The delay by various state governors in implementing the Executive
Order 10, which seeks to establish the financial autonomy of the
legislature and judiciary at the state level, recently forced the
Parliamentary Staff Association of Nigeria, PASAN, and the Judiciary
Staff Union of Nigeria, JUSUN, to embark on protests, culminating into
a nation-wide strike called by both associations. The strike called by
JUSUN, in particular has a very devastating effect upon lawyers,
litigants and the ordinary Nigerians.
President Muhammadu Buhari had in May 2020, signed the Order, also
known as the “Implementation of Financial Autonomy of State
Legislature and State Judiciary Order, 2020”. The objective of the
Order is to enforce the implementation of the 4th Alteration to the
Constitution and provide a practical framework for the legislative and
judicial arms of state governments to have financial autonomy.

The 4th Alteration, which amended Section 121(3) of the Constitution,
provides that: “Any amount standing credit of the – a) House of
Assembly of the state, and b) Judiciary, in the Consolidated Revenue
Fund of the state shall be paid directly to the said bodies
respectively; in the case of judiciary, such amount shall be paid
directly to the Heads of the Courts concerned.”

Many governors were however, not comfortable with the Order while
there has also been a debate about its constitutionality by legal
experts.

Subsequently, the President had a teleconference with the Nigerian
Governors’ Forum, NGF and decided to delay gazetting the Order until
Attorney General of the Federation meets with the governors and
resolve issues they might have with it.

Prior to the Order, state governors usually determine amounts to be
given to other arms of government along with the payment of the said
amount due and this is evidenced in the yearly budget presented to
their various Houses of Assembly allowing them to wield the political
and economic powers over the states’ judiciary and legislative arms of
government relying on Section 121(1) of the Constitution, contrary to
what was provided under Section 120 and 121 (3) of the Constitution.

The situation is such that it is only at the federal tier of
government that the doctrine of separation of powers as provided in
the Constitution between the legislature and judiciary is scrupulously
practised. The state governors have rendered state assemblies as mere
rubber stamps subject to their whims and caprices.

Despite the provision of the Constitution and the laws enacted by the
National Assembly in this regard, state governors have not allowed
their state legislatures and judiciaries the necessary financial
autonomy to perform their functions as required under the democratic
practice.

Before this amendment, Section 121(3) – and the similar provision
contained in Section 81 of the Constitution, which relates to the
federal government – provided autonomy for only the judiciary.

The president’s executive order authorizes the Accountant-General of
the Federation to deduct from source, the money due to the
legislatures and judiciaries of states from the monthly allocations of
states whose executives fail to grant financial autonomies to the
other two arms of government.

The order also directed every state government to set up a committee
comprising the Commissioner of Finance, the Accountant-General of the
State, a representative of the state’s Budget Office, the Chief
Registrar of the High Court, Sharia Court of Appeal and Customary
Court of Appeal as applicable, the Clerk of the House of Assembly and
the Secretary of the State Judicial Service Committee or Commission.

This committee, according to a legal practitioner, Funmilayo Odude, is
to be accorded legal recognition in the appropriation laws of the
states. She explained that he committee’s main task is to, where
applicable, determine based on the revenue profile of the state, a
workable budget for each arm of the state government.

The executive order also provides that each state judiciary is to set
up a state judiciary budget committee, which would be responsible for
preparing, administering and implementing the budget of the judiciary.
The committee would comprise of the state’s Chief Judge as chairman,
the Grand Khadi of Sharia Court of Appeal or President of Customary
Court of Appeal as applicable, and two members of the Judicial Service
Committee/Commission to be appointed by the Chief Judge. The Chief
Registrar is to serve as Secretary of the committee.

According to Odude, the lack of financial autonomy for the legislative
and judicial arms of government has been a long-standing issue,
especially with respect to the judiciary, which was even guaranteed
such autonomy prior to the 4th Alteration.

She said: “The desire to uphold judicial financial autonomy led
prominent Senior Advocate of Nigeria, Olisa Agbakoba, to file a suit
against the Attorney-General of the Federation (AGF), the National
Judicial Council (NJC) and the National Assembly in February 2013. His
suit challenged the extant methods of appropriating the judiciary’s
budget in the Appropriation Bills, as opposed to being a first-line
charge paid directly to the judiciary. He contended that this was
contrary to the constitutional provisions of Section 81(3) of the 1999
Constitution.

“The Judiciary Staff Union of Nigeria (JUSUN) instituted a similar
action against the NJC, AGF and the Attorneys-General of the states in
the same year, and also claimed reliefs for the implementation of the
financial autonomy of the judiciary at both the federal and state
levels in accordance with the provisions of Sections 81(3) and 121(3)
of the 1999 Constitution. Both suits were decided in favour of the
financial autonomy of the judiciary. However, more than five years
later, major parts of the judgments are still being disobeyed as state
governments continue to breach the Constitution.

