By Innocent Anaba, Henry Ojelu & Onozure Dania
On Monday, state governors agreed to accede to the demand for judiciary autonomy being championed by the Judiciary Staff Union of Nigeria, JUSUN, who have locked and grounded activities in courts across the country for the 14th day running.
The state governors, through Nigerian Governors’ Forum Chairman, and Governor of Ekiti State, Dr Kayode Fayemi, on Monday, at a meeting with representatives of both the judiciary and legislature to harmonise their position in the office of the Chief of Staff to the President, Professor Ibrahim Gambari at the Presidential Villa, Abuja, said all parties had reached an agreement on the way forward.
Fayemi had said a timeframe was in place, and that the implementation of financial autonomy in the states would not be later than the end of May 2021.
In this edition of Law and Human Rights, lawyers who spoke on the development, welcome it, but stressed that what is needed was more than financial autonomy, noting that the appointment of judges must be transparent at all levels of the court and not at the whims of the President or state governors.
Judges appointment must be transparent —Agbakoba, SAN
Former President, Nigeria Bar Association, NBA, Dr. Olisa Agbakoba, while agreeing with JUSUN on their demands, noted that beyond financial autonomy, judges must be transparently appointed.
He said: “The concept of independence of the judiciary is far beyond funding. It has to do with the mode of appointment and security of tenure in office guaranteed to ensure non-interference by any person or authority. On the present impasse, my suggestion is that the judiciary should be funded directly from the consolidated revenue account of the federation and completely independent of the governors as provided by the constitution.”
On the appointment of judges, he said: “Judges will be appointed by the NJC at the federal level but in a more transparent process with inputs from the public and under transparency rules as recommended by the Dahiru Musdapher Committee and at the state level, by the state judicial council subject to confirmation by the Senate and House of Assembly and removed on recommendation only of 2/3 of the whole House of Parliament for stated gross misconduct.”
I hope that the NGF is sincere — Owonikoko, SAN
Mr. Abiodun Owonikoko, SAN, on his part welcomed the decision of the governors but hoped that they (governor) are sincere.
He said: “It’s a welcome development, in the hope that the NGF is sincere. The truth is that the state governors have been acting in utter contempt of rule of law and the constitution from the moment the constitution was amended vide section 121 (3). It’s all the more disheartening that three separate binding judgments of superior courts have put clarity and conclusive imprimatur on the duty of state executive authority to yield and facilitate financial autonomy to the judiciary, all to no avail until the JUSUN strike jolted them into responsiveness.
“The issue of modality for compliance is really an administrative matter. To work, it must be crafted based on grand consultation with critical stakeholders to achieve a workable consensus. Our states survive largely on FAAC allocation from Abuja which is shared on monthly basis.
“It’s, therefore, not out of place to design a remittance formula that guarantees appropriated portion due to the judiciary from consolidated revenue of each state as a first-line charge. The idea of state governors reserving in themselves a prerogative of a minimum threshold of remittance to the judiciary every month is far from ideal.
“It defeats the constitutional stipulation of a first-line charge. There must be a lump sum capital remittance at the commencement of the financial year to enable the heads of the court to exercise meaningful financial and fiscal autonomy as well as budget prioritization on their peculiar needs. Accretion can come on a monthly basis to augment their revenue from monthly FAAC revenue receipts by the state.
“On the role of president and governors in the appointment of judges, I do not see any incongruity in that if the NJC ensures that the very rigorous criteria for shortlisting, screening, and making the final selection already in place are strictly and meticulously enforced. The net result will be that only the best of the best will scale recommendations for apportionment by the head of the executive branch.
“There is much to commend in the present procedure if not abused – the shared power reflects our peculiar constitutional arrangement which contemplates cooperative federalism vertically and horizontally by ceding some role for constructive influence on different arms of government. It’s part of the checks and balances which underpin a representative democracy. All branches of government hold and are expected to exercise powers vested in them in trust for the citizens.”
Appointment of judges must start and end with NJC —Erugo, SAN
Prof. Sam Erugo, is of the view that some arrangements must be made to ensure hitch-free implementation of judicial autonomy.
He said: “The good news is the governors’ agreement to JUSUN demand on judicial financial autonomy which is a constitutional issue that will deepen Nigeria’s democracy. The expression ‘implementation method’ sounds amorphous or equivocal, but the truth is that some arrangements must be made to ensure hitch-free implementation of judicial financial autonomy for the first time. Of course, there is a need to work with stakeholders, which I hope, will include the Bench, the Bar, and the Unions on modalities.
