Judiciary’s Financial Autonomy: JUSUN Is Right!

By Muiz Banire, SAN

In the recent past and up till about a week ago, I have been
intervening in matters relating to the financial autonomy of the
judiciary. Thus, I am an unrepentant supporter and advocate of
financial autonomy for the judiciary for several reasons that I
shall highlight in the course of this discussion. However, before
embarking on that voyage, let me, for the umpteenth time, commend
the executive and members of the Judiciary Staff Union of Nigeria
(JUSUN) for their resoluteness on this issue.

The union, at various times, has interrogated the issue via
multiple legitimate means to actualize the import of the law. In
one of such interventions, the union had approached the court of
law and had emerged successful from it. This is in addition to the
judicial intervention at the instance of the great Learned Silk,
Olisa Agbakoba, that was equally successful.

To date, there are three pronouncements of courts. There was the
decision in Olisa Agbakoba v. A.G., Ekiti State; Olisa Agbakogba v.
Federal Government of Nigeria, the National Judicial Council and
the National Assembly; and the last one, Judiciary Staff Union of
Nigeria v. National Judicial Council and Governors of 36 States.
Thus, beyond the strikes and various other advocacies done by the
union, JUSUN is still armed with the judgments of court mandating
the implementation of financial autonomy for the judiciary. In a
sane clime, by the very pronouncement of the court, the issue would
have been resolved.

The governors were party to the suit and ought to comply as they
are bound by the judgment. But for the immunity clause in the
Constitution shielding governors, they ought to have been held in
contempt of those decisions. However, since the governors swore to
uphold the provisions of the Constitution of the country, Sections
81(2), 84 (1), (2), (3), (4) and (7) being part of the
Constitution, the violation of such as pronounced by the court
ought to trigger impeachment of the respective governors.
Regrettably, this can only happen in a decent society with an
independent legislature.

Little wonder there is silence on the part of the legislators.
By the constitutional provision, the judiciary’s budget ought to be
submitted directly to the legislature and not through the present
practice of going through the executive, which hands over any
figure it deems fit to the judiciary.

Again, the sum due and payable ought to remitted directly to the
National Judicial Council from the Consolidated Revenue Fund. The
attempt to distinguish recurrent and capital expenditure in the
construction of the provision is untenable as, most times, most
expenses in the judiciary can be classified under recurrent. Before
delving deeper into the subject, let me quickly correct an
erroneous impression of some people about the ongoing strike.

The JUSUN strike is one of the few exceptions to general strikes
in which the beneficiaries are the agitators. The financial
autonomy the union is demanding does not automatically confer on
the members any pecuniary gain. The sum of the struggle lies in the
improvement of the administration of justice in the country. As at
date, there is no pretending about the fact the infrastructure of
courts is comatose. Most courtrooms are inhabitable, with some in
the shape of a storage facility. It is a show of shame to exhibit
what passes today as courtrooms as a place for the dispensation of
justice.

Most staff are not well trained as a result of paucity of funds
for capacity development of the staff. The stationery essential for
the running of the courts is lacking. Notwithstanding that
litigants pay for the filing of cases and equally pay for the
service of originating processes by the bailiffs of the court,
litigants still end up paying again for files and service of
processes to activate the cases filed. Judges still largely write
in long hands, as modern technological devises are lacking.

Most times, courts are unable to transact businesses due to lack
of power, and, in cases of alternate sources, lack of diesel to
power the generating sets obtains. Several times, chairs in the
nature of benches have collapsed during court sessions while
lawyers and litigants are sitting. Most courtrooms are badly lit.
What about the logistics for judges? Constitutionally, judges are
expected to deliver judgments within three months of concluding
trials in the face of the daunting challenge of lack of electricity
supply to their various homes.

I am not unaware that in some states generating sets are
provided but to last if possible till eternity. Little or no diesel
supply is made. What am I even saying? What about power supply in
the court? I have attended a trial before a judge who, out of his
passion and commitment to the dispensation of justice, had to
procure from his meagre renumeration a 5kva generating set and buy
fuel to conduct cases. This was for a period of almost nine months
without power supply to the court as a result of theft of external
cable supplying electricity to the complex. The judge in question,
at the risk of embarrassing him, is the Honourable Justice Okorowo
of the Federal High Court. I only pray that, in the nearest future,
such judges are appropriately rewarded. In another scenario
witnessed by several senior lawyers during the hearing of election
petition cases in the Federal Capital Territory High Court Complex
in Apo, I had to draw the attention of the then Chief Judge to the
state of sanitation in the court infrastructure, no water supply,
much less any functional toilet system. In fact, lawyers and
litigants were compelled to approach the nearby bushes to answer
the call of nature.

