By Chief Jibrin Samuel Okutepa, SAN, Bencher
It is no longer news that the Hon Minister of the FCT, Nyesom E.Wike Esq, Life Bencher, is said to have secured the approval of Mr. President to build 40 houses for judicial officers of the High Court of the FCT, Federal High Court and Court of Appeal, Abuja. In a widely televised media chat on the 13th of November 2024, the Hon Minister who himself is a lawyer, justified the decision to build these houses for Nigerian judges with many reasons, which reasons with profound respect did not appeal to me in the least and the reasons seemed to overlook the legality and constitutionality of the project.
1.0. There is no doubt that the Hon Minister of the FCT is a lawyer. He knows the law, although God forbid that he should know all the law. He is not an ordinary minister whose qualification is a Secondary School Certificate or its equivalent as defined by Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A lot has been said by well-meaning Nigerians, and I am proposing to examine the legality or constitutionality of this Housing project for judges to be undertaken by the FCT Minister and not the National Judicial Council.
2.0. The Federal Capital Territory (FCT), Nigeria is a creation of law and operates under specific legal frameworks, which also outline the duties and functions of the Minister of the FCT and the constitutional provisions governing the financial autonomy of the Judiciary. With the recent passage of Act No. 28 of 2023 and subsequently assented by Mr. President, even if Mr. Wike had built houses for judges before this Act was passed and signed with all the best of intention, can he or any other member of the executive arm of government, still undertake housing and other capital projects for Nigerian judiciary without the NJC? I do not think so.
3.0. There is no debate that Act No. 28 of 2023 amends the Nigerian Constitution to grant financial independence to the Judiciary. The question then arises whether the Minister of the Federal Capital Territory (FCT) has the legal stand to initiate projects, such as the construction of housing for Judges, that may potentially conflict with the constitutional autonomy granted to the Judiciary. In examining the legality of such actions of the Minister of the Federal Capital Territory, focus will be placed on the following aspects:
- The powers of the Minister of the FCT;
- The role of the Judiciary in the context of constitutional amendments;
- The allocation and control of funds meant for the Judiciary;
- The legal implications of the Minister’s decision.
POTENTIAL CONFLICTS OF INTEREST AND THE APPEARANCE OF IMPROPRIETY: THE POWERS AND DUTIES OF THE MINISTER OF THE FEDERAL CAPITAL TERRITORY
ROLE AND POWERS OF THE MINISTER OF THE FCT:
4.0. The Minister of the FCT has significant powers regarding land management, urban planning, and development within Abuja, as outlined in various statutes, such as the Federal Capital Territory Act, Cap. F6, LFN 2004, the Urban and Regional Planning Act, Cap. 136, LFN 2004, and the Land Use Act. However, these powers are not without limitations, especially when they intersect with other constitutional provisions, particularly those that protect the Judiciary’s autonomy. Section 302 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:
“The President may in the exercise of the powers conferred upon him by Section 147 of this constitution, appoint for the Federal Capital Territory, Abuja a minister who shall exercise such powers and perform such functions as may be delegated to him by the president, from time to time.”
The power the president can delegate to the Minister must be the Executive powers set out in Section 5 of the constitution and does not extend to powers vested in the National Judicial Council, NJC.
5.0. Under the above section and other Sections of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), such as Section 299 which empowers the Minister to operate as Governor of a State, the Minister of the Federal Capital Territory (FCT) is responsible for the governance of the Federal Capital Territory (Abuja), and the administration of its affairs. The Minister’s powers are largely executive in nature and pertain to urban planning, infrastructural development, land management, and the overall administration of the territory. However, the powers of the Minister are defined within the framework of the Constitution and he must therefore adhere to the principle of separation of powers and respect for the autonomy of other arms of government, including the Judiciary.
6.0. Key powers of the Minister include:
6.1. Urban Planning and Infrastructure Development: The Minister oversees urban development, including construction projects, land allocation, and zoning within the FCT. Section 18 of the Federal Capital Territory Act (Cap. F6), Laws of the Federation of Nigeria empowers the Minister to manage land within the FCT, allocate land, and develop the Capital. However, land allocation and displacement of occupants typically require adherence to specific procedures (including compliance with zoning laws, fair compensation, and consideration of stakeholders’ rights).
6.2. Administration of Land: The Minister has the authority to manage land within the FCT, including its allocation and re-development.
6.3. Coordination of FCT Agencies: The Minister is responsible for coordinating the activities of various agencies within the FCT, including those related to urban development, transportation, and housing.
