By Suleiman Hassan Gimba Esq
I am a lawyer who grew up believing in the lofty ideals of the principles of justice. It started in the walls of a secondary school, FECOET Demonstration Secondary School, which still opens the floodgates for nostalgia to flow uncontrollably anytime my mind repeats images of the Government teacher telling us of the Rule of Law and Separation of Powers; of A. V. Dicey and Juris Baron De Montesquieu. These piqued my interest to study law and guided me through my training as a lawyer but most importantly, they have influenced the growth of modern societies, structures and tiers of governments, and the inalienable rights of man.
As a 15-year-old getting to grips with internationally accepted and practiced theories for the first time, I knew it will be too idealistic to practice them in a society such as ours, which is a mixture of people living 700 years in the past and some born in the present. Yet I never for once found them quixotic because we can as a bare minimum find the means to build the pedestal to sculpt our laws in the manner God has always wanted, to have everyone equal before the law.
Separation of powers as Montesquieu proposed is enshrined in our Constitution, with the exclusive powers of each of the Executive, Legislature and Judiciary expressly stated and provisions for checks and balances made. An extension of separation of powers, checks, and balances allows each arm of government to check the excesses of the other arms and to prevent abuse. This is exactly what we have on paper but in practice, the Executive has the Legislature in the bag and they both have the Judiciary in the bag with the national or state Judicial Commissions doing their bidding.
The Judiciary Staff Union of Nigeria (JUSUN) has been fighting a war to make practice align with theory. This is to increase the effectiveness of the judiciary and to make access to justice easier for the average person. In suit FHC/ABJ/CS/667/13 brought by JUSUN against the NJC, Attorney General of the Federation and Attorney Generals of the states of the Federation, His Lordship Ademola J declared the absence of financial autonomy as unconstitutional. He said the allocation of funds through the state’s ministries of Finance to the state judiciary “at the 2nd—74th defendants’ pleasure is unconstitutional, unprocedural cumbersome, null, void and be abated forthwith.
He made an order compelling the 2nd to 74th defendants to comply with sections 81 (3), (4) (3) and 162 (9) of the 1999 Constitution, and Hon. Justice Mariam Aloma, the then Chief Justice of the federation, wrote to the 36 governors in Nigeria and copied the Attorney Generals of the states on 6th August 2014, bringing their attention to the case law.
In 2020, through Executive Order 10 of 2020, President Buhari granted states judiciary and legislature autonomy. The Governors held an emergency meeting and, like the constitutional provision and the case law before it, the Executive Order was never complied with. You see now clearly, in the arms of government there is the top dog and the submissive puppies, relegated to playing second fiddle in a role assigned to them by the Constitution.
The intent of separation of powers is to prevent the concentration of unchecked power to one arm of government, so far with a rubberstamp judiciary and the financially crippled judiciary we are doing the opposite and are slowly falling into autocracy. The intent of the rule of law as Dicey theorized is 1. That the state should punish no one except for a distinct breach of law established by ordinary court proceedings; 2. That the law should apply to all persons equally, regardless of any person’s rank or condition; 3. That the courts must enforce the legal rules. Lack of this is why the presidency violates court order, the governors violate court order and every man with money or powerful connections violates a court order.
It is why losers in elections have little faith in Election Tribunals; ordinary citizens don’t have confidence in the judiciary; the Nigerian Bar Association supports autonomy for the judiciary; it is why the six weeks old JUSUN strike is very important and it is why everyone that believes in justice and fairness should support financial autonomy and whatever will empower the judiciary.
As JUSUN fight on, arms stretched against the current of oppression, the Chief Judge of Yobe State, Justice Kashim Gomna has come out to state that the state judiciary enjoys 85% autonomy and has no business going on strike. He further went ahead to express confidence in the Governor meeting all the needs of the judiciary. A good working relationship between the arms of government is good but none should come at the detriment of the other, and none should compromise the other. As the head of the Judiciary in the state, his number one role should be to protect the interest of the judiciary.
I firmly believe there is no way for a state judiciary or for anyone (individual or body) to have 85% autonomy. Autonomy means absolute control over one’s affairs; it is sovereignty; it is independence. Financial autonomy in this case means having a self-accounting system where the allocation of the state judiciary comes directly from the Federal Government and not through the state ministry of finance. The judiciary will also have full control over how it wants to use the money, the Executive and the Legislature cannot influence how it is spent but can ensure it is not misappropriated, or if it is misappropriated, then the persons involved will be held to account. This is checks and balances.
No state judiciary in the federation has even 1% autonomy that is why JUSUN is on strike. If from the allocation that comes through the ministry of finance, the state government takes 15% and gives the judiciary 85%. That is still not 85% autonomy, it is 0% autonomy. If 85% comes through the judiciary and 15% through the ministry, it is still not 85% autonomy but 0%. In reality, the money comes through the ministry and that is not autonomy even if it gives the judiciary 85%, it can’t be called 85% autonomy. If there is a sharing formula that allows any state government to take 15% then it is stealing because the executive has its money and the judiciary has its too. So why should one take from the other? More importantly, the executive has autonomy, so why can’t the judiciary? Is the judiciary incapable of receiving its money directly from the Federal Government?
Our system of justice is very slow, with defendants sometimes spending more time during trials than they would have had they been convicted. The lack of autonomy has been a major contributing factor at both national and states level, while the judiciary fights for survival and relevance, the executive is more concerned about building structures and paying salaries as the ways to improve the judiciary.
In 2021, as many countries are in their umpteenth year of embracing technology to improve access to justice, we are fighting over autonomy. In Australia, for instance, it is compulsory to file court processes electronically, Dubai courts have been conducting hearings on Microsoft Teams since 2019, and Singaporean Courts permit legal practitioners to make applications through video links. And while robot lawyers are appearing in small courts, automatic recording of court proceedings and swift but fair court proceedings are the other of the day we are here troubling our judges and magistrates with writing notes everyday, seeing lost files condemning people to live imprisonment all because those not in the system have been allowed to handle the affairs of the system.
As the scale of justice tilled 85% in favour of the prosecution cannot give a conviction, autonomy cannot be at 85% and expect the judiciary to be independent, able to stand its own in the checks and balance game against the executive and the legislative arms and rule without fear or favour. We must never make judges to feel like they are fortunate to be in their positions, it is not what the common man needs to hear from the last hope of the common man.
In Yobe, we lack institutions. Everything has been personalized, so we have accepted some things as normal. That is why during nationwide strikes, our schools and other unions and/or associations hold back and the rest of the country has left us behind in numerous fields as a result. If JUSUN had also chosen to make things personal, then there wouldn’t have been any action taken and the gap between us and other judicial systems in the world will continue to widen like the gap between the rich and the poor in Nigeria, but that is a story for another day.
For now, I can only reiterate, we are the law, each and every citizen; holding equal say in our affairs; with every vein connected to every word in the Constitution we the people of Nigeria formed in 1999. “We the people” means everyone and we deserve better.
Gimba is a corporate and property law lawyer. He writes from Abuja.
