The Financial Autonomy of the Nigerian Judiciary
…expert views from the NBA Lagos Law Week
The autonomy of the judiciary of any state remains a bastion of any civilized society. At the just concluded NBA Lagos Law Week, panellist discuss the need for the financial autonomy and independence of the Nigerian judiciary, the factors affecting it, and possibilities of redress.
The panel which was themed, “Financial Autonomy of the Judiciary: Key to Judicial Independence, featured Hon. Justice Babajide Candide-Johnson (Rtd; Olawale Fapohunda, the Honourable Attorney General of Ekiti State; Yakubu Chonoko Maikyau, SAN, FCIArb (UK), Principal Partner, Maikyau & Co.; Ayo Obe, Partner, Ogunsola Shonibare), and was moderated by Koyinsola Ajayi, Managing Partner, Olaniwun Ajayi LP.
During the session, the Attorney General of Ekiti state, said that several judges have been on the same salary since 2009. Speaking on where the nation is on financial autonomy he stated,
“I am not sure we are anywhere near judicial autonomy, and it is regrettable that the opportunity to look at the salaries and allowances of judges was lost … there is still a long way to go. The only thing I see, is that finally we can focus on the situation of our judiciary. And this is a campaign that has been on since 1999. But we are not anywhere near we want to be.”
The panel further considered what financial autonomy centres on in our climes; the total control by the judiciary of their funds or ensuring that the funds allocated by the executive is sufficient to constitute a state of independence.
Ayo Obe who stated that the independence of the judiciary is a mindset above anything else, also advocated for complete autonomy of the judiciary. She contended that the judiciary should be given their funds to administer and regulate by themselves, without any input or interference from the executive.
“…I agree with the opinion that autonomy is really a state of mind, I still think that if we don’t have judicial financial autonomy as a given, there is always that question [that judgments are independent of coercion] that can be raised. Autonomy and independence require that we do not have to raise that question at all. Let the judges have their complete autonomy and if they decide to raise salaries, that will be their choice. The judiciary will not have to be beholden to anyone. If we take that out of the way, we would be able to see if it is money that is pulling the strings or the failure to emancipate themselves from that mentality.”
In addressing this issue, Hon. Justice Candide-Johnson (Rtd.) focused on the attitude of the state towards the constitutional provisions governing the allocations to the judiciary, noting that this was a keen problem affecting the independence of the judiciary.
He recounted a story by a judge who in conversation with a governor was told, “You people [judges] say you want financial autonomy, and you are sacking us from our offices as politicians. If we give you autonomy you will drive us out of Nigeria.”
He also recounted the story of a Chief Judge who had to waylay the governor at the airport to receive the statutory allocation due to the state judiciary. On encountering him, the governor turned to the Chief of Staff and asked him to “do something for them.”
“These two stories emphasise the troubling mindset of the executive as it relates to the disbursement of funds statutorily due to the judiciary,” he said, “It speaks strongly of an intention to keep the judiciary beholden, or a complete irreverence or understanding for the laws that are to be upheld. “
Concurring with the AG of Ekiti state, he added that all other public officers have had their salaries increased but judges.
Maikyau urged members of the Bar and Bench to take responsibility for their role in the state of the dependent state of the Nigerian judiciary.
“What have we done or didn’t do to bring the judiciary to the place it is today? Is it that the National Judicial Council even though it is given the constitutional responsibility to control and disburse funds for both capital and recurrent expenditures of the [specified] courts simply decided to take an aspect of it which relates to the salaries, prepare an estimate, and have that appropriated by the National Assembly? And then conceding what has been constitutionally allocated to it to do, allowed the states to prepare that estimate when the constitution did not give the states that responsibility? In what ways have we allowed this to happen? Allowed the state to take charge of the capital expenditure of these courts when that ought not to have been the case. The NJC has abdicated that responsibility. So why are we unhappy with that situation, when we sat back and allowed that to happen? Also, we are the ones [lawyers], that are given by our training to look at these constitutional provisions and determine what is and isn’t constitutional.”
The panellists concluded that the business of justice is not the concern of only the judiciary, but of everyone including the citizenry who want justice, and the retired justice cautioned lawyers who aspire to the bench to be careful about their reputation, and “protective of their character and competence as these are the things you will need to be a judge.”
Maikyau concluded, “under the military regime, even though the judiciary had lots of challenges and decrees were arbitrarily churned out, the courts were bold enough to look at the decrees and examine their constitutionality despite, the ouster clauses, but we’re not seeing that today.”
“For us to have an independent judiciary, what we need is 80% of the character and integrity and probably 20% of the knowledge of law of those that are appointed into those offices. If that is what we get, then we will be able to have a judiciary that is independent.”