For how long are we going to wait on the executive without
appropriate financial autonomy for the judiciary to address these?
Is it the health of the judges we want to talk about? I have
witnessed instances of judges being denied financial support for
treatment simply because such judges are considered anti-government
in their judgments, little wonder these days litigants believe they
cannot win cases against the government in state courts. This is an
erosion of the confidence that ought to be reposed in the
judiciary. Have you seen judges’ vehicles break down on the road?
While other government officials cart away huge sums under vehicle
allowances and still purchase and make use of high-grade vehicles
tagged utility vehicles, judges’ vehicles, at times, have to be
used for more than 10 years as against the four-year rule of
serviceability. Provision of security for judges and the courtrooms
is another thing entirely. Cases of invasion of courtrooms abound,
even while the court is sitting, much less when the court is not in
operation.

Recall several courtrooms burnt during the #EndSARS protest. I
have gone this length to enlighten the public about components of
the struggle so as not confuse it with other union or industrial
actions that largely border on conditions of service and welfare.
The totality of the picture depicted above is that the issues being
canvassed by the union affect all of us as Nigerians. Thus, the
whole lot of Nigerians need to rise up and terminate this
oppression once and for all. I say enough is enough!

Let me register my appreciation for the President in his attempt
to hitherto solve this imbroglio by signing the Executive Order 10.
Although, legally, this is unhelpful as it cannot actualize the
objectives of the struggle but, morally, it is encouraging. Let us
recall that in terms of constitutional provision and case law, the
field has been covered and the Executive Order is even a
surplusage. What is required is breathing life into the law by
compelling the actors, the governors to act responsibly in this
regard. The counter-argument often placed by the governors is that
the stream of revenue is not static.

One quite understands this contention but will submit that this
can be addressed via percentage remittance. There should be agreed
percentage of amount to be remitted to the respective arms from
whatever amount that comes in by way of revenue.

For example, while the legislature could attract 15 per cent,
the judiciary can have 25 per cent and the executive 60 per cent. I
believe this will be fair enough and eliminate the misgiving as to
the practicality of autonomy. As to the argument that judges are
not meant to be dealing with execution of projects, I agree but
opine that this is curable through the appointment of court
administrators charged with such responsibilities. The earlier, the
better the country appreciates the fact that the judiciary is not a
parastatal of the executive nor a ministry or even a unit under the
Ministry of Justice. It is in no way subservient to the two other
arms that enjoy financial autonomy.

There is no better way of appreciating the role of the judiciary
than quoting in extenso the pronouncements of His Lordship in A.G.,
Abia State v. A.G., Federation and Others thus: “It is also
important to bear in mind that the judiciary, especially the
Supreme Court in particular, is an essential arm in the governance
of the nation. It is the guardian of the Constitution, charged with
the sacred responsibility of dispensing justice for the purposes of
safeguarding and protecting the Constitution and its goals. The
judiciary, when properly invoked, has a fundamental role to play in
the structure of governance by checking the activities of the other
organs of government and thereby promoting good governance, respect
for individual rights and fundamental liberties and also ensuring
the achievement of the goals of the Constitution and not allow the
defeat of such good goals and intendment. It is the duty of the
court to keep the government faithful to the goals of democracy,
good governance, for the benefit of the citizens as demanded by the
Constitution.”

Per Mustapha JSC. Similarly, Rhodes-Vivour, JSC (Rtd.) in PDP v.
Sylva had this to say: “This court and indeed all courts in Nigeria
have a duty, to ensure that citizens of Nigeria, high and low get
the justice which their case deserves. The powers of the court are
derived from the Constitution not at the sufferance or generosity
of any other arm of government of Nigeria. The Judiciary, like all
citizens of this country, cannot be passive onlooker when any
person attempts to subvert the administration of justice and will
not hesitate to use the powers available to it to do justice in
cases before it”. A situation where the Judiciary goes cap in hand
to the Executive is unhealthy for the administration of justice.
The situation of he who pays the piper, dictates the tune must not
be allowed to continue.

Without financial autonomy, there cannot be judicial
independence. In the light of the above profound statements, it is
incumbent on all and sundry, particularly the Nigerian Bar
Association and all lawyers, to support the struggle of the
JUSUN.

