The judiciary all over the world plays the important role of maintaining law and order. It also holds the government accountable and enforces the rights and liabilities of citizens.
However, recent developments in the Nigerian Judiciary have raised some doubts on whether the third arm of government is living up to this duties.
At independence in 1960, the Nigerian Judiciary was one of the country’s institutions that was regarded with respect and great honor, but just like other aspects of our national life, the third arm of government has also suffered a battered image.
Notwithstanding the fact that the Nigerian judiciary came into existence before the country attained self rule 60 years ago, the third arm of government is still searching for its freedom from the control of the two other arms of government.
Although at independence, the Nigerian Judiciary attained the status of an independent arm of government, which led to the establishment of the Supreme Court as the apex court of the land, the story has not been smooth sailing as it should be.
This is due to the many contradictions that plagued the country, and one of such historical incidents that has negatively impacted the Judiciary was the military rule.
This period witnessed wanton disregard for the rule of law and democratic principles. The military government treated the judiciary as if it were an integral part of the civil service. There was indiscriminate dismissal of judicial officers and open disobedience of judicial pronouncements.
The return of democratic rule in 1999 to some extent brought back the vibrancy and courage of the judiciary as several landmark decisions were made by the court but funding has been one of the intractable problems of this very important arm of government.
To underscore the importance of judicial autonomy and adequate funding, President Muhammadu Buhari on May 22, 2020, signed the Presidential Executive Order Number 10 of 2020. The Order was intended to create a framework for the implementation of financial autonomy for state legislatures and state judiciaries.
The Federal Government claimed that the president signed the order based on the power vested in him as the president under “Section 5 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), which extends to the execution and maintenance of the Constitution, laws made by the National Assembly (including but not limited to Section 121(3) of the 1999 Constitution (as Amended), which guarantee financial autonomy of the State.”
The 1999 Constitution (Fourth Alteration, No. 4) Act, 2017, formed part of the Fourth Amendment to the Constitution and was passed by the fifth National Assembly and approval by over two-third majority of the State Houses of Assembly.
Section 121(3) unlike the provision of Section 81 of the 1999 Constitution, which gave financial autonomy to the National Assembly and Judiciary at the Federal Level, did not fully grant the same level of autonomy to the States.
In an attempt to correct this anomaly, the 4th Amendment to the Constitution amended Section 121(3) as follow: “Any amount standing to the credit of the (a) House of Assembly of a State; and (b) Judiciary, in the Consolidated Revenue Fund of the State shall be paid directly to the said bodies directly; in the case of the Judiciary, such amount shall be paid directly to the heads of courts concerned”.
Despite this amendment in 2017, State Governors in the country continue to control the finances of the states and the allocation of funds to the other arms of government and simply ignored the provisions of the Act, which itself did not provide the framework for its implementation.
The lack of an implementation modality and the continuing neglect of the provisions of the 4th Amendment by State Executives, necessitated the need for a directive that woulgd give backing to the 4th Amendment whilst providing clear modalities for its implementation.
Executive Order 10 was therefore issued by President Buhari to provide a framework for the implementation of the 4th Amendment and to further entrench sound democratic principles in governance at the State level.
The Executive Order amongst other provisions, empowers the Accountant-General of the Federation to authorise the deduction from source from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121 (3) of the Constitution.
But on June 8, the Ekiti State Governor, Kayode Fayemi announced that President Buhari had approved a delay in the gazetting of the Executive Order.
Fayemi, who is the Chairman of the Nigerian Governors Forum, said this while briefing journalists in Abuja at the end of a meeting he and some other governors had with some ministers and the Chief of Staff to the President, Ibrahim Gambari.
He also stated, “What is at issue is on the constitutionality of the modalities of what had been put in the Executive Order and the President was gracious enough to say ok, given your concerns about that we will delay the gazetting of the order and allow you meet with the Attorney General and the Minister of Finance to work out the modalities,”
“In any case, we have been meeting at our level with the conference of Speakers. The Vice Chairman of the Nigerian Governors Forum; Governor Tambuwal of Sokoto State, was delegated as the Chair of a number of Governors who have gained legislative experience either because they were in the House of Representatives or they were Speakers of State Assemblies, or they were Senators and that committee has been meeting with a delegation of the Conference of Speakers, working out this modalities and we believe that all of that would be settled amicably without any resort to court,” Fayemi said.
