By S.O. Akobe, Esq.
On the 6th of April, 2021, JUSUN (an umbrella association or union of all Judiciary workers in Nigeria) embarked on an indefinite industrial action. The reason for the strike is to ensure that the Governors of all the States of the Federation implement the much talked-about financial autonomy for the judiciary.
In an ideal democratic clime, three Arms of Government thrive: The Executive, the Legislature, and the Judiciary. See sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). By constitutional provisions under the 1999 Constitution, the three arms of Government ought to be independent of each other but without prejudice to certain stipulated checks and balances amongst them as provided by the Constitution itself. The independence and/or or autonomy envisaged under the Nigerian Constitution includes control of finances by the respective arms of Government. For the State Judiciary, section 121 (3) of the Constitution provides, 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 the courts concerned. (Emphasis ours). Equivalent provision is contained in section 81(3) of the Constitution for the Federal Judiciary.
The above constitutional provision is supreme and same is binding on all persons and authorities in Nigeria including all the 36 Governors in Nigeria and their non-juristic Nigeria Governors Forum (NGF). What is more, the word shall is used in the said section 121 (3) of the Constitution, and by judicial authorities, the use of the word shall in an enactment connotes mandatoriness which does not give room for discretion. The Supreme Court of Nigeria in General Muhammadu Buhari v. Independent National Electoral Commission (2008) LPELR – 814 (SC), held thus; “When the word “shall” is used in a statute it connotes the intendment of the legislator that what is contained therein must be done or complied with. It does not give room for manoeuvre of some sort, or evasiveness. Whatever the provision requires to be done must be done, and it is not at all negotiable…” (per MUKHTAR, JSC (as he then was, at pages 276 – 277, PARAS. E –D). On the mandatory connotation of the word “shall” in a statute, the Court of Appeal per Owoade, JCA in Mr. Udak Etim Okon v. Mr Ekaette Udak Okon (2016) LPELR – 42056 (CA) at page 9, paras. D-F, held thus: “As a general rule the use of the word “shall” connotes and conveys a mandatory message in a statute. See Melaye v Tajudeen (2012) 15 NWLR (Pt. 1323) 315. Fidelity Bank Plc v Monye (2012) 10 NWLR (Pt. 1307) 1, Adeosun v Governor Ekiti State (2012) 4 NWLR (Pt. 1291) 581, Dantata v Mohammed (2012) 8 NWLR (Pt. 1302) 366”.
Unfortunately, rather than simply obey the above cited mandatory Constitutional provision on financial autonomy for the Judiciary, the Nigerian Governors under the aegis of Nigeria Governors Forum (NGF) have decided to constitute themselves into a clique of stumbling blocks against the enforcement and implementation of the letters and spirit of the Constitution. Rather than being concerned with public good, the NGF is only determined to build their members’ (the Governors) selfish interest for as long as they remain in office.
Without mincing words, I hold the firm view that having regard to the use of the word “shall” in section 121(3) of the Constitution, the Nigerian Governors and their Forum thereof have no say let alone an approval to give as far as financial autonomy for the Judiciary is concerned. As a matter of fact, even the President has no power or discretion to exercise on the issue of financial autonomy for the Judiciary. Hence, we dare say with every sense of responsibility that even the so-called Executive Order No. 10, 2020 signed by President Muhammed Buhari was not only superfluous but also a clear case of a militarily-inclined mockery of the Constitution. The Executive Order No. 10 of 2020, in my humble assessment, is a veiled monster cynically designed to subject the financial autonomy of the Judiciary to the control of the Attorney-General of the Federation. It is like granting financial autonomy to the Judiciary with one hand and taking same away from them with another hand. That is a gift of the devil!
On the issue of financial autonomy for the Judiciary, the provision of the Nigerian Constitution is enough to be relied upon for its full implementation! No Executive Order is needed to implement and/or enforce the provisions of the Nigerian Constitution especially where there is no ambiguity in the constitutional provision(s) sought to be enforced. Even where there is ambiguity in the Constitution or any other law, it is the courts that are constitutionally empowered to interpret same.
The above having been said, the begging question therefore is, from which legal source did the Governors under the auspices of NGF draw their strength and powers of opposition against the full implementation of financial autonomy for the Judiciary? Obviously, the Nigerian Governors and/or their umbrella Association (NGF) are arrogating to themselves powers which in law they do not possess and while enjoying the pleasure of this brazen impunity, they have magnified themselves over and above the Nigerian Constitution which carries a mandatory provision on financial autonomy for the Judiciary.