“The modalities will put in place a mechanism or framework to: – determine budgetary and constitutional ‘amount standing to the credit of the judiciary’; establish due financial process, possibly excluding the ‘heads of the courts’, that is, Chief Judges, from direct involvement in fiscal management. Unfortunately, section 121 of the Constitution requires that the funds should be paid directly to the ‘heads of the courts’, of course, in trust; transparently manage the funds.
“These and more are issues to be worked out. One can only advise that parties proceed candidly and ethically to work out the structure. It may require urgent legislative intervention.
There is no doubt that the much-touted independence of the judiciary is unsettled by the process of appointment of justices and Judges which as it were currently, appears to be done by the President and governors respectively for the federal and state courts.
“But that is not exactly the case. The real determination of who is appointed a Justice or Judge of these courts is done by the NJC, hence the President and governors simply ‘appoint’ on the recommendation of the NJC. The reference to the President and governors is supposed to be part of the checks and balances of the three arms of government to enable the President and governors to have oversight over the activities of the judicial arm.
“Unfortunately, the process seems to be misunderstood and sometimes seems to be abused in practice as the Presidency and governors attempt to influence members of the NJC because of the same lack of independence of the judiciary.
“Looking at the constitutional membership of the NJC, with an independent judiciary, the NJC ought not to be influenced in coming up with the recommendations for appointment. In other words, the challenge is the same lack of independence, and to an extent, possible incompetence, or corruption. My candid view for the judiciary to be truly independent is that the appointment of all Justices and Judges must start and end with NJC.”
No true autonomy if president, govs still appoint justices, judges —Ojo
Gbenga Ojo noted that though the announcement by the governors indicates a position shift, the judiciary cannot truly be independent when the President and governors still have great input in the appointment of justices and judges.
He said: “The announcement by the governors is a good omen for the judiciary which will guarantee financial independence for the judiciary. Funds due to the judiciary should be a first charge on the consolidated account. This confirms the slogan that he who pays the Piper dictates the tune.
“There are three organs of government. Each organ must be independent of the other. Of course, there cannot be total independence of the judiciary if the executive has inputs in the appointment of judges. The executive has no inputs in the appointment of members of the National Assembly or assembly employments. It should be an internal affair of the judiciary with considerable control by the National Judicial Council, NJC.
“The Executive should be totally removed from the appointment and removal of judges. It is glaring that there is an overbearing influence of the executive on the judiciary. Except for few bold judges like Justice Oluwa or Kayode Eso of the Supreme Court when the court termed the actions of the Executive as Executive recklessness. This happened under the Military government when the court was supposed to blow a muted trumpet.
“I totally support JUSUN to sustain the tempo until at least they get financial autonomy for the judiciary in Nigeria. A step in the right direction in the first instance. After this, which is a major breakthrough, whatever is left can be looked into and worked out.”
Any implementation method must speak language of constitution —Kabir
A member of the Ekiti Judiciary Service Commission, Kabir Akingbolu posited that any implementation method adopted by the governors must speak the language of the constitution.
According to Akingbolu: “The implementation method needed is not a cosmetic implementation that will not guarantee the independence of the judiciary in the real sense of it but the one that safeguards against undesirable manipulation of the judiciary by the executive. It must be done in such a way that the judiciary will be able to cater for its welfare with clear-cut fiscal autonomy devoid of any executive interference.
“The appointments of judges by the governors on the recommendation of the NJC is not an end in itself neither does it rub off on the independence of the judiciary because the fact that it is the NJC that recommends people for appointment as judges in itself, is a kind of control or check. It would have been a bit ridiculous if the appointment is made directly by the executive.
For instance, in-state judges, the recommendation is made by State Judicial Service Commission to the National Judicial Service Commission, which in turn recommends to the governors. So, I believe that this is democratic and full-proof of unnecessary manipulation and it does not hinder the independence of the judiciary so much.
“For crying out loud, how can the governors say a fixed minimum amount will be paid to the judiciary monthly? I believe this is against the spirit of true independence of the judiciary. The implementation must be all-encompassing and speak the language of the constitution.”
Autonomy must be based on constitutional provision —Ufeli
Executive Director, Cadrell Advocacy Centre, Evans Ufeli also supports the view that only the constitutionally approved method should be followed.
He said: “There is nothing like implementation methods or working out the modalities as the chairman of the Governor’s Forum refers, the law is clear. The 1999 Constitution as,amended in sections 81 (3) and sections 121 (3) is without ambiguity. The funding of the judiciary should go to them directly with immediate effect.