“The interim report of the Presidential Implementation Committee on
the Autonomy of the state legislature and state judiciary states that
no state of the federation, apart from the Federal Capital Territory
(FCT), has complied with the provisions of Section 121(3) of the
Constitution. The committee’s report ties the non-compliance to the
non-availability of uniform modalities for full compliance as
obtainable at the federal level. Thus, the report posits that a
template, modeled after the framework at the federal level, should be
developed to serve as a uniform standard for implementation by the
states. This position is what eventually led to Executive Order 10 of
2020.

“In his written address supporting his originating summons, Agbakoba
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.”

Odude further stated in an article, titled: “Achieving judicial and
legislative financial autonomy in the states” that the efficiency of
the judiciary hinges on its independence, which is inextricably tied
to its financial autonomy.

“The ability of state legislatures to truly provide checks and
balances for the state executives is reduced to nothing when the
lawmakers have to lobby and practice eye-service for the purpose of
accessing funds that legitimately belong to them,” she stressed.

Also, a Chief Magistrate with the Rivers State Judiciary, David
Ihua-Maduenyi, commended the PASAN and JUSUN for fighting for the
implementation of the autonomy. He particularly hailed President
Buhari for setting the stage for the implementation by signing the
Order on May 22, 2020.

According to him, the JUSUN had gone a step further in this struggle.
It has a subsisting judgment of a court to support and backup its
fight. He added that the call and action of PASAN and JUSUN, is not
just for the implementation of the constitution, but for the
enforcement of the subsisting judgment of a court of competent
jurisdiction.

“Since the federal government appears to be sympathetic to the plights
of the states’ legislature and judiciary, JUSUN should move to enforce
the terms of the subsisting judgment, by compelling the federal
government (Accountant-General of the Federation), to deduct from the
funds accruing to the states, from the Federation accounts, and pay
same to the Consolidated Revenue Funds in favour of the states’
legislature and Judiciary, to be accessed by the other states organs
directly.
“Once this is done, the governors would be the ones begging for a
meeting and a political settlement to the issue,” Ihua-Maduenyi said.
Fortunately, the Nigerian Governors Forum, NGF, Conference of Speakers
of State Legislature and other governance stakeholders announced that
they reached a resolution over the implementation of financial
autonomy for state legislature and judiciary. The NGF specifically
said that the final document of the agreement should be ready for
implementation by May 2021.

The NGF chairman and Ekiti State governor, Dr. Kayode Fayemi,
disclosed this after a recent meeting, which was held in Abuja and
presided by the Chief of Staff to the President, Prof. Ibrahim
Gambari.

“We are here for legislative and judicial autonomy and Governors;
Speakers of State Assemblies and the Judges of the States are on the
same page as far as this issue is concerned.

“We just emerged from a meeting with the Solicitor General of the
Federation, the representatives of the judiciary and those of the
Conference of Speakers and we are all in force; an agreement has been
reached.
“The issue is about implementation. There has been no objection from
governors on judicial and legislative autonomy.

“As a matter of fact, it would not have passed if governors were not
in support in the first instance. So, that issue has been fully and
holistically addressed,” Fayemi said.

The National Assembly had during the PASAN and JUSUN struggle, thrown
its weight behind the financial autonomy for the judiciary and
legislature. The Senate specifically declared that the independence of
the judiciary is non-negotiable, adding that no democracy can survive
without being founded on the rule of law and the independent
judiciary.

The chairman, Senate Committee on Judiciary, Human Rights and Legal
Matters, Senator Opeyemi Bamidele (APC Ekiti Central), who spoke to
journalists in Abuja, decried the refusal of various state governments
to grant financial autonomy to the judicial arm of government despite
constitution amendment to that effect and even Executive Order 10,
issued by President Buhari.

Bamidele therefore urged the state governors to do the needful on the
matter, saying “it is laughable that at this point, we are still
grappling with the need to grant independence to the judiciary arm of
government at the state and local government levels.”

“The National Assembly has been making laws that would guarantee full
autonomy to the judiciary at the federal level.

“The National Assembly does not make laws for the states; such power
resides in the state Houses of Assembly. Judiciary at the Federal
Capital Territory is independent because we have done what we are
supposed to do. What is next is for the state Houses of Assembly to do
what they are supposed to do,” he explained.

There is no gainsaying that the legislature and judicial arm of
government are important arms of government in a democratic society
and it is for this reason the Constitution has made provision to
ensure their independence while also encouraging checks and balances
as would be observed, for example, from the examination of Section 120
of the Constitution.

It is for this reason that government is operated under a tripartite
arrangement whereby provision is made for an organ to make laws, for
another to execute the laws so made, and for yet another organ to
interpret the laws, which is known as separation of powers.

 

QUOTE:
“Since the federal government appears to be sympathetic to the plights
of the states’ legislature and judiciary, JUSUN should move to enforce
the terms of the subsisting judgment, by compelling the federal
government (Accountant-General of the Federation), to deduct from the
funds accruing to the states, from the Federation accounts, and pay
same to the Consolidated Revenue Funds in favour of the states’
legislature and Judiciary, to be accessed by the other states organs
directly.

 


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