JUSUN Strike: Appraisal On The Issue Of Granting Financial Autonomy To The Judiciary


By Godwin Imoke Esq.

godwinimoke@gmail.com

There is no gainsaying that Negotiation and Collective Bargaining are the tools used by Labour Unions the world over to reach amicable labour agreements between employers and employees whether in the private or public sector. This tool of expression of interest or displeasure sometime degenerates into boycotting work for few days and in some instances, indefinitely until compromise is reached and agreements entered into with the employees through their respective unions. Within the Nigerian context, the use of industrial strike by workers under the supervision of the Nigerian Labour Congress (NLC) or by other respective workers associations/unions albeit affiliated to the Nigerian Labour Congress (NLC) is indeed an unfortunate reality in Nigeria which has become the only vehicle through which the attention of the Nigerian government at all levels can be obtained to either discuss or implement labour agreements reached or entered into by the government on the one side and the leadership of labour union on the other side.

There is plethora of labour related actions by way of going on strikes conducted and supervised by the labour unions/association in Nigeria bothering on issues of minimum wage, fuel hike, negative economic policies of government, unemployment, non-payment of pensions and gratuity, infrastructural decay; to mention but a few.

Under this discourse, the theme is centered around the need and/or cry for financial autonomy for the judiciary which was recently championed by Judicial Staff Union of Nigeria (otherwise known as JUSUN)  which embarked on a labour strike on the April 6th, 2021 calling on government at both  federal and state levels to fully implement the financial autonomy for the Judiciary in line with extant provisions of Section 81 and 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Executive Order 10 of May 2020 signed by the President Muhammed Buhari titled “Implementation of financial autonomy for state legislature and judiciary Order 2020”  and judicial decisions from superior Court of record  over this vexed issue.

In the light of the foregoing, the Constitution of the federal Republic of Nigeria which is the grundnorm expressly provides for the three arms/organs of government i.e., the Legislature, the Executive and the Judiciary with their distinct functions and powers at both the federal and state levels respectively[1]. This is in accordance with the letters and spirit of the Constitution, these various arms/organs of government at both the federal and state levels are expected to carry out their roles independently[2] but also are allowed by each arm of the government to exercise checks over the other as espouse under the doctrine of Checks and Balances.

Notwithstanding the foregoing, the Judiciary is supposed to be independent in all ramifications owing to the pivotal role it plays in a society and without mincing words; it remains the bedrock upon which democracy is sustained and entrenched. However, independence of the judiciary at both federal and state levels remains a myth rather than reality under successive democratic regimes in Nigeria since 1999 and this has grave consequences in the administration of justice in Nigeria. The process of appointment of judicial officers at both the federal and state levels are most often than not characterized with interferences and corrupt tendencies from the Executive arm of government in collusion with the legislature who are mostly stooges and appendages of the executives at the federal and state levels, respectively.

The question that agitates the mind is what is it about this “financial autonomy” vis-à-vis the provisions of the Constitution of the Federal Republic of Nigeria. In a loose sense, financial autonomy could be said to mean financial independence and, in this context, financial independence for the judiciary at both federal and state levels. The importance of granting financial independence to the judiciary cannot be overemphasized. It is a truism “that he who pays the piper detects the tune” and the implication of this aphorism which is that the person who pays for something has the right to decide what it will be like is not suitable or palatable in the justice delivery sector of any country if this is allowed to be under any guise. Unfortunately, Nigeria justice sector is not completely immune from tendencies over time which portray its actions as a clear manifestation of doing the biding of the political class, especially those of the executive arm government in the course of discharging judicial functions and judicial pronouncements which runs contrary to the tenets of justice and the oath taken by these Judicial officers; one of which is that justice would be dispensed without fear or favour. It is therefore, trite that justice must not only be done but manifestly be seen to be done[3].

