INTRODUCTION
Former President of the Nigerian Bar Association
(NBA), Olisa Agbakoba (SAN) dragged the Attorney-General of the Federation and
Minister of Justice, the National Judicial Council (NJC) and the National
Assembly to court to challenge the constitutionality of allowing funds meant
for the judiciary to pass through the executive arm of government.
Agbakoba also argued that the practice was in
breached of constitutional provisions as enshrined in Sections 81 (2) (3) (c) and 84 (2) (7) of the 1999 Constitution of
the Federal Republic of Nigeria (as amended).
Justice Ahmed Ramat Mohammed of the Federal High
Court Abuja declared as illegal and unconstitutional the control and
disbursement of funds earmarked for the judiciary by the executive arm of
government. The declaration effectively grants fiscal autonomy to the third arm
of government and protects it from undue influence from the executive.
MY
COMMENT
This is a laudable judgment as it is in tandem with
the provisions of the 1999 constitution. Judicial independence according to Wikipedia is the concept based on the
needs to keep the judiciary away from the undue influence of other branches of
government. Courts should not be subject to improper pressure from the other
branches of government, or from private or partisan interests. Judicial
Independence in all democracies is vital and important to the idea of
separation of powers.
Regrettably, over the years, the Nigerian judiciary
have been denied the freedom to operate without interference by the executive
arm of government both at the federal and state levels, because they have been
withholding funds appropriated for the third arm of government. The executive has
demonstrated an unwillingness to recognise and respect the financial independence
of the judiciary, thereby forcing heads of the various courts to run to it and
plead for the release of funds appropriated for the judiciary.
This is in spite of the provision of Section 81 of the 1999 Constitution (as
amended) which provides 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
states under section 6 of the Constitution”.
With respect to the judiciary in the 36 states of
the federation, Section 121 of the
same Constitution similarly stipulates 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 the courts concerned.”
Therefore in view of the above constitutional
provisions Justice Ahmed Mohammed, held that the disbursement of budgetary
funds to the judiciary by the executive arm is unconstitutional, null and void.
The judge also declared that a situation whereby the
judiciary would continue to depend on the executive arm of government for its
budgeting and funds’ release offends the provision of Section 81 (2) and
Section 84(1), (2), (3), (4) and (7) of the 1999 Constitution of the Federal
Republic of Nigeria.
CONCLUSION
The Judiciary is an arm of government like the
Executive, and not a Ministry under the Executive, if the National Assembly
does not submit its budget to the Executive Arm for appropriation and
disbursement, why should the judiciary do so?
The provisions of Sections 81 (3) and 162 (9) of the 1999 constitution are crystal
clear in respect of funding of the judiciary and the concept of separation of
powers envisages a level of independence for the Judiciary and this is to
ensure that it secures sufficient detachment to act as a check on the other
arms of government and also be in the best capacity and position to apply the
rule of law in any situation without fear or favour. So, to that extent, I
believe that the judgment is a welcome development.
Yinka Olaiya is an Associate at Ayodele Olugbenga & Co
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