7.0. It must be stated, however, that these powers are not limitless. The Minister must operate within the scope of the law and cannot usurp the powers of other arms of government, particularly the Judiciary, especially after the constitutional amendment granting financial autonomy to the Judiciary. As admirably put by his lordship Ogunbiyi JSC as he then was in Kayili vs. Yilbuk (2015) 7 NWLR (Pt. 1457) 26 at PP. 55 at Paras D-G., the constitution is very clear and specific on the separation of powers between the arms of government to wit: the executive, legislature and the judiciary at both federal and state levels; thus, the executive cannot exercise or usurp the powers of the judiciary and vis-visa.
THE LEGAL FRAMEWORK FOR JUDICIAL AUTONOMY POST – 2023 CONSTITUTIONAL AMENDMENT
8.0. The Amendment done to the Constitution in 2023 by Act No. 28 is a landmark piece of legislation that grants the Judiciary financial autonomy. Specifically, in Section 81(2), (3) and (4), the constitution provides that:
“(2) The heads of expenditure contained in the estimate other than expenditure charged upon the Consolidated Revenue Fund of the Federation by this constitution shall be included in a bill to be known as an Appropriation Bill, providing for the issue from the consolidated revenue funds of the sums necessary to meet that expenditure and the appropriation of those sums for the purpose specified therein.
(3) The amount standing to the credit of the – Judiciary in the consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the Heads of the Court established for the Federation and the States under section 6 of this constitution.
(4) If in respect of any financial year, it is found that:
(a) the amount appropriated by the appropriation Act for any purpose is insufficient; or
(b) a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act, a supplementary estimate showing the sums required shall be laid before each House of the National Assembly and the heads of any such expenditure shall be included in a supplementary Appropriation Bill.”
9.0. It is clear from the above provisions that the funds meant for the capital and recurrent expenditure of the Judiciary, shall be directly disbursed to the heads of Courts, including the Chief Justice of Nigeria (CJN) and the heads of other courts in the states including the Chief Judge of the FCT, Chief Judge of the Federal High Court and the President of the Court of Appeal. It was the intention of the lawmakers that the judiciary shall no longer rely on the executive or legislative branches for its funding. This is to ensure the independence of the Judiciary from political influence. Before this amendment, the Judiciary through the National Judicial Council (NJC) would prepare its budget which covered the operation of various courts and present the proposed budget to the National Assembly (Senate and House of Representatives) for review, amendment and approval. After approval, the National Judicial Council would coordinate the activities of the Judiciary therefrom but would have no control over the disbursement of funds to the Judiciary.
11.0. The Judiciary had no control over its funding; it relied on the Executive and Legislature for its funding creating the potential for political interference. The 2023 amendment to the Constitution corrects this by providing a direct and independent funding stream for the Judiciary, reinforcing the principle of separation of powers and the independence of the judicial arm of government. Under this constitutional amendment, it is clear that the financial management of the Judiciary, including capital expenditures, such as the construction of housing units for Judges, falls under the purview of the Judiciary and its administrative organs; not the FCTA, the Minister, the President himself or any member of the executive arm. The direct allocation of funds to the Judiciary is designed to preserve its autonomy and prevent any undue influence or control by the executive branch, including the Minister of the FCT.
ANALYSIS OF THE MINISTER’S ACTION IN CONSTRUCTING HOUSING UNITS FOR JUDGES
12.0. In September 2024, the Federal Executive Council (FEC) approved the construction of 40 housing units for Judges and justices in the FCT. The FCT Minister, Nyesom Wike, revealed this to State House correspondents after the 18th Council meeting, which was chaired by President Bola Ahmed Tinubu, at the Aso Rock Villa, Abuja. He said the decision was part of the government’s Renewed Hope Housing agenda to provide secure and convenient accommodation for judicial officers. Of the 40 units to be constructed in the Katampe District, 20 will be allocated to the FCT High Court, 10 to the Federal High Court, and 10 to the Court of Appeal. The land on which the houses would be built was seized by the FCT administration from the construction giant, Julius Berger Nigeria. The Minister of the Federal Capital Territory’s action of constructing housing units for Judges raises several legal questions:
DOES THE MINISTER HAVE THE LEGAL AUTHORITY TO CONSTRUCT HOUSING UNITS FOR JUDGES?