It is my candid view and indeed an expression of most people who appreciate the usefulness and importance of guaranteeing the financial autonomy of the judiciary that; there wouldn’t have been any need for this ongoing labour strike by JUSUN which has lasted for over three weeks as at the time of making this piece and still counting if the Executive arm of government at the State level (Governors) comply with the provisions of the Constitution. The present quagmire over the financial autonomy for the judiciary ought not to be so owing to the dire implications already seen and worse still may happen in the future if these extant provisions of the Constitution and the Executive Order 10 of May 2020 is not implemented in its sincerity by the Executive arm of government at the State level. Fortunately, it is on record that the federal Government have being implementing the financial autonomy for the judiciary at that level by paying to the National Judicial Council (NJC) all monies standing in the credit of judiciary for onward disbursement in line with the Constitutional provision. According to Jimoh who is one of the officials of JUSUN, he said and I quote “We resorted to strike again this time because all the other options have not worked. And, we have realized that the governors are unwilling to comply with the clear and unambiguous provision of the Constitution. Our action, this time, is actually directed at the governors, because the judiciary at the federal level is already enjoying financial autonomy by virtue of the provision of Section 81(3) of the Constitution.[4]”

By the provision of Section 80[5]; it provides for the establishment of the Consolidated Revenue Fund for the federation and in Section 81[6]; it provides for the Authorization of expenditure from the Consolidated Revenue Fund. That notwithstanding, particular attention as it relates to the work is Sub-Section 2 and 3 of Section 80[7] which provision is reproduced anon, thus:

“(2). the heads of the expenditure contained in the estimate (other than expenditure charged upon the Consolidated Revenue Fund of the federation by this Constitution) SHALL be included in a bill, to known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the sum necessary to meet that expenditure and Appropriation of those sum for the purposes specified therein.”

“(3). The amount standing to the credit of the –

(a). Independent National Electoral Commission;

(b). National Assembly;

(c). Judiciary,

In the Consolidated Revenue Fund of the Federation SHALL be paid directly to the said bodies respectively, in the case of the Judiciary, such amount SHALL be paid to the National Judicial Council for disbursement to the HEADS of the courts established for the federation and States under Section 6 of this Constitution.”

Furthermore, Section 120[8] provides for the establishment of a Consolidated Revenue Fund at the state level and went ahead to provide Authorization of expenditure from the Consolidated Revenue Fund in Section 121[9] . I will proceed to reproduce Sub-Section 2 and 3 of Section 121[10] , it provides thus:

“(2). The heads of expenditure contained in the estimates, other than expenditure charged upon the Consolidated Revenue Fund of the State by this Constitution, SHALL be included in a bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary to meet that expenditure and appropriation of those sums for the purposes specified therein.

(3). 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 courts concerned.

Let me seize this medium to once again reiterate that the Executive Order(s) is described as “a rule of order issued by the President to the executive branch of government and having the force of law” and this is applicable at the state level mutatis mutadis. These Executive Order(s) has full legal effect[11].

Having stated the above, it is imperative at this juncture to reproduce salient provisions of the Executive Order 10 of May 2020[12] signed by President Muhammed Buhari that touches on this vexed and inevitable contention over financial autonomy or independence of the judiciary at the State level in Nigeria. These provisions are thus:

“1. APPROPRIATION, AUTHORISATION, ORDERS, ETC.

(a) Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary, allocation of appropriated funds to the State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge.

(b) The Accountant-General of the Federation shall by this Order and such any other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorize the deduction from source, in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended).”

“5. APPROPRIATION AND SUPPLEMENTARY APPROPRIATION LAW, ETC:

(c). This Order expects States without Appropriation Law on the financial autonomy of State Legislature and State Judiciary to do so.”

“6. SPECIAL ALLOCATION FOR THE JUDICIARY:

(a) Notwithstanding the provisions of this Executive Order, in the first three years of its implementation, there shall be special extraordinary capital allocations for the Judiciary to undertake capital development of State Judiciary Complexes, High Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of other Courts befitting the status of a Courts.

(b) In this section, “Other Courts” includes Magistrate Courts, District Courts, Customary Courts and Area Courts.

“7. IMPLEMENTATION OF THIS ORDER:

(a) Subject to section 8(1) of this Order, implementation of the provisions of this Order shall be carried out by the Presidential Implementation Committee in accordance with its recommendations.

(b) To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the recommendations of the Committee, as may from time to time be made.