By Muiz Banire, SAN

In the recent past and up till about a week ago, I have been
intervening in matters relating to the financial autonomy of the
judiciary. Thus, I am an unrepentant supporter and advocate of
financial autonomy for the judiciary for several reasons that I
shall highlight in the course of this discussion. However, before
embarking on that voyage, let me, for the umpteenth time, commend
the executive and members of the Judiciary Staff Union of Nigeria
(JUSUN) for their resoluteness on this issue.

The union, at various times, has interrogated the issue via
multiple legitimate means to actualize the import of the law. In
one of such interventions, the union had approached the court of
law and had emerged successful from it. This is in addition to the
judicial intervention at the instance of the great Learned Silk,
Olisa Agbakoba, that was equally successful.

To date, there are three pronouncements of courts. There was the
decision in Olisa Agbakoba v. A.G., Ekiti State; Olisa Agbakogba v.
Federal Government of Nigeria, the National Judicial Council and
the National Assembly; and the last one, Judiciary Staff Union of
Nigeria v. National Judicial Council and Governors of 36 States.
Thus, beyond the strikes and various other advocacies done by the
union, JUSUN is still armed with the judgments of court mandating
the implementation of financial autonomy for the judiciary. In a
sane clime, by the very pronouncement of the court, the issue would
have been resolved.

The governors were party to the suit and ought to comply as they
are bound by the judgment. But for the immunity clause in the
Constitution shielding governors, they ought to have been held in
contempt of those decisions. However, since the governors swore to
uphold the provisions of the Constitution of the country, Sections
81(2), 84 (1), (2), (3), (4) and (7) being part of the
Constitution, the violation of such as pronounced by the court
ought to trigger impeachment of the respective governors.
Regrettably, this can only happen in a decent society with an
independent legislature.

Little wonder there is silence on the part of the legislators.
By the constitutional provision, the judiciary’s budget ought to be
submitted directly to the legislature and not through the present
practice of going through the executive, which hands over any
figure it deems fit to the judiciary.

Again, the sum due and payable ought to remitted directly to the
National Judicial Council from the Consolidated Revenue Fund. The
attempt to distinguish recurrent and capital expenditure in the
construction of the provision is untenable as, most times, most
expenses in the judiciary can be classified under recurrent. Before
delving deeper into the subject, let me quickly correct an
erroneous impression of some people about the ongoing strike.

The JUSUN strike is one of the few exceptions to general strikes
in which the beneficiaries are the agitators. The financial
autonomy the union is demanding does not automatically confer on
the members any pecuniary gain. The sum of the struggle lies in the
improvement of the administration of justice in the country. As at
date, there is no pretending about the fact the infrastructure of
courts is comatose. Most courtrooms are inhabitable, with some in
the shape of a storage facility. It is a show of shame to exhibit
what passes today as courtrooms as a place for the dispensation of
justice.

Most staff are not well trained as a result of paucity of funds
for capacity development of the staff. The stationery essential for
the running of the courts is lacking. Notwithstanding that
litigants pay for the filing of cases and equally pay for the
service of originating processes by the bailiffs of the court,
litigants still end up paying again for files and service of
processes to activate the cases filed. Judges still largely write
in long hands, as modern technological devises are lacking.

Most times, courts are unable to transact businesses due to lack
of power, and, in cases of alternate sources, lack of diesel to
power the generating sets obtains. Several times, chairs in the
nature of benches have collapsed during court sessions while
lawyers and litigants are sitting. Most courtrooms are badly lit.
What about the logistics for judges? Constitutionally, judges are
expected to deliver judgments within three months of concluding
trials in the face of the daunting challenge of lack of electricity
supply to their various homes.

I am not unaware that in some states generating sets are
provided but to last if possible till eternity. Little or no diesel
supply is made. What am I even saying? What about power supply in
the court? I have attended a trial before a judge who, out of his
passion and commitment to the dispensation of justice, had to
procure from his meagre renumeration a 5kva generating set and buy
fuel to conduct cases. This was for a period of almost nine months
without power supply to the court as a result of theft of external
cable supplying electricity to the complex. The judge in question,
at the risk of embarrassing him, is the Honourable Justice Okorowo
of the Federal High Court. I only pray that, in the nearest future,
such judges are appropriately rewarded. In another scenario
witnessed by several senior lawyers during the hearing of election
petition cases in the Federal Capital Territory High Court Complex
in Apo, I had to draw the attention of the then Chief Judge to the
state of sanitation in the court infrastructure, no water supply,
much less any functional toilet system. In fact, lawyers and
litigants were compelled to approach the nearby bushes to answer
the call of nature.