13.0. I do not think so. It is unconstitutional. From which budget are the houses being built? The FCT Minister is not a member of the judiciary – at least for now. The constitutional autonomy of the Judiciary, especially post – 2023 amendment of the Constitution by virtue of Section 81(2) (3), and (4) of the constitution, raises serious concerns regarding whether the Minister of the FCT can unilaterally decide to build houses for Judges. Building housing for Judges would fall under a significant capital expenditure item. However, given that the Judiciary now controls its own budget, the Minister cannot be said to retain the requisite legal authority to initiate such projects without the approval of the Judiciary’s head i.e. the Chief Justice of Nigeria or the heads of the respective Courts. The President who approved the building of these projects is not the Head of the judiciary. He is also not the chairman of NJC. The Judiciary’s control over its finances suggests that any housing project for Judges should be proposed and financed directly by the Judiciary, not the Minister of the FCT.
CONFLICT WITH THE JUDICIARY’S FINANCIAL AUTONOMY:
14.0. The act of the Minister to unilaterally construct 40 houses for Judges is in direct conflict with the financial autonomy of the judiciary and it is undermining the financial autonomy granted to the Judiciary under the 2023 constitutional amendment. The direct implication of the new provision is that the Judiciary’s budget is now free from executive control, and the Minister’s involvement in such a project is an infringement on the Judiciary’s autonomy. That the minister did build houses for judges while he was the Governor of Rivers State between 2015 – 2023, cannot excuse his doing so as a minister in 2024 given the coming into force of Act No 28 of 2023, which was assented by the president. The Hon. Minister cannot agree to the direction of Mr. President in breach of the constitution. The Constitution is supreme to both the President, the Minister and even the judiciary. See Section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
15.0. It is submitted that what the Hon. Minister and the President have agreed to do, that is building 40 houses for judicial officers under the renewed hope agenda, is nothing but constitutional iniquity and sacrilege. Furthermore, any attempt by the Minister to embark on this Housing expenditure on behalf of the Judiciary would clearly amount to encroaching on the Judiciary’s ability to manage its own affairs. Such encroachment it is submitted, undermines the spirit of the constitutional amendment, which sought to ensure that the Judiciary remains independent of political interference.
THE POLITICAL AND SELF-SERVING NATURE OF THE ACTION:
16.0. One of the critical concerns in this context is whether the Minister’s decision to build houses for Judges is not self-serving or politically motivated. Housing projects, especially those targeting high-ranking individuals like Judges, are a sensitive matter and can easily be perceived as an attempt to curry favour with the Judiciary for political leverage. In this context, the Minister’s actions could be seen and have been seen by all reasonable men in the society, as an attempt to consolidate political power or seek undue influence over the Judiciary. Speaking on a media chat, the FCT minister on the 13th of November, 2024 denied the allegations that the building of the houses for Judges in Abuja was aimed at “pocketing them for political gains”. Minister Wike insisted that the project was approved in the 2024 budget and that he was only performing his duty by implementing it. He added that the building of the Judges’ quarters was not his policy but part of welfare packages that President Tinubu designed for the Judges to promote the independence of the Judiciary.
17.0. Minister Wike claimed that President Tinubu asked him, ‘Where are the Judges living? They have no homes and are, therefore, open to political manipulations, and for him as a president who wants to guarantee the independence of the Judiciary, Judges must have their homes. The Minister announced that President Bola Tinubu approved and sent to the National Assembly, as part of the 2024 budget, a proposal for the construction of residences for judges and justices. This initiative aims to relocate judges from rented accommodations, where they often live alongside criminals, to secure and convenient quarters. Minister Wike further insisted that there was nothing wrong even if it was his idea to construct homes for Judges, adding that he did something similar as Governor of Rivers State.
18.0. These arguments with profound respect cannot survive the reasonable man test and constitutionality rooted in the separation of powers as enacted under Act No 28 of 2023. The National Assembly cannot pass a budget for Minister Wike to construct houses for judges because the constitution says that:
“The amount standing to the credit of the – Judiciary in the consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the Heads of the Court established for the Federation and the States under section 6 of this constitution. … If in respect of any financial year, it is found that:(a) the amount appropriated by the appropriation Act for any purpose is insufficient; or
(b) a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act, a supplementary estimate showing the sums required shall be laid before each House of the National Assembly and the heads of any such expenditure shall be included in a supplementary Appropriation Bill.”
19.0. Even if the money was budgeted as Minister Wike postulated, the constitution says that that money must be paid directly to the National Judicial Council which has the constitutional duty to disburse the money to the heads of Courts to build the houses through appropriate agencies of the judiciary. The argument that if the judiciary were to award contracts and a dispute arises, the issue of “who will decide the case?” would arise, is an argument rooted in partisan self-serving interest. Judges have sued NJC on several occasions or Federal Judicial Service Commissions or such other judicial organs and judgements given against these organs of the judiciary.
