Why Judiciary autonomy has not been implemented- Tambuwal

 

By Adesuwa Tsan

365Daily – Sokoto State Governor, Aminu Waziri Tambuwal, has restated the commitment of Governors to the autonomy of the judiciary and the legislature, while blaming its non-implementation on the lack of a framework.

He, however, emphasised that the Governors were concerned about the constitutionality of Executive Order #10 of 2020 issued by President Muhammadu Buhari, which he said “was completely unnecessary and ill advised.”

Tambuwal, who is the Vice Chairman of the Nigeria Governors Forum and Chairman of the Peoples Democratic Party (PDP) Governors Forum, said this in Ekiti State on Wednesday, May 26, 2021, at the Special Attorney-General’s Colloquim in honour of Honourable Justice Ayodeji Simon Daramola, the Chief Judge of Ekiti State.

Speaking as the guest lecturer on the theme, ‘Judicial Autonomy: Perspective of the Nigeria Governors Forum’, he clarified that while it is within the right of the President to issue Executive Orders, the Constitution had already addressed the subject of financial autonomy for the judiciary in Section 121(3).

He said therefore, the Presidential Executive Fiat was not necessary for the law to become implementable.

Tambuwal said the action that needed to be taken was the establishment of a framework for its implementation as “Provisions of the Constitution are self-executing and S.121(3) is not an exception.”

He added: “Any Governor who refuses or neglects to enforce these provisions would be in clear violation of his Oath of Office. S121(3) requires only administrative measures to be implemented.

“As Governors of the 36 States under the platform of the Nigeria Governors’ Forum (NGF), let me state very clearly that we are unequivocally committed to the autonomy of the judiciary and the legislature.

“In the journey to our current position as Chief Executives of our various States, we have all benefitted from the independence and professionalism of the judiciary, be it at the level of administering our Oath of Office or our electoral victory being upheld at the Tribunal or in Court in the interest of democracy, justice, and fairness.

“The concept of judicial autonomy has its foundations in the time tested doctrine of Separation of Powers.”

The Governor continued: “As Governors, we will be failing in our responsibility if we refuse to draw the attention of the President, stakeholders and the country to grave concerns about the constitutionality of Executive Order #10 of 2020. That was the basis of the position that we took on the Executive Order #10.

“The Executive Order #10 ostensibly intended to support the implementation of judicial financial autonomy, was completely unnecessary and ill advised. Let me at this juncture state clearly that we never questioned the right of Mr. President to issue Executive Orders. We only stated that S.121(3) did not require Presidential Executive Fiat to become implementable. Provisions of the Constitution are self-executing and S.121(3) is not an exception. Any Governor who refuses or neglects to enforce these provisions would be in clear violation of his Oath of Office. S121(3) requires only administrative measures to be implemented.”

Highlighting some portions of Executive Order #10 that the Governors took exception to, he stated: “1. Where there is breach of Section 121 (3) of the Constitution, it is only the Court that can declare deduction at source monies standing to the credit of the Judiciary and Legislature in the Consolidated Revenue Fund (CRF) of the State.

“As such, the Authorisation to the Accountant General of the Federation to deduct money without having recourse to Court is a violation of State Sovereignty and undermines the constitutional powers of the Governor as the Chief Executive of the State.

“2. On the Appropriation and Authorisation provision in Section 1 of the Order, the President has no constitutional power to prescribe what allocation should fall under a First Line Charge and the Attorney General of the Federation cannot make regulation to enforce an unconstitutional power of Mr. President.

“3. On the Determination of the Budget in Section 2, it is outside the Executive powers of the President to dictate to a State how it should organise its governance and its processes or in the case of the State Legislature, what legislative measures it should take to achieve a particular purpose. A State Government is not obliged to obey unconstitutional directives issued by the President.

