The lack of financial autonomy for the legislative and judicial arms of government has been a long-standing issue in Nigeria. To effectively achieve the purpose of separation of powers as well as checks and balances in the polity, financial autonomy for every arm of government is key.
The speakers of state assemblies, at the end of their recent annual conference singled out financial autonomy for legislature and judiciary as an issue that needed urgent attention for the sake of national growth.
On the 22nd of May, 2020, President Muhammadu Buhari signed Executive Order 10, which seeks to establish the financial autonomy of the legislature and judiciary at the state level. Several newspapers reported that the President signed the order “into law.” Not surprisingly, the reports sparked a debate about the constitutionality of the order.
Buhari’s action was predicated on the power vested in him as the President of the Federal Republic of Nigeria under Section 5 of the constitution of the Federal Republic of Nigeria 1999 (as Amended), which extends to the execution and maintenance of the Constitution, laws made by the National Assembly (including but not limited to Section 121(3) of the 1999 Constitution (as amended), which guarantee financial autonomy of the state legislature and state judiciary.
The objective of the Executive Order 10, also known as the “Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020,” is to enforce the implementation of the 4th Alteration to the Constitution and provide a practical framework for the legislative and judicial arms of state governments to have financial autonomy.
The 4th Alteration, which amended Section 121(3) of the Constitution, provides that: “Any amount standing credit of the – a) House of Assembly of the state, and b) Judiciary, in the Consolidated Revenue Fund of the state shall be paid directly to the said bodies respectively; in the case of judiciary, such amount shall be paid directly to the Heads of the Courts concerned.”
Unfortunately, State Courts (Judiciary) in Nigeria and of course the legislature have over the years relied on the executive for their funding. This is clearly antithetical to the principle of separation of powers as guaranteed under the Constitution.
In fact, the interim report of the Presidential Implementation Committee on the Autonomy of the State Legislature and State Judiciary states that no state of the federation, apart from the Federal Capital Territory (FCT), has complied with the provisions of Section 121(3) of the Constitution.
The committee’s report ties the non-compliance to the non-availability of uniform modalities for full compliance as obtainable at the federal level. Thus, the report posits that a template, modelled after the framework at the federal level, should be developed to serve as a uniform standard for implementation by the states.
Legal scholars have over the years called for a complete independence of the judiciary including financial autonomy for State Courts. The Nigerian Constitution acknowledges the importance of financial autonomy for each arm of government and made provision to safeguard this.
The desire to uphold judicial financial autonomy led prominent Senior Advocate of Nigeria, Olisa Agbakoba, to file a suit against the Attorney-General of the Federation (AGF), the National Judicial Council (NJC) and the National Assembly in February 2013.
His suit challenged the extant methods of appropriating the judiciary’s budget in the Appropriation Bills, as opposed to being a first-line charge paid directly to the judiciary. He contended that this was contrary to the constitutional provisions of Section 81(3) of the 1999 Constitution.
In his written address supporting his originating summons, Agbakoba argued that, “the continued dependence of the judiciary on the executive arm of government for its budgeting and funds release is directly responsible for the present state of underfunding of the Judiciary, poor and inadequate judicial infrastructure, low morale among judicial personnel, alleged corruption in the judiciary, delays in administration of justice and judicial service delivery, and general low quality and poor out-put by the judiciary.”
Also, the Judiciary Staff Union of Nigeria (JUSUN) instituted a similar action against the NJC, AGF and the Attorneys-General of the states in the same year, and also claimed reliefs for the implementation of the financial autonomy of the judiciary at both the federal and state levels in accordance with the provisions of Sections 81(3) and 121(3) of the 1999 Constitution.
Both suits were decided in favour of the financial autonomy of the judiciary. However, after several years, major parts of the judgments are still being disobeyed as state governments continue to breach the Constitution.
Clearly, the outcome of the state executive’s control of the purse strings is the notion that houses of assembly are rubber stamps of state governors.
The ability of judiciary to function optimally rely on its independence, which is inextricably tied to its financial autonomy. So also, the ability of state legislatures to truly provide checks and balances for the state executives is reduced to nothing when the lawmakers have to lobby before accessing funds that legitimately belong to them.
For a country like Nigeria to advance politically, and deliver dividend of democracy to her citizens, every arm of government must be independent in every aspect as enshrined in the construction of the country. One of the ways to achieve this is to grant financial autonomy to the judiciary and legislature, particularly as present situation demands.