JUSUN Strike, Access To Justice And The Imperatives Of Judicial Autonomy

By Festus Ogun

For about two weeks now, courts all over the country are under
lock and key. On April 6, judicial workers under the aegis of
Judicial Staff Union of Nigeria (JUSUN) embarked on an indefinite
nationwide strike to push for the implementation of financial
autonomy for the judiciary. The Union contended that the Federal
and State governments have, over the years, declined to grant
financial autonomy to the judiciary. Truthfully, the lingering
closures of our courts and the failure, neglect and refusal of the
authorities to implement financial autonomy for the judiciary have
far-reaching implications that should give all patriots a cause to
worry.

The demands and agitations of JUSUN are valid. My position is
premised on the ground that granting financial autonomy to the
judiciary is one major way with which the judiciary can be truly
independent. Ordinarily, if ours was a true constitutional
democracy, the issue of granting financial independence to the
judiciary, the arm of government wherein lies the last hope of the
common man, should not have arisen. As far as Nigeria is concerned,
there is no arm of government greater than the other. Therefore,
subjecting the judiciary to the shadow of the executive through
financial dependence is to make nonsense of the independence of the
judiciary and compromise the course of justice. The only way
judicial independence can materialise is to bestow on it financial
willpower.

By law, the independence of the judiciary is not only
guaranteed, its financial autonomy remains the pillar upon which
indirect control and manipulation is resisted. Sections 121 and 81
of the 1999 Constitution of the Federal Republic of Nigeria (as
altered) provide succinctly for the financial autonomy of the
judiciary. Section 121(3) explicitly provides that “any amount
standing to the credit of the judiciary in the Consolidated Revenue
Fund of the State shall be paid directly to the heads of the court
concerned”. If the Constitution is very clear on an issue, it begs
the question why the Governors have chosen to take the path of
executive recklessness.

Interestingly, the sacred provisions of the Constitution in
respect to financial autonomy of the judiciary have been given
judicial blessing by our courts. In cases separately filed by Dr.
Olisa Agbakoba, SAN and JUSUN against the Federal Government, the
court upheld the financial independence of the judiciary as a
constitutional stipulation that cannot be waived or varied by the
executive.

Just last year, President Buhari passed Executive Order 10 to
see to the implementation of the Financial Autonomy of the State
legislature and State Judiciary. While the Executive Order became
controversial as a result of some constitutional defects, the
Governors blatantly refused to implement it. Suffice it to say that
though the good intention behind the Executive Order is
acknowledged and appreciated, any defect in it would not affect the
position of the Constitution as it relates to financial
independence of the judiciary. This is because the provision of the
Constitution is supreme; and any Executive Order that tends to
‘implement’ a constitutional provision only confirms the mandate of
the Constitution – and does not necessarily validate it.

Flowing from the provisions of the Constitution, the decisions
of our courts and the Executive Order No 10 of 2020 elucidated
above, it is crystal clear that the refusal to grant financial
autonomy to the judiciary by the Governors speaks volume of the
level of unconstitutionality, lawlessness and impunity we have to
deal with in our country. The Governors cannot cherry-pick what
aspect of the Constitution to obey; neither can they set a
particular time in which they will obey the Constitution. To put it
rightly, the Consolidated Revenue Fund of the State, established
under Section 120 of the Constitution, is not a personal property
of the executive. It belongs to the executive, legislature and
judiciary. So, keeping what rightfully belongs to other arms of
government is an abuse.

The offices of the Governors are a creation of the law and those
who occupy them cannot continue to whimsically act as though they
are above the law. Flagrant violation or breach of the
Constitution, like this, is a “gross misconduct” which is a ground
for impeachment under Section 188 of the Constitution. Worryingly,
the Lawmakers that should initiate the impeachment process have
been financially handicapped by the Governors. This supports the
ongoing advocacy for the implementation of financial autonomy for
the state legislature.

For the faults of Governors who treat our laws with contempt and
utter disregard, access to justice have been blocked, human rights
are endangered and our civil liberties are periled. For a country
where the dispensation of justice takes longer than necessary, the
closure of our courts has added insult to injury. How about those
whose lives, businesses and liberty depend on a ruling or decision
of court scheduled within the striking days? How about the pain of
picking a new date in the distant future? The law is that a suspect
should not be kept in cells beyond 24 or 48 hours: How about those
(unlawfully) arrested and are kept for over a week in terrible
detention centres because their bail applications cannot be heard
as a result of court closure? The tragedy inflicted by the failure
of the Governors to do the needful when necessary can only be best
imagined.

In Osun State, for instance, the Police confirmed that the cells
have become overcrowded as a result of the strike. This, according
to reports, is the case in almost all the states of the federation.
I cannot imagine why our precious human rights and civil liberties
are set on fire in broad daylight due to the failure of our
leadership to adhere to the spirit and letter of our laws. It is a
troubling narrative.

He who pays the piper, they say, bears the tune. One who
controls the finances controls everything. And our judiciary should
not be subject to executive control; not even at this time when
judicial intervention is needed to rescue our tottering democracy.
The time is ripe for the judiciary to gain financial independence
from the illegal dominance of the executive. Our democracy is
precious and must be guarded at all cost by ensuring that the
sanctity of the judiciary is not unduly infiltrated.

I will like to conclude with the position of senior
constitutional lawyer, Dr. Olisa Agbakoba, SAN who brilliantly
argued that “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.”