In my view, President Muhammed Buhari has not lived up to expectation on the ongoing JUSUN strike as he appears to be lacking the needed political will for the full implementation of financial autonomy for the Judiciary. Thus, it is either the President is secretly behind the rebellious Governors or he has become too weak to the extent that Governors are now more powerful that the President on constitutional issues of public importance. If it were not so, what will it cost the President to put necessary measures in place and direct the Minister of Finance and/or the Accountant General of the Federation to deduct from source and pay directly to the heads of courts any amount standing to the credit of the Federal and States’ Judiciaries as contemplated under sections 81(3) and 121 (3) respectively, of the Constitution? Is the Minister of Finance answerable to the Governors or the President? I understand that there may be lacunas in the Constitution as to how the provision of section 121(3) of the Constitution may be enforced or implemented but that should not be a justification for the resistance of financial autonomy for the Judiciary by the Governors more so, as there is an unappealed judgments of the Courts in favour of financial autonomy for the judiciary as a constitutional ordinance. (See the following cases: Judiciary Staff Union of Nigeria v. National Judicial Council and Governors of the 36 States in Suit No: FHC/ABJ/CS/667/13; Olisa Agbakoba v. FG, the NJC and National Assembly in Suit No: FHC/ABJ/CS/63/2013; and Olisa Agbakoba v. AG, Ekiti State & 2 Ors. in Suit No: NAD/56/2013). In all these cases, the Courts held that financial autonomy for the judiciary is a constitution provision. Unfortunately, the Governors are not ready to obey the decisions of the courts on this point.
Well, beyond the current JUSUN strike, one undisputed fact is laid bare as far as the Nigerian Governors vis-à-vis matters of public interest are concerned. That undisputed fact is that when it comes to issues affecting their political interests with less importance to the good of the masses, the NGF will be divided along party lines to the applaud of some gullible Nigerians but when it comes to issues of public importance, the NGF will be very much united in opposing same. On the ongoing JUSUN strike, all the Governors are speaking with one voice in opposition to it except the Bauchi State Governor who has openly expressed his readiness to implement financial autonomy for the Judiciary in his State. There is nothing like PDP Governors or APC Governors on the current issue all because their selfish interest is at stake. This is the provocative situation we find ourselves as a nation and it is indeed, a very sorry spectacle.
The Judiciary and the Legislature are arms of Government just as the Executive is. No arm of government should be superior to others just because it exacts unconstitutional monopoly of the money meant for the other arms. If the Executive Arm of Government cannot obey the Nigerian Constitution as well as court judgment, what other good can one expect from them? One would ordinarily expect some Governors like Nyesom Wike Rivers State, Rotimi Akeredolu (SAN) of Ondo State and Aminu Waziri Tambuwal of Sokoto State, who are Legal Practitioners to lead the struggle for financial autonomy for the Judiciary but that is not the case at the moment as they appear to be the most relunctant and docile Governors on the issue of implementation of financial autonomy for the Judiciary in Nigeria.
Sincerely speaking, I know not of any democratic nation in the world that would allow its courts to be grounded for one month and still counting without its leaders being bothered at all as it is in Nigeria. Even under the military regime, the courts function. Ironically, under a supposed democratic dispensation the courts are dispensed with for more than a month now and no one cares to solve the problem. What a tragedy!
As JUSUN strike continues, many inmates awaiting trials are in various prisons in the Country with no certainty as to when the strike would be called off. One of the dangers of this is that disgruntled inmates may embark on jail break if the strike continues to linger. Apart from the inmates in prisons, a lot of fortunes have been lost as a result of this strike. There are several cases of wrong Bank transfers which would have been remedied through court order but for the current strike. Several rights are violated daily with no place to go for redress. Lawlessness abound as people now resort to self-help since courts do not exist in Nigeria anymore! As a matter of fact, nothing is left out to certify Nigeria as a Failed State! Show me a country where there is leadership failure and I will give you a perfect picture of a failed State.
The ongoing JUSUN strike was avoidable assuming we have good leaders in Nigeria. JUSUN is not asking for too much; they are only fighting for the implementation of what the laws of our land have provided. The NGF has no authority in law to dictate otherwise! It is a sad commentary that an arm of government is asking for financial autonomy in the hands of another arm of government! This is not what democracy contemplates and neither is it what our Constitution envisages. The Governors are guilty of constitutional rape on issue of financial autonomy for the judiciary which led to the ongoing JUSUN strike. Just because of 36 Governors in a Country of above 200 million population all the courts in Nigeria are locked up indefinitely and the rights and interests of millions and millions of Nigerians are trampled upon daily without redress for the past one month. If indeed this is what democracy is all about, then I pray the Military to take over because under the military, the courts operate!
Sadly, the Nigerian State is bleeding at the behest of the bad leaders in the helm of affairs. In Nigeria, it is one problem, too many. What we have are leaders who fight against the common good of the people they profess to lead. Constitutionally, a Governor cannot stay beyond eight years in office. Hence, Governors come and go like the nomads of this world but government and its various arms and institutions abide always. Thus, instead of supporting policies that can make our government and its institutions better off for centuries to come, our Governors are all saying in unison, “Though it may be, but certainly not in our own time”!
The struggle for the implementation of financial autonomy for the Judiciary is a long-term agitation for the good of our judicial system but for their own short-term pleasures, greed and selfish interest, the Nigerian Governors are opposing same. They will surely fail!
Dear JUSUN, hold unto your agitation(s) and do not give up for I sure know that the Pharaohs and Herods of this nation shall soon collapse and fade away!
(S.O. Akobe, Esq. can be reached via [email protected])
