Report: The President, 36 Governors and the Judiciary’s Financial Autonomy

Last year, the Executive arm of the 36 states government of the federation went before the Supreme Court to challenge the Presidential Executive Order No.10 of 2020 signed in May of the same year by President Muhammadu Buhari on financial authonomy for the Judiciary.

The original jurisdiction of the Supreme Court in such suits is provided under Section 232 (1) of the Nigerian Constitution, 1999 thus: “The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a state, or between states if, and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”

The matter, filed through their respective attorneys general, seeks an order of the Supreme Court quashing Buhari’s Executive Order for being unconstitutional. The sole respondent in the suit is the Attorney General of the Federation, Abubakar Malami, SAN.

In the suit filed on their behalf by nine Senior Advocates of Nigeria, led by former President of the Nigerian Bar Association, Mr Augustine Alegeh, SAN; and six other lawyers, the 36 states explained that President Buhari, by virtue of the Executive Order he signed on May 20, 2020, had pushed the Federal Government’s responsibility of funding both the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal, to the state governments.

The applicants contended that Mr. Buhari’s Executive Order No. 00-10 of 2020 was a clear violation of sections 6 and 8(3) of the 1999 Constitution, which make it the responsibility of the Federal Government to fund the listed courts.

The 36 states, which said they had been funding the capital projects in the listed courts since 2009, are also praying the Supreme Court to order the Federal Government to make a refund to them.

“Since the 5th of May 2009, the defendant had not funded the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the plaintiffs’ states, apart from paying only the salaries of the judicial officers of the said courts.

“The plaintiffs’ states have been solely responsible for funding the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the plaintiffs’ states, which the defendant has failed and/or refused to fund,” the courts papers show.

What Order No. 10 seeks

The Executive Order made it mandatory for all states to include the allocations of both the legislature and the judiciary in the first-line charge of their budgets.

The order also mandates the accountant-general of the federation to deduct from source amount due to the state legislatures and judiciaries from the monthly allocation to each state, for states that refuse to grant such autonomy.

The Executive Order made it mandatory for all states to include the allocations of both the legislature and the judiciary in the first-line charge of their budgets.

The order also mandates the accountant-general of the federation to deduct from source amount due to the state legislatures and judiciaries from the monthly allocation to each state, for states that refuse to grant such autonomy.

HAGF’s statement

In the statement released by the office of the Attorney-General of the Federation, Abubakar Malami, a Senior Advocate of Nigeria, SAN, following the accent, the Order provides thus:

“That the Accountant-General of the Federation shall, by this Order and such other orders, regulations or guidelines as may be issued by the Attorney General of the Federation and Minster of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from money allocated to any state of the Federation that fails to release allocation meant for the state legislature and judiciary in line with the financial autonomy guaranteed by Section 121(3) of the constitution of the Federal Republic of Nigeria 1999 (as amended),”

Article 6(1) of the Order provides that “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 Courts complexes, Sharia Court of Appeal, Customary Court of Appeal and court complexes of other courts befitting the status of courts.”

The affidavit

In the affidavit deposed to by a lawyer in the legal team, Chinweoke Onumonu, she averred that each attorney-general of a state informed her that their state governments had expended total sums in funding capital and recurrent expenditure of the state High Court and Customary Court of Appeal from May 5, 1999 to January 31, 2020.

The states further contend that the Federal Government, which will be represented by the Attorney-General of the Federation, has the constitutional responsibility to fund the recurrent and capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the states.

The states also submitted that apart from salaries of judicial officers in the states, which are currently paid by the Federal Government through the National Judicial Commission (NJC), they are saddled with the responsibility of capital and recurrent expenditure, which obligation they say “has tremendous impact on the finances of the plaintiff states (36 states) and currently accounts for a significant portion of the revenue accruing to the plaintiff states on a continuous basis.”

According to them, some of their capital expenditures include court rooms, residential quarters, furniture, vehicles, generators and others, while they continue to bear recurrent expenditures in the courts, except for the salaries of judicial officers.

“In the face of continuing and persistent refusal of the defendant (Federal Government) to fulfill its constitutional duty and obligation, the plaintiffs have invoked the original jurisdiction of the Supreme Court to resolve the dispute and determine the respective rights.

Financial Autonomy and the Judiciary’s Institutional Independence

The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and distinct arm of government.

Independence of the judiciary is for the benefit, and is the basic right of the people. It is not the personal privilege of the judge.

Judicial independence is the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private. 

The funding of courts is closely linked to the issue of judicial independence, in that it determines the conditions in which the courts perform their functions. Sufficient resources are essential to ensuring judicial independence from other State institutions and private parties, so that the judiciary can perform its duties with independence, integrity and efficiency.

It is the duty of each State to provide adequate resources to enable the judiciary to properly perform its functions. This functions include appointing a sufficient number of judges in relation to caseloads, providing the courts with necessary support staff and equipment (including office automation and data processing facilities), and offering judges appropriate personal security, adequate training, remuneration and emoluments.

The fundamental concept of judicial independence exists for the benefit of all citizens. It is the only way to ensure a just, democratic nation.

A Judiciary lacking significant autonomy will upend virtually all efforts invested to enshrine a sane society.

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