Politics News

Memo to National Assembly: Amend constitutional provisions on judiciary’s salary, budget

In this article, Ahuraka Yusuf Isah identifies some inadequacies in key constitutional provisions in relation to salary and budget for the judiciary, and called on the National Assembly to urgently effect the necessary amendments.

 If there is any matter so loosely and ambiguously legislated upon in the 1999 Constitution (as amended), it is not other than sources and payment of judges’ salary.

 Just as William Shakespeare has rightly observed in “The Merchant of Venice’’, that “The devil can cite Scripture for his purpose’’; both the Federal Government and state governors are citing various and inconsistent provisions of the Constitution to justify their positions on Judicial autonomy. 

By the provision of Paragraph 21 (e) of Part One of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, the National Judicial Council has power to ‘collect, control and disburse all monies, Capital and Recurrent, for the Judiciary’. 

Here the Constitution failed to mention source of the funds, whether Federal or State. This provision does not distinguish between superior or lower courts. This has left so much hanging because if this is so, it implies that by virtue of this provision, all Judiciary expenditure, whether capital or recurrent, whether superior or lower courts, should be disbursed to all heads of the courts by the NJC, which has not been in practice.

 A cursory glance shows that Section 6 of the Constitution provides for the Judiciary; Section 6(5)(a-i) lists the Superior Courts of Record, while Section 6(5)(j-k) mentions the other courts authorised by law to exercise jurisdiction on matters which NASS and State Houses of Assembly respectively, can make laws. By implication, courts like the Magistrates’ Court, District Court, Area Customary Court, and the Sharia Court are the other courts authorised by law to exercise jurisdiction on which the various State Houses of Assembly can make laws, and therefore, fall within the purview of Section 6(5)(j-k). Section 6(5)(a-k) of the Constitution can therefore, be translated to mean that the superior and lower courts constitute the Judiciary, and a community reading of Sections 6(5)(a-k) and 81(3)(c) means that any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation, shall be paid to the National Judicial Council (NJC) to be disbursed to the heads of the courts. See also Section 162(9) of the Constitution which also provides for the payment of any amount standing to the credit of the Judiciary in the Federation Account to the NJC, for disbursement to the heads of the courts.

 In other words, the provisions seem to mean that the Consolidated Revenue Fund of the Federation is responsible for the funding of all the courts (Judiciary), though the type of funding is not stated therein.

  President Muhammadu Buhari on June 8, 2018 assented to Four Acts amending the 1999 Constitution (as amended), including Constitution (4th Alteration) Act, No. 4; which is now the Section 121(3) of the Constitution. 

Section 121(3) is amended by providing for direct funding of the Judiciary in the states directly from the Consolidated Revenue fund of each state by paying directly to the head of the courts concerned. Ostensibly, it was to formally grant financial autonomy to the Judiciary in all the states of the Federation.

 But Section 121(3)(b) only states that any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the State should be paid directly to the heads of the courts, with no mention of the NJC or the type of expenditure. There is no provision that they shall be paid as a first line charge. 

On May 20, 2020 President Buhari signed the Executive Order No 10 to give effect to the provisions of the 1999 Constitution as altered by the 4th Alteration Act, No.4 of 2017 which guarantees financial autonomy for the judiciary and the legislature at the state level. 

But by September 29, 2020, the 36 states of the federation filed a suit before the Supreme Court to challenge the Executive Order No. 10. 

The 36 state governors  averred that the Order violates the provisions of sections 6 and 81(3), and item 21(e) of the Third Schedule to the 1999 Constitution, which they maintained obligated the Federal Government with the “responsibility for funding all capital and recurrent expenditures 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 Constitution of the Federal Republic of Nigeria.”

 Section 81(3) of the Nigerian Constitution, 1999 states that, “Any 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 courts established for the Federation and the state under section 6 of this constitution.” 

However, according to Onikkepo Braithwaite of the ‘‘Thisday Lawyer pullout’’, ‘’contrary to or a further qualification of Section 81(3)(c), Section 84(2), (4) & (7) of the Constitution lists those entitled to remuneration, salaries, and allowances in the Judiciary charged upon the Consolidated Fund of the Federation, thereby excluding judicial officers of the lower courts, and limiting those entitled inter alia, to judicial officers of the superior courts and the recurrent expenditure of their judicial offices, that is, the cost of running the courts. The staff of the superior State courts are support staff, part of the cost of running these courts. Do their salaries form part of the recurrent expenditure referred to in Section 84(7), though they are listed as members of staff in the public service of their respective States in Section 318 of the Constitution? 

