view. Though
Executive Order 10 may be superfluous to the extent that the 4th
Alteration is already in place, the President is nonetheless
empowered to enforce the Constitution as directed under section 121
(3) thereof.

The judiciary is empowered by the Constitution to entertain and
determine disputes between persons and persons, between persons and
government and between governments and governments. The conflict
margin is more on the executive-judiciary angle because of the
obvious and excessive impunity of the executive arm, especially the
law enforcement agencies.

The general thinking of most governors is to cage the courts and
starve the judiciary of funds, as a means of rendering it
ineffective, so that lawlessness can thrive unchallenged or where
challenged, unchecked.

Most governors are therefore not comfortable with a viable and
independent judiciary, which they dread as a veritable tool in the
hands of the people, to challenge and overturn all manner of
excesses.

Through the office of the Attorney-General and Commissioner for
Justice of the various states, the executive governors have
perfected the style of holding the judiciary captive, starving it
of needed funds and infrastructure. So, in most cases, the
judiciary is forced to go begging cap in hand for funding. And
assuredly as we all know it, he who pays the piper calls the tune.
This was the very ugly scenario before the ‘revolution’ of the 4th
Alteration to the Constitution, seeking to free the legislature and
the judiciary, from the very firm grip of the executive.

By the bold and innovative provisions of the Financial Autonomy
of State Legislatures and State Judiciaries (Fourth Alteration,
No.4) Act of 2018, the road was cleared for the funding of the
Houses of Assembly and Judiciary of the states, directly from the
Consolidated Revenue Fund of the States. The Act then amended the
existing section 121 (3) of the Constitution by stating that “any
amount standing to the credit of the House of Assembly of the State
and the Judiciary, in the Consolidated Revenue Fund of the State
shall be paid directly to the said bodies respectively; in the case
of the judiciary, such amount shall be paid directly to the heads
of the courts concerned.”

In order to actualise the letters of 4th Alteration, the
President thereafter issued Executive Order 10, authorising the
Accountant General of the Federation to make direct transfers from
the Consolidated Revenue Fund, to the bank account of the judiciary
of the States. Some States like Bayelsa and Delta have since passed
their own municipal legislations, granting financial autonomy to
the judiciary.

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 prioritise 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.