20. The appearance of impropriety is crucial in this analysis. Even if the Minister’s actions are well-intentioned, the optics of an executive branch official providing housing for the Judiciary can and has the potential of further eroding public trust and the impartiality of the Judiciary. There has never been a time that the image of the Nigerian judiciary has been lowered than now. Judicial rating is low in geometric proportion. The Judiciary is expected to be free from political influence and any action by the executive that could be seen as a gift or a favour, risks tainting the perception of interference in judicial decisions by the executive. This could lead to public concerns about the independence of the Judiciary and its ability to make unbiased decisions without fear of political retribution. The action of the Minister completely contravenes and defeats the entire purpose of putting the National Judicial Council in charge of the capital and recurrent expenditure of the Judiciary.
21. Furthermore, the Federal Capital Territory as well as the FCDA and the Federal Republic of Nigeria have cases pending before these Judges. On the theory of equality before the court, the executive cannot be found to be publicly gifting the Judges who are going to determine their cases. If the action of the minister is indeed not self-serving and a need arises for better housing of Judges, then the Judiciary is to propose a capital expenditure for such a project. It must do so as part of its budget request, presented to the National Assembly as part of the broader Appropriation Bill. The legislature must then approve it, and it must be disbursed to the Judiciary’s administrative body, which will oversee its implementation. That is what the constitution says and Minister Wike cannot breach the constitution with the pride of having 40 houses to be built by him for judges.
22..0. The Minister of the FCT, in this context, has no role in directly allocating or controlling the use of such funds, especially since the Judiciary is now constitutionally empowered to manage its own capital and recurrent expenditures. The Minister of the FCT’s action is ultra vires and gives the impression of self-serving partisan political interest. Section 81(3) of the Constitution now directly grants the Judiciary the authority to handle funds meant for judicial infrastructure, including housing for Judges. The Minister’s interference violates these principles and gives the appearance of impropriety as the Minister will be acting independently without even the involvement or collaboration with the Judiciary or clear legal justification.
23.0. In light of the 2023 constitutional amendment granting the Judiciary financial autonomy, the Minister of the Federal Capital Territory does not have the legal authority to initiate a housing project for Judges. Such decisions fall within the exclusive purview of the Judiciary, particularly in relation to capital expenditures intended for its own officers. The potential for the Minister’s actions to be viewed as politically motivated or self-serving is significant. Even if no direct corruption or improper conduct is involved, the appearance of impropriety could undermine public trust in both the Judiciary and the executive. This situation presents a conflict between the constitutional principles of judicial independence and the power dynamics within the Nigerian government. While the Minister of the FCT may have good intentions in seeking to improve the living conditions of Judges, any initiative in this direction should be coordinated with and executed by the Judiciary, not the executive.
24.0. The Judiciary must retain control over its financial matters to preserve its independence and avoid any appearance of partisan influence. Thus, the Minister’s unilateral decision to construct housing units for Judges not only breaches constitutional principles but also carries significant political and legal risks. The Minister of the Federal Capital Territory (FCT) by virtue of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Federal Capital Territory Act, is vested with significant executive powers related to urban planning and land administration within the FCT. However, the 2023 constitutional amendment Act No. 2, which grants the Judiciary financial independence, creates a clear separation between the functions of the Judiciary and the Executive. The Judiciary, in its new autonomous role, now has full control over its own budget, including capital and recurrent expenditures, such as housing projects for Judges.
25.0. Therefore, the decision by the Minister of the FCT to independently initiate a housing project for Judges is problematic, legally questionable, and potentially unconstitutional. Such actions infringe upon the Judiciary’s newly established financial autonomy and circumvent the constitutional process that ensures the Judiciary’s independence from executive influence. The Appropriation Bill plays a critical role in ensuring that public funds are allocated transparently and appropriately. While the executive branch continues to play a central role in proposing the national budget, the Judiciary now controls its own fiscal matters, including how and when funds for capital projects like housing for Judges are to be used. If the Judiciary believes such a project is necessary, it must request funding through its own budget, subject to approval by the National Assembly. The Executive, represented by the Minister of the FCT, has no authority to initiate such projects independently, particularly when doing so could be seen as politically motivated or self-serving. The Minister’s unilateral decision to embark on a project like the building of houses for Judges could easily be perceived as an attempt to gain favour or influence over the Judiciary. Even if the project were well-intentioned, the optics of such actions would risk undermining public trust in the independence and impartiality of the Judiciary. This is especially concerning in a country where the principle of separation of powers is fundamental to the proper functioning of democracy.
26.0. Let the Minister and the President have a rethink. The executive cannot breach the Nigerian constitution under the renewed hope agenda and expect Nigerians to praise them.