(c) This Order shall be implemented consistently with States applicable laws that guarantee financial autonomy of State Legislature and State Judiciary and subject to the availability of funds.”

From a combined reading and effect of the above reproduced provisions addressing and/or touching on grant of financial autonomy to judiciary at the State level especially; the obvious and inevitable deduction therefrom is that State Government under the leadership of Governors have no option(s) than to release their tight  fist hold on monies which are meant for the judiciary whether for their recurrent or capital expenditures as both the Constitutional provisions and the Executive Order 10 of May 2020 carries the force of law and its compliance need not be subjected to any intrinsic and political maneuvers by the Executive Governors of the 36 States under any suspicious and spurious negotiation meetings as is currently been staged with the leadership of JUSUN in recent days/times.

The use of the phrase “SHALL” in sections 121 (3) supra connotes mandatory obligation on part of Executives that these monies standing in the credit of the Judiciary at the State level and even at the Federal level after been deducted from the Consolidated Revenue Fund at the federal level; should be paid to the National Judicial Council and from there be transferred to the respective heads of courts for the federal Courts. Likewise, it is expected that for the state judiciary, the Accountant-General of the State shall pay to the heads of the respective Courts at the State level monies standing in their credit rather than what is ostensibly obtained in time past and even under the current democratic regime where Heads of Courts at both levels go cap in hand to the Executives (President & Governors) to solicit for funding of the justice sector.

The ills and negative effect of denying the Judiciary its financial autonomy is better imagined than experienced. May I quickly point out that the failure to grant this financial autonomy will and/or has the capacity of eroding justice delivery sector in Nigeria, which is almost losing the confidence of the ordinary citizen and will rather lead to entrenched corruptions, bribery, lack of motivation by members of the Bench, breakdown of infrastructure, resort to self-help, anarchy, perversion of justice; to mention but a few.

It is beyond debate and/or controversy of which will interest you (the reader) to know that the JUSUN strike and the cry for financial autonomy of the judiciary were the issues that necessitated an earlier suit instituted by a former Nigerian Bar Association president, Olisa Agbakoba SAN challenging the powers and actions of the State Governors and the President for violating the express provision on financial autonomy of the judiciary at both the federal and State levels. The celebrated and unreported decisions are: Olisa Agbakoba vs. A.G. Federation, National Judicial Council & Anor.[13] delivered on the 26th day of May, 2014 by Hon. Justice A.R. Mohammed; Olisa Agbakoba vs. Attorney-General of Ekiti State & 2ors[14] and Judiciary Staff Union of Nigeria vs. National Judiciary Council and Governors of the 36 states[15] wherein the Courts upheld the sanctity of the provisions 81(3), 84 (1), (2), (3), (4) and (7) of the Constitution regarding the funding of the judiciary and by extension giving effect to the grant of financial autonomy to the Judiciary. Since then neither has these decisions been appealed against or has it been set aside by any of Appellate Courts (known to the writer) under the present hierarchy of courts in Nigeria. The obvious and blatant disposition of non-compliance with the decisions of the Courts on this subject-matter by the Governors of the 36 states is indeed inimical to the ethos of democracy and rule of law and I find no hesitation in adopting the decision of the Court of Appeal in ZENITH BANK v. IGBOKWE & ANOR[16] to further buttress this point when the Court held thus:

“I have deemed it compelling to reiterate the trite axiom, that a blatant disrespect to a court of law, in whatever ramification, is antithetical to the rule of law; the fundamental objectives of democracy, and the well cherished independence of the Judiciary. It was aptly observed by this court not too long ago that- The importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law cannot be over emphasized. There is no doubt, that public confidence in the courts, in the integrity of Judges that man such courts, and in the impartiality and efficiency of the administration of justice as a whole, play a great role in sustaining the judicial system of a (democratic) nation. I think it was Mr. Justice Frankfurter, the eminent and fearless US Jurist who once remarked that: “The courts’ authority… possessed of neither the purse nor the sword…ultimately rests on sustained public confidence in its moral sanction.” See BAKER V. CARR Supreme Court of USA (1962) 369 US 186.” (brackets added). See DENTON WEST VS. MUOMA (2008) 6 NWLR (Pt.1083) 418 @ 451 paragraph H; 452 paragraphs A – C, per Saulawa, JCA.” Per OGUNWUMIJU, J.C.A. (Pp. 27-28, paras. F-D.”

