Poor court funding and judiciary’s independence

During the special session of the Supreme Court of Nigeria to mark the commencement of 2013/2014 Legal Year of the Supreme Court and to swear -in the new Senior Advocates of Nigeria on September 23, 2013, the Chief Justice of Nigeria, (CJN) Justice Mariam Aloma Mukhtar lamented the poor funding of the judiciary.Her words, ’’Over […]

During the special session of the Supreme Court of Nigeria to mark the commencement of 2013/2014 Legal Year of the Supreme Court and to swear -in the new Senior Advocates of Nigeria on September 23, 2013, the Chief Justice of Nigeria, (CJN) Justice Mariam Aloma Mukhtar lamented the poor funding of the judiciary.
Her words, ’’Over the years, funding of the courts has remained a challenge as evidenced in the condition of many courts in Nigeria today. Statistics have shown that, funding from the Federal Government has witnessed a steady decline since 2010, from N95 billion in that year to N85 billion in 2011, then N75 billion in 2012 and dropped again in the 2013 budget to N67billion.
’’Indeed with this amount, if the amount allocated to the extra-judicial institutions within the judiciary is deducted, the courts are left with a paltry sum to operate. The simple implication is that our courts are increasingly finding it difficult to perform their day to day constitutional roles.
“The resultant effect of a slim budget in the Judiciary is that a number of courts in Nigeria today evince decay and neglect of infrastructural amenities particularly at the state level. In some cases the court buildings do not possess the required well equipped library for judges to conduct their research. This may make  judges rely on information supplied by lawyers which should not be the case.”

The Chief Judge of Bauchi State, Hon. Justice Ibrahim Zango, at the inauguration of the 2011/2012 Legal Year, graphically captured the sorry state of affairs and wretchedness of Bauchi State Judiciary in the following words:
“I want to state at this juncture that the Bauchi State Judiciary is in a very bad shape, all our courts are in a deplorable state and there are no good furniture, in both our courts and chambers. The environment is not conducive at all. We have no standard library, which is a must in the discharge of our duties as judges. Therefore most of us depend on the authorities submitted by lawyers to write our rulings and judgments.”
In some states like  Abia, which also suffers  from dilapidation, the situation is such that once it rains, the court will be forced to adjourn, while if  the weather gets hot, the judges are forced to adjourn since the central cooling system had failed.
Though, the mystery is yet to be determined, but there is this consciousness that while the national budget is witnessing yearly incremental benefit, the moneys budgeted to finance the entire judiciary has been decreasing on yearly basis at least for the past three years.
It is with similar observation that made the lawyers including a former President of the Nigerian Bar Association (NBA), Chief Olisa Agbakoba (SAN) to file a suit early this year to stem the tide under the guise of seeking to secure financial independence for the nation’s judiciary.
Agbakoba named the Attorney General of the Federation and the Minister of Justice, the National Judicial Council (NJC) and the National Assembly (NASS) as the co-defendants.
Agbakoba had in his Originating Summons, asked for the full implementation of the provisions of the 1999 Constitution, which granted the judiciary’s expenditures the status of “first line charge”.

He argued that besides independent budgeting, the funds belonging to the judiciary in the Consolidated Revenue Fund ought to be released to the NJC in full for disbursement for the needs of the courts.
He is asking the court to declare that the judiciary does not need to submit its budget to the president of the country but rather should send the budget straight to the National Assembly for appropriation.
He also asked the court to declare that the present practice on judiciary funding, which is dependent on the executive arm in budgeting and release of funds is in violation of sections 81(2),(3),(c) and 84(2),(7) of the constitution and therefore unconstitutional.
He asked the court to issue a perpetual injunction against the defendants from practices of judiciary funding which ran contrary to the provisions of the constitution to wit, submitting judiciary’s estimates to the executive instead of directly to the NASS and release of the judiciary fund in warrants by the executive instead of directly to the NJC for disbursement.
For purposes of funding and in line with section 6 of the 1999 constitution, courts in Nigeria can, in broad terms, be categorised mainly into ‘‘superior courts of record’’ and ‘‘other courts’’.

Meanwhile, the constitution prescribes ‘‘the Consolidated Revenue Fund of the Federation, the Consolidated Revenue Fund of the State and the Federation Account’’ as the three sources by which the judiciary shall be funded.
Section 84 (2) and (4) of the 1999 Constitution provides that the remuneration, salaries and allowances payable to the judicial officers of the superior courts of record are charged on the Consolidated Revenue Fund of the Federation.
This position received an authoritative pronouncement of the Supreme Court in A.G Federation v. A.G. Abia State & Ors (2002) 6 NWLR (Prt 764) 542 at 688 where the court held:
“It is the Consolidated Revenue Fund of the Federation and not the Federation Account that is charged with the salaries of Judicial Officers in the Federation.”
Section 84 (7) of the Constitution also provides that, “recurrent expenditure of judicial offices” otherwise known as the over-head cost of running the courts and the judges’ chambers are charged upon the Consolidated Revenue Fund of the Federation.
In respect of the remuneration, salaries and allowances of judicial officers, Section 84 (1) of the Constitution prescribes that; such shall be determined by the Revenue Mobilization Allocation and Fiscal Commission.
The role of the NJC in respect of the remuneration, salaries, and allowances of judicial officers and the recurrent expenditure of their offices is one of disbursement of such funds to the heads of courts concerned. Section 81 (3) (c) of the Constitution in an unambiguous term, provides:
“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 courts established for the Federation and the States under section 6 of this constitution.”
No doubt, this provision has been observed to the letter at the level of the federal tier of government.
However, one of the most problematic and contentious provisions of the constitution, in respect of the funding of the judiciary relates to Section 121 (3) of the Constitution. The said section provides that, any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of courts concerned. The enforcement of this provision poses the greatest challenge to the judiciary at the state level, as this clear and unambiguous provision of the constitution is being observed more in breach than in compliance in many states. Many governors consider this provision as an affront to their imperial powers. They prefer to see the Chief Judges and other heads of courts of their states tremble before them, cap-in-hand, to “beg” for funds to run the affairs of the states’ judiciaries.
The direct effect of the non-enforcement of the provision of Section 121 (3) of the Constitution is the pitiable, deplorable and near-despicable state of affairs and decay of infrastructural facilities visible in our courts today, particularly, at the state level.

It is important to make the point here that, fiscal autonomy of the judiciary as envisioned and guaranteed under the 1999 Constitution is to secure the independence and flexibility needed for the judiciary in the discharge of its constitutional duties. The imposition of any constraint or restriction on the funds allocated or appropriated to the judiciary by any person or arm of government, violates not only the letters and spirit of the constitution but of the principles of independence and separation of powers upon which the entire fabric of our constitutional system is based. It can also appropriately be considered as an insidious attempt to control and undermine the judiciary. It cannot be over stressed that in a constitutional government such as ours, the rule of law must prevail.
The constitution is the basic and paramount law to which all persons must revere. From this cardinal postulate, it follows that; one arm of government must not be an obstacle to the discharge of the function of another.
Unless the judiciary is expected to be emasculated we have to reverse this trend. Not only restore but to increase the funding in the same manner as the other arms of government are experiencing an increase, the judiciary should also expect some increase.