This has, however, not put the issue to rest as the 36 states of the federation have gone before the Supreme Court to challenge the order.
In the suit, which was marked Sc/Cv/655/2020, the governors are seeking determination of two questions, namely: whether by sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), read together with Item 21(e) of the Third Schedule thereof, the Federal Government “is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.”
The Governors also want to know whether by virtue of sections 6, 80, 81, 120 and 121 of the Constitution, it is not unlawful for the Presidential Executive Order No. 00-10 of 2020 to compel the Governors to fund State High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal.
The Governors urged the court to answer the questions in the affirmative and order president Buhari to refund all monies expended by states in funding capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of states being courts established by section 6 of the constitution.
They are also seeking an order “setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and, therefore, unconstitutional.”
As the country awaits the resolution of this dispute one way or the other, one other issue still trailing the judiciary is allegations of corruption.
Over the years there have been accusation and counter accusations of bribery and corruption against judicial officers and the attempt by the Federal Government to tackle the menace through the arrest and trial of some of them have failed to yield satisfactory results.
Most of the judicial officers, whose home were raided on October 7, 2017, by operatives of the Department of State Services (DSS) have been absolved of the allegations and the cases which are still in court are moving at a very slow speed.
Recognising the damage the allegations of fraud and corruption is inflicting on the image of the judiciary, the immediate past Chief Justice of Nigeria Justice Onnoghen, who himself was later consumed by similar allegations, set up a committee, the National Judicial Council Committee on the Monitoring of Corruption Cases (COTRIMCO), which comprised of judges, lawyers and members of civil society to tackle the menace.
However, very little has been heard from the committee apart from various meetings it held with judicial offices across the country.
Apart from allegations of corruption, other problems plaguing the third arm of government are failure of the executive and legislature, at all levels, to respect the authority of the court by obeying judgments without reservation, high cost of litigation, delay in court proceedings, over reliance on legal technicalities and prison congestion.
It is however a fact that it has not been all gloom for the judiciary in the last 60 years.
The judiciary continues to be strengthened by some unique provisions of the 1999 Constitution, especially those providing for the establishment of two independent regulatory institutions, the National Judicial Council (NJC) and the Federal Judicial Service Commission (FJSC).
With the disruptions caused by the Coronavirus pandemic the judiciary must fully embrace advancements made in science and technology and there should be simultaneous improvement in court facilities, so that it can play the important roles the Constitution and the citizens expect of it.
A Senior Advocate of Nigeria, Jibrin Samuel Okutepa while reviewing the contribution of the Judiciary in the last 60 years, stated that if he is given the opportunity to award marks, he would score it about 50% to 60%.
Okutepa said, “those who are students of our legal history and jurisprudence will no doubt find that when it matters most and the country was at cross roads politically, economically and socially the nations judiciary always rose to the occasions to protect and preserve the unity and corporate existence of this country.
“To this extent, and given the level of the environment of near lack of infrastructural developments and unavailability of technological equipment to work with, our judiciary, as an arm of government has fared far better than any of the two other arms of government.”
“Again let me say that notwithstanding these lofty achievements of the judiciary, it will be shortsighted arrogant and sycophantic puerile blind nationalism to say that Nigerian judiciary is independent.
“The judiciary itself is aware that it is not independent. The judiciary is not independent financially. This is too notorious a fact to require any debate.
“In terms of judicial performance there are arguments of interference with judicial functions. Appointments of judges seem to be more of reward based than merit based.
“While there are good and sound judicial officers on the Bench, there are arguments that some judges who found their ways to the exalted office of judicial officers ought not to have been appointed in the first place.”
“For us to be truly independent in terms of justice delivery system, the legal profession must have a rethink and fathoms and fashion out principles of law that take into accounts the peculiarities of our behaviour and attitudes to make attainments of justice less technical than we see our courts do in most electoral disputes.
“The principle that documents duly certified must be tendered through the maker even when the makers are the ones whose actions are being challenged need to be looked into and jettisoned for substantial justice.
“Time has come as we celebrate 60 years of independence to look at our justice system and admit that we have put many road blocks to attainments of justice and to retrace our steps in the overall interest of our profession and our people.