“The legislature by the aforementioned provisions receives its funding directly from the Consolidated Revenue Funds of the state as provided for by the constitution, so why hold the judiciary hostage and even after multiple court judgments, the judiciary is still being victimized by the executive. This is executive banditry.
“The Nigerian governors, some of whom are lawyers are not only in breach of the constitution they all took an oath to defend, they are in contempt of court as there are two judgements already standing in the favour of the financial autonomy of the judiciary which they have arrogantly refused to obey. If it were not for the immunity the governors enjoy under section 308 of the constitution, my recommendation would have been that a contempt proceeding be commenced against the 36 state governors for violating the judgment of a competent court of law.
“On the appointment of judges, if we are patriotic enough, the President or governors can still appoint judges and not tie them to a tether through financial dependence and since you cannot subject the emergence of judges through election process like the executive and legislature do, we must appoint judges and make them function independently for the larger prospect of national integration and harmony.”
Financial autonomy more important for judiciary —Igbinedion
Dr Simon Igbinedion, immediate past Sub-Dean, Faculty of Law, Unilag, is of the view that who appoints the judge is not a major problem, but financial autonomy.
He said: “The implementation method should be as dictated by s. 121(3) Constitution of the Federal Republic of Nigeria 1999, namely, that what is due to the judiciary from the Consolidated Revenue Fund must be paid directly to the designated accounts of the heads of the courts.
As to the appointment of judges and justices by the executives, there is no much one can do about it for now. They can continue to participate in the appointment of the judicial officers as prescribed by the Constitution. The consolation in executives appointing judicial officers lies in the fact that the judicial officer can regain the spirit of independence he or she may have lost by reason of his or her being appointed by the ‘executive’ if the judiciary’s financial autonomy is actually guaranteed and implemented.
Autonomy must also extend to the appointment process —Malachy
Immediate past National President of Committee for Defence of Human Rights, CDHR, Malachy Ugwummadu wants judiciary autonomy to also extend to the process of appointment of judicial officers.
He said: “As you have seen, the on-going national strike by JUSUN is very popular and massively supported by critical stakeholders in the justice sector, including the NBA that joined them in their protests across the country on Monday.
“Part of the reasons for this national acceptance is that the action is constitutional. S.121(3); S. 81(3) of the Constitution of the Federal Republic of Nigeria 1999(As Altered). Secondly, there have been judicial pronouncements upholding the positions of JUSUN and Dr. Olisa Agbakoba, former President, NBA and lastly, the President of the FRN has issued the Executive Order 10 to operationalise the express provisions of the Constitution particularly when the state governments disobey the law.
“By S. 287(3) of the 1999 Constitution, the governors do not have options or the luxury of time bidding for more time for implementation because we’re also dealing with judgment of competent courts of law which must be obeyed and enforced.
“Finally, the call for judicial autonomy should not be limited to mechanisms for financial autonomy but also extended to the process of appointments into judicial offices which must be transparent and public.”
On the mode of appointing judges, he said: “Invitation for appointments into the judiciary should be widely publicized. The shortlisted candidates should also be published with requests for comments from both the public and the legal profession on their moral rectitude and professional knowledge and competences respectively. When appointed, the security of their tenure as it is presently must be guaranteed.”
On who should carry out the exercise, he said: “All appointments into the state judiciary should be by the State Judiciary Service Commission to be confirmed by the State Houses of Assembly for the Chief Judge of the state and judges of the respective states.
“Similarly, the Federal Judiciary Service Commission should recommend eligible candidates for appointment into the Federal Courts subject to the confirmation of the Senate. It allows for broad spectrum participation of Nigerian representatives in the appointment processes. Let the NJC concentrate on issues of promotions and sanctions. If it requires the amendment of the Constitution, let it be factored into the proposed amendments.”
Governors’ plan is purely political —Omodele
Yemi Omodele believes the governors are just playing politics with their May schedule for commencement of autonomy for the judiciary.
According to him: “The decision of the governors on the implementation of the autonomy of the judiciary by May 2021 is political. The governors are politicians and are trying to display their political strategy. However, looking at the way and manner in which appointments of judicial officers are done in Nigeria, I think the word autonomy of the judiciary is incomplete. Appointments done, the appointees always have sympathy for the appointors. It suffices to say that the clamouring for autonomy of the judiciary should be total and not on finance alone as projected now.”
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