In the light of the foregoing legislations, judicial decisions and even more recently the President Muhammad Buhari’s Executive Order 10 of May 2020; the actions of the Executive Governors of the 36 States in Nigeria can best be described as contemptuous in the face of the Court’s decisions and they are in flagrant breach of the extant Constitution of Nigeria in the light of the delay tactics being employed by them and/or their refusal to implement the financial autonomy for the Judiciary which geared towards their selfish political aggrandizement at the expense of building the Justice sectors in Nigeria which remains the last hope of the ordinary citizen. This is quite unfortunate and regrettable, to say the least. There is no doubt that the law is trite that any person who flagrantly disobey decision(s) of the Court(s) or breaches any provision of extant laws in Nigeria commits a crime and should be tried/prosecuted and where the contemnor cannot purge his/herself of the contempt (in this case, the Executive Governors of the 36 state) and those who contravene the law; they are liable and ought to be punished by committing them to prison in line with the law. Therefore, it is my candid opinion that albeit that the Governors enjoy immunity from prosecution during their tenure in office; the Governors should be prosecuted for their flagrant infractions committed by them after they have left office to serve as a deterrent.   If this will happen is better imagined than in reality under the Nigerian kind of democratic dispensation.

Therefore, the ongoing JUSUN strike cannot come at a better time than now to drive home the need for the full implementation of the financial autonomy and sustenance of the Justice sector in Nigeria which is fast eroding it significance and importance before the citizenry vis-à-vis the bedeviling allegations of corruptions, bribery and suffocation of the administration of Justice at State levels on a daily basis. It is therefore without any iota of doubt that I completely align with the submission of the learned Silk Olisa Agbakoba in one of his interviews wherein he stated thus:

State governors should please enforce the decisions of the court and save the country from this chaos. JUSUN is absolutely correct to pursue a policy of financial independence of the courts guaranteed by the Constitution and affirmed by three decisions of superior courts of Nigeria.” [17]

Consequently, the cry for financial independence and/or autonomy for the judiciary is indeed overdue owing to the fact that it has the potential of strengthening the administration of justice in Nigeria, boost investor(s) confidence in our economic sector, deployment of information communication technology for expeditious handling of cases and research, better remuneration and drastic reduction of bribery and corrupt tendencies by judicial officers/staff, conducive working environment; just to mention but a few. Therefore, the need for all well-meaning individuals in the society to join the clarion call championed by Judiciary Staff Union of Nigeria (JUSUN) and supported by the Nigerian Bar Association (NBA) for the grant of full financial autonomy to the Judiciary both at the Federal and State levels cannot be overemphasized as this will lead to building strong and formidable justice sector in Nigeria for the good of both the current and future generations.

[1] Section 4, 5, 6 CFRN 1999.

[2]  propounded by Montesquieu, a French scholar in and 1747 published in his book ‘Espirit des Louis’ (The spirit of the laws)

[3] PDP vs. INEC & ors (2012) lpelr-9724(SC), FRN vs. AKUBUEZE (2010) lpelr-1272(SC)

 

[4] https://thenationonlineng.net/long-walk-to-financial-autonomy-for-state-judiciary/

[5] CFRN 1999.

[6] ibid.

[7] Supra.

[8] CFRN 1999.

[9] ibid

[10] ibid.

[11] https://guardian.ng/features/executive-order-and-presidential-power-in-the-nigerian-constitutional-democracy/

[12] Otherwise titled: Implementation of financial autonomy for state legislature and judiciary Order 2020.

[13] Suit No: FHC/ABJ/CS/63/13.

[14] Suit No: NAD/56/2013.

[15] Suit No: FHC/ABJ/CS/667/13

[16](2013) LPELR-21975(CA)

[17] https://guardian.ng/features/agbakoba-charges-governors-to-obey-court-decisions-on-judicial-autonomy/

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