‘’Does this mean that the State Governments are the ones responsible for the capital expenditure of their State superior courts and all the expenditure of the lower courts, whether salaries, remuneration and allowances, capital or recurrent as per the provisions of Section 121(3)(b) of the Constitution, to be funded from the Consolidated Revenue Fund of the various States, and paid directly to the heads of those courts? The foregoing constitutional provisions, are not clear on this’’, she stated.

 Braithwaite submitted that the judgement delivered in Suit No. FHC/ABJ/CS/667/13 JUSUN v NJC, AGF & 70 Ors on 13/1/2014 per A.F.A. Ademola J. is simply bringing up of Sections 81(3)(c) and 121(3)(b) of the Constitution, and does not address or resolve the controversy and inconsistencies created by the constitutional provisions stated so far. 

‘’But, it is obvious that the provisions of the Constitution leave us with several inconsistent scenarios on the funding of the Judiciary, and it would be unfair to lay all the blame for the lack of judicial autonomy because of the lack of financial independence, solely on the Governors; the Federal Government (having not fulfilled all its obligations as well) and the inconsistent provisions of the Constitution, are also culpable.

 ‘’From a community reading of all the above-mentioned provisions, it may be safe to conclude for now, that it is clear that the salaries, remuneration, and allowances of the judicial officers of the superior courts and the JUSUN Staff manning these courts, and all their other recurrent expenditure, should be paid from the Consolidated Revenue Fund of the Federation through the NJC to the heads of the courts. For the lower courts, it is implied that they are the ones who fit into Section 121(3)(b), since they are excluded from Section 84(4) of the Constitution, and the State Governments should fund them completely – pay the judicial officers, their JUSUN Staff, all their capital and other recurrent expenditure.

 ‘’The bottom line is that, it is a foregone conclusion that the Constitution must be amended to achieve clarity and uniformity, as far as the funding of the Judiciary is concerned. In the case of Danstarcher Turnkey Contractors Ltd v UBN Plc (2015) LPELR-24631(CA), the Court of Appeal held that the rule of interpretation of statutory provisions should always be construed as a whole, and should be given an interpretation consistent with the object of the entire statute. Sadly, the object of the provisions of the Constitution with regard to the Judiciary and its funding, are somewhat hazy. The matter of the centralisation of payments even to Superior State Courts on one hand, and the clamour for restructuring and devolution of powers on the other hand, are at variance’’, Braithwaite held.

  Allocate 5% of Total Budget to Judiciary

For the past four years, the same amount of N110 billion was budgeted yearly to the judiciary despite an increase from N9.12 trillion in 2018, N8.92 trillion in 2019, ¦ 10.59 trillion in 2020 to N13.08 trillion in 2021

 It would be recalled that the 2010 allocation of N95b to the Judiciary represented 2.2% of that year’s budget, in 2011, 2012, 2013, 2014 and 2015, the nation’s budget shares for the Judiciary were N85b (1.8%) N75b (1.7%), N67b (1.3%), N68b (1.3%) and N73b (1.6%) respectively.  The N70 billion budgeted for the Judiciary in 2016 (out of the N6.08 trillion total proposals) is 1.1%. 

The lawmakers can also confirm that the 2018, 2019, 2020 and 2021 budgeted figures for the judiciary have declined to below 1.0% respectively. For instance, N110 billion approved for the judiciary for the 2021 fiscal year out of a total budget of N13.08 trillion is 0.84%. In other words, while the nation’s total budget increases that of the third arm of government witnesses decline.

 It has become necessary for you lawmakers to review the constitution and mandatorily provide that judiciary budget must not fall below 5% of the total annual budget of the country, and so also in the states.

 Of course, judiciary at a time in this country was allocated with N150 billion budget for a year when the total budget of the country was far below a quarter of what it is today, and one wonders what has happened.

 Ahuraka is the Senior Special Assistant (Media) to the Chief Justice of Nigeria (CJN.

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