For how long are we going to wait on the executive without
appropriate financial autonomy for the judiciary to address these?
Is it the health of the judges we want to talk about? I have
witnessed instances of judges being denied financial support for
treatment simply because such judges are considered anti-government
in their judgments, little wonder these days litigants believe they
cannot win cases against the government in state courts. This is an
erosion of the confidence that ought to be reposed in the
judiciary. Have you seen judges’ vehicles break down on the road?
While other government officials cart away huge sums under vehicle
allowances and still purchase and make use of high-grade vehicles
tagged utility vehicles, judges’ vehicles, at times, have to be
used for more than 10 years as against the four-year rule of
serviceability. Provision of security for judges and the courtrooms
is another thing entirely. Cases of invasion of courtrooms abound,
even while the court is sitting, much less when the court is not in
operation.

Recall several courtrooms burnt during the #EndSARS protest. I
have gone this length to enlighten the public about components of
the struggle so as not confuse it with other union or industrial
actions that largely border on conditions of service and welfare.
The totality of the picture depicted above is that the issues being
canvassed by the union affect all of us as Nigerians. Thus, the
whole lot of Nigerians need to rise up and terminate this
oppression once and for all. I say enough is enough!

Let me register my appreciation for the President in his attempt
to hitherto solve this imbroglio by signing the Executive Order 10.
Although, legally, this is unhelpful as it cannot actualize the
objectives of the struggle but, morally, it is encouraging. Let us
recall that in terms of constitutional provision and case law, the
field has been covered and the Executive Order is even a
surplusage. What is required is breathing life into the law by
compelling the actors, the governors to act responsibly in this
regard. The counter-argument often placed by the governors is that
the stream of revenue is not static.

One quite understands this contention but will submit that this
can be addressed via percentage remittance. There should be agreed
percentage of amount to be remitted to the respective arms from
whatever amount that comes in by way of revenue.

For example, while the legislature could attract 15 per cent,
the judiciary can have 25 per cent and the executive 60 per cent. I
believe this will be fair enough and eliminate the misgiving as to
the practicality of autonomy. As to the argument that judges are
not meant to be dealing with execution of projects, I agree but
opine that this is curable through the appointment of court
administrators charged with such responsibilities. The earlier, the
better the country appreciates the fact that the judiciary is not a
parastatal of the executive nor a ministry or even a unit under the
Ministry of Justice. It is in no way subservient to the two other
arms that enjoy financial autonomy.

There is no better way of appreciating the role of the judiciary
than quoting in extenso the pronouncements of His Lordship in A.G.,
Abia State v. A.G., Federation and Others thus: “It is also
important to bear in mind that the judiciary, especially the
Supreme Court in particular, is an essential arm in the governance
of the nation. It is the guardian of the Constitution, charged with
the sacred responsibility of dispensing justice for the purposes of
safeguarding and protecting the Constitution and its goals. The
judiciary, when properly invoked, has a fundamental role to play in
the structure of governance by checking the activities of the other
organs of government and thereby promoting good governance, respect
for individual rights and fundamental liberties and also ensuring
the achievement of the goals of the Constitution and not allow the
defeat of such good goals and intendment. It is the duty of the
court to keep the government faithful to the goals of democracy,
good governance, for the benefit of the citizens as demanded by the
Constitution.”

Per Mustapha JSC. Similarly, Rhodes-Vivour, JSC (Rtd.) in PDP v.
Sylva had this to say: “This court and indeed all courts in Nigeria
have a duty, to ensure that citizens of Nigeria, high and low get
the justice which their case deserves. The powers of the court are
derived from the Constitution not at the sufferance or generosity
of any other arm of government of Nigeria. The Judiciary, like all
citizens of this country, cannot be passive onlooker when any
person attempts to subvert the administration of justice and will
not hesitate to use the powers available to it to do justice in
cases before it”. A situation where the Judiciary goes cap in hand
to the Executive is unhealthy for the administration of justice.
The situation of he who pays the piper, dictates the tune must not
be allowed to continue.

Without financial autonomy, there cannot be judicial
independence. In the light of the above profound statements, it is
incumbent on all and sundry, particularly the Nigerian Bar
Association and all lawyers, to support the struggle of the
JUSUN.