Festus Ogun is a lawyer-in-equity and human
rights activist.
festusogunlaw@gmail.com

By Festus Ogun

For about two weeks now, courts all over the country are under
lock and key. On April 6, judicial workers under the aegis of
Judicial Staff Union of Nigeria (JUSUN) embarked on an indefinite
nationwide strike to push for the implementation of financial
autonomy for the judiciary. The Union contended that the Federal
and State governments have, over the years, declined to grant
financial autonomy to the judiciary. Truthfully, the lingering
closures of our courts and the failure, neglect and refusal of the
authorities to implement financial autonomy for the judiciary have
far-reaching implications that should give all patriots a cause to
worry.

The demands and agitations of JUSUN are valid. My position is
premised on the ground that granting financial autonomy to the
judiciary is one major way with which the judiciary can be truly
independent. Ordinarily, if ours was a true constitutional
democracy, the issue of granting financial independence to the
judiciary, the arm of government wherein lies the last hope of the
common man, should not have arisen. As far as Nigeria is concerned,
there is no arm of government greater than the other. Therefore,
subjecting the judiciary to the shadow of the executive through
financial dependence is to make nonsense of the independence of the
judiciary and compromise the course of justice. The only way
judicial independence can materialise is to bestow on it financial
willpower.

By law, the independence of the judiciary is not only
guaranteed, its financial autonomy remains the pillar upon which
indirect control and manipulation is resisted. Sections 121 and 81
of the 1999 Constitution of the Federal Republic of Nigeria (as
altered) provide succinctly for the financial autonomy of the
judiciary. Section 121(3) explicitly provides that “any amount
standing to the credit of the judiciary in the Consolidated Revenue
Fund of the State shall be paid directly to the heads of the court
concerned”. If the Constitution is very clear on an issue, it begs
the question why the Governors have chosen to take the path of
executive recklessness.

Interestingly, the sacred provisions of the Constitution in
respect to financial autonomy of the judiciary have been given
judicial blessing by our courts. In cases separately filed by Dr.
Olisa Agbakoba, SAN and JUSUN against the Federal Government, the
court upheld the financial independence of the judiciary as a
constitutional stipulation that cannot be waived or varied by the
executive.

Just last year, President Buhari passed Executive Order 10 to
see to the implementation of the Financial Autonomy of the State
legislature and State Judiciary. While the Executive Order became
controversial as a result of some constitutional defects, the
Governors blatantly refused to implement it. Suffice it to say that
though the good intention behind the Executive Order is
acknowledged and appreciated, any defect in it would not affect the
position of the Constitution as it relates to financial
independence of the judiciary. This is because the provision of the
Constitution is supreme; and any Executive Order that tends to
‘implement’ a constitutional provision only confirms the mandate of
the Constitution – and does not necessarily validate it.

Flowing from the provisions of the Constitution, the decisions
of our courts and the Executive Order No 10 of 2020 elucidated
above, it is crystal clear that the refusal to grant financial
autonomy to the judiciary by the Governors speaks volume of the
level of unconstitutionality, lawlessness and impunity we have to
deal with in our country. The Governors cannot cherry-pick what
aspect of the Constitution to obey; neither can they set a
particular time in which they will obey the Constitution. To put it
rightly, the Consolidated Revenue Fund of the State, established
under Section 120 of the Constitution, is not a personal property
of the executive. It belongs to the executive, legislature and
judiciary. So, keeping what rightfully belongs to other arms of
government is an abuse.

The offices of the Governors are a creation of the law and those
who occupy them cannot continue to whimsically act as though they
are above the law. Flagrant violation or breach of the
Constitution, like this, is a “gross misconduct” which is a ground
for impeachment under Section 188 of the Constitution. Worryingly,
the Lawmakers that should initiate the impeachment process have
been financially handicapped by the Governors. This supports the
ongoing advocacy for the implementation of financial autonomy for
the state legislature.

For the faults of Governors who treat our laws with contempt and
utter disregard, access to justice have been blocked, human rights
are endangered and our civil liberties are periled. For a country
where the dispensation of justice takes longer than necessary, the
closure of our courts has added insult to injury. How about those
whose lives, businesses and liberty depend on a ruling or decision
of court scheduled within the striking days? How about the pain of
picking a new date in the distant future? The law is that a suspect
should not be kept in cells beyond 24 or 48 hours: How about those
(unlawfully) arrested and are kept for over a week in terrible
detention centres because their bail applications cannot be heard
as a result of court closure? The tragedy inflicted by the failure
of the Governors to do the needful when necessary can only be best
imagined.

In Osun State, for instance, the Police confirmed that the cells
have become overcrowded as a result of the strike. This, according
to reports, is the case in almost all the states of the federation.
I cannot imagine why our precious human rights and civil liberties
are set on fire in broad daylight due to the failure of our
leadership to adhere to the spirit and letter of our laws. It is a
troubling narrative.

He who pays the piper, they say, bears the tune. One who
controls the finances controls everything. And our judiciary should
not be subject to executive control; not even at this time when
judicial intervention is needed to rescue our tottering democracy.
The time is ripe for the judiciary to gain financial independence
from the illegal dominance of the executive. Our democracy is
precious and must be guarded at all cost by ensuring that the
sanctity of the judiciary is not unduly infiltrated.

I will like to conclude with the position of senior
constitutional lawyer, Dr. Olisa Agbakoba, SAN who brilliantly
argued that “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.”

Festus Ogun is a lawyer-in-equity and human
rights activist.
festusogunlaw@gmail.com