“4. On Section 3, it is also beyond the powers of the President to prescribe the establishment of a State Judiciary Budget Committee. The President cannot impose obligations on the functionaries of the State Government without the concurrence of the State Governor. The budget processes outlined in this Section are a violation of State Sovereignty and the federal principle as the President is attempting to expand the provisions of Section 121(3) of the Constitution without following the due process of constitutional amendment.

“5. Section 5 is a directive addressed to the House of Assembly of a State which is an independent arm of the government established by the Constitution and not amenable to the supervisory jurisdiction of Mr. President. Moreover, treating allocations in Appropriation Laws as if they are cast in iron is founded on utopian economic principle which cannot work.

“6. On Section 6, though adequate funding of the Judiciary is necessary, the Presidential directive to make special extraordinary capital allocations for the Judiciary is an unlawful interference in the governance of States as allocations are made based on the needs and priorities of each State and availability of funds.

“The President cannot dictate to the Governor what it should do within a specific time frame in their budget. It remains the function of the State Legislature to appropriate money and It is after payment to the Judiciary that it becomes the duty of the Head of a Court to manage the resources of the Judiciary until the next allocation is due.

“7. Let us not forget that the Federal government by Section 81(3) is responsible for all the capital and recurrent expenditure of all courts provided by the Constitution in Section 6 but has left the State government to continually fund capital expenditures of the Courts.

“This is despite the fiscal constraint State governments continue to face considering short falls in federation revenues. It is no news, the recent impact subsidy payments have had on what States get monthly, despite the increases recorded in the global oil market.”

The Governor, while lamenting that dwindling resources have caused most state governments to review their total revenue and expenditure envelopes downwards since 2020, said relying on “the combined reading of the provisions of S. 81(3) (c) and Item 21 (e) of the Third Schedule to the 1999 Constitution, the NGF has made the point that it is the responsibility of the Federal Government of Nigeria to fund all the capital and recurrent expenditures of all Courts of Records as provided by S. 6(5)(a) – (i) of the Constitution of the Federal Republic of Nigeria (As Amended).

“What happens in practice is that the Federal Government pays the recurrent expenditure including the salaries of Judges and Khadis and leave States to take care of the capital,” the NGF Vice Chairman noted.

He listed other issues raised with Order 10 as the unlawful status of the Presidential Implementation Committee (PIC) created by the President to advise him which, according to him, is incapable of giving a lawful order or making a valid recommendation in the context of the Constitution and the difference in the fiscal environment at the Federal and state levels.

“The States have commitments that make it difficult to navigate as comfortably as would otherwise be the case if they had sufficient operational funds.

“For instance, States cannot independently obtain foreign loans without the involvement of the Federal Government. Such loans must comply with the provisions of the Fiscal Responsibility Act as well as Guidelines set by the Federal Debt Management Office (DMO). Meanwhile, the question of legacy loans inherited from preceding administrations have been glossed over. How do we manage this exposure in the context of Executive Order #10?” he queried.

He concluded by saying that “the delay in implementation of financial autonomy for the Judiciary is simply a matter of procedures, governance structures and the quest for legal clarity.”

“We are happy that a consensus has finally been reached on this matter. The agreement allows a period of 45 days for implementation structures to be put in place across States including the enactment of a Fund Management Law which will grant the Judiciary the power to manage its capital and recurrent expenditures in accordance with the provisions of constitution. Budgetary releases to the judiciary will be pro-rated based on the actual revenues recorded each month by the State government.

“Monthly revenue reconciliation and allocation will be presided over by a State Account Allocation Committee (SAAC) to be set up under the Fund Management Law – a similar practice to what we have at the federal level.

“We hope that this will put an end to the long weeks of strike action that have seen our judicial and criminal justice system grounded to a halt. We have lost so much in the past weeks.

“The big takeaway is the centrality of communication, sincerity, trust and dialogue. We have requested that the President disbands the Presidential Implementation Committee on the Autonomy of State Legislature and Judiciary, to avert future rancor between the various arms of government, arising from misconceived guidance from a committee lacking the requisite understanding of constitutional matters.”

 

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