Nigeria: Senior Lawyers Back Direct Fund Allocation to State Judiciaries

Mike Ozekhome

Senior lawyers in Nigeria on Wednesday called on the federal government to remit allocations due to state judiciaries from the Federation Account directly to them as part of measures to break governors’ stonewalling of attempts to implement financial autonomy to the judiciary in the states.

The lawyers, in separate interviews with THISDAY said since the constitution provided for financial autonomy for state judiciaries and legislatures, the federal government has the responsibility and powers to disburse funds meant to the state judiciaries and legislatures directly to them.

The lawyers, including Chief Mike Ozekhome (SAN), Mr. Ahmed Raji (SAN) and Mr. John Baiyeshea (SAN), spoke against the backdrop of the deadlock in resolving the disagreement between the federal government and state governors over the implementation of financial autonomy to state judiciaries and legislatures.

The logjam has led to the ongoing indefinite strike by judiciary workers who are demanding the implementation of the financial autonomy law.

The strike called by the Judiciary Staff Union of Nigeria (JUSUN) to protest the refusal of state governments to implement financial autonomy for their respective judiciary and legislature entered its ninth day today.

Section 81 (3) and Section 121 (3) of the constitution grant financial autonomy to federal and state judiciaries.

Courts have also confirmed it in the cases of Judicial Staff Union of Nigeria Vs National Judicial Council (NJC) and Governors of the 36 states in Suit No. FHC/ABJ/CS/667/13; Olisa Agbakoba Vs Federal Government of Nigeria, NJC and the National Assembly in suit No.FHC/ABJ/CS/63/2013 and Olisa Agbakoba Vs Attorney General of Ekiti State and two Others in Suit No. NAD/56/2013.

But while the autonomy was implemented at the federal level, the state governors have refused to implement it in the states.

To enforce the implementation, President Muhammadu Buhari signed Executive Order 10 but the governors faulted the order, describing it as unconstitutional and full of inconsistencies.

However, some of the senior lawyers said for the federal government to disburse funds directly to state judiciaries, it must have to be directed by the court.

Ozekhome told THISDAY that the matter was quite simple because of a subsisting court judgment recognising financial autonomy of the judiciary at the state level.

According to him, the federal government will be right to deduct at source through the Accountant-General of the Federation (AGF) all funds accruable to the various state’s judiciary and remit same directly to them.

He explained: “The Accountant -General of the Federation (AGF) is in charge of maintaining and operating the Federation Account. He establishes and supervises federal pay offices in each state capital of the federation. He is, more importantly, in charge of maintaining and operating the accounts of the Consolidated Revenue Fund of the Federation (Section 162 of the 1999 Constitution), Development Fund and other public funds.

“He also provides cash backing for fiscal and monetary operations of the federal government. Since there is an extant court judgment, which has not been overturned by an appellate court, which judgment is also backed by an existing regulatory law (Executive Order 10) duly signed by Mr. President in accordance with Section 5 of the 1999 Constitution, the AGF will be perfectly right to deduct at source, all revenues payable to the courts as a first-line charge, and remit same directly to the heads of the various state judiciaries in Nigeria.”

Ozekhome added that any state that is dissatisfied with such a step by the AGF could go to the Supreme Court and invoke its original jurisdiction in accordance with Section 232(1) of the 1999 Constitution as amended.

Baiyeshea also advised that monies belonging to the judiciary and legislature should no longer go through the state governments but rather through their accountants.

He said: “The only constitutional step I can canvass is for money budgeted for each arm of government to be paid directly to their accountants.

“Let no fund meant for judiciary or House of Assembly pass through the state governments again.

“It is not a complex matter at all. So, that judiciary and legislature will no longer have to go as they say ‘cap in hand ‘begging’ for what constitutionally belongs to them.”

He said the heads of those arms of government, would be accountable for the funds.

However, Raji suggested that the federal government can approach the apex court for an order freezing funds belonging to a state government that refuses to comply with the constitutional provisions on financial autonomy for the judiciary and legislature.

He said: “The federal government is enjoined to file a suit in the Supreme Court against the recalcitrant states with a prayer for permission to warehouse appropriate funds pending evidence of compliance.”

Another senior lawyer, Mr. Dayo Akinlaja (SAN), stated that the judiciary has the power to compel the federal government to act in a particular way.

According to him, since the federal government has shown a desire for financial autonomy for the various state judiciaries and legislatures by signing Executive Order 10, it should approach the court to give it necessary backing.

He argued: “I believe that it is within the province of the judiciary to order the federal government to do or refrain from doing anything. Our constitutional democracy demands that court orders must be obeyed by those concerned.

“However, this ideal remains a mirage most of the time; hence the failure of the state governments to obey the existing judgment. The good thing here would appear to be that the federal government is well disposed to having the state governments ensure financial autonomy for the state judiciary.

“That being so, what the federal executive had intended to achieve through Order 10 should be submitted to the court for judicial pronouncement. Once there is a judgment of the court sanctioning the tenor of the Executive Order 10 and the federal government is sincerely positively disposed thereto, it would be open to the executive to implement the contents of the executive order in the name of obeying court orders in that regard.

“Since the federal government cannot on its own force the state governments to do anything without going extra-legal, this appears to be the safe way out, in my humble view.”

Alex Enumah in Abuja