Speech By Rt. Hon. Aminu Waziri Tambuwal At The Attorney-General's Colloquium In Honour Of Hon. Justice Ayodeji Simon Daramola

SPECIAL ATTORNEY-GENERAL’S COLLOQUIUM IN HONOUR OF HONOURABLE JUSTICE AYODEJI SIMON DARAMOLA, CHIEF JUDGE, EKITI STATE

SPEECH BY HIS EXCELLENCY, RT. HON. AMINU WAZIRI TAMBUWAL, CFR GOVERNOR, SOKOTO STATE & VICE CHAIRMAN, NIGERIA GOVERNORS’ FORUM

WEDNESDAY, 26TH MAY 2021, ADO EKITI

THEME: JUDICIAL AUTONOMY: PERSPECTIVE OF THE NIGERIA GOVERNORS’ FORUM.

Let me appreciate, most sincerely, the organizers of this colloquium for the privilege of participating as Guest Lecturer. I congratulate my Lord Justice Ayodeji Simeon Daramola in whose honor we are gathered. 

The topic " Judicial Autonomy: Perspective of the Nigerian Governors Forum" is no doubt topical and has been so as long as it has. If nothing else, the fact that it has stuck to national headlines like a leach so frequently and consistently is proof that it is unlikely to go away without a positive resolution.

Perhaps nothing has been more upsetting to the Nigerian polity in recent times than the question of autonomy for the judicial and legislative arms of government at the sub-national level. The 4th alteration of the 1999 Constitution of the Federal Republic of Nigeria in Section 121(3) provides that: 

“Any amount standing to the 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 the judiciary, such amount shall be paid directly to the heads of the courts concerned.”

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. Baron Montesquieu's doctrine of separation of powers, also referred to as the tripartite system, prescribes that political power is shared, in the modern setting, among the legislature, the executive and judiciary. The main object is to avoid autocratic government by eliminating the over concentration of powers in one person, agency or institution. It's critical democratic elements is the principle of checks and balances between and among the three arms of government.

In Nigeria, the Constitution of the Federal Republic prescribes this separation in Section 4 (legislature), Section 5 (executive) and Section 6 (judiciary). Briefly stated, the legislature makes the laws, the executive implement, executes or enforces the laws while the judiciary interprets the laws and settles disputes between and among the arms of government and also between and amongst citizens and citizens and government.

The recent misunderstanding on the financial autonomy of the Judiciary is predicated on the need to establish an implementation framework to the 4th Alteration of the 1999 Constitution of the Federal Republic of Nigeria in Section 121(3). What we have questioned, and we have made this known at every opportunity, is the process of implementing this provision of the Constitution. 

As Chief Executives of our respective States, we feel compelled by our Solemn Undertaking Under Oath to protect and preserve the Constitution of the Federal Republic of Nigeria 1999 (As Amended). The Presidential Executive Order No 10 of 2020 is a unique piece of regulation which we believe deserve highest scrutiny if we must uphold the federal principle which forms a fundamental feature of our Constitution.

This is the basis for our engagements with relevant stakeholders at various levels as well as our participation in the Technical Committee, which was constituted to explore how to implement financial autonomy granted by the Constitution. 

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.

Ladies and Gentlemen, permit me to highlight some portions of Executive Order #10 that the Governors took exception to:

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. Since the year 2020, most State governments have reduced their budget, reviewing downwards their total revenue and expenditure envelopes. This is the reality, and all arms of government must work within these exogenous constraints. We cannot spend what we do not have. From 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.

8. On the implementation of the Order under Section 7, the Presidential Implementation Committee (PIC) is not a body established by law but purely an administrative body created by the President to advise him. The PIC is incapable of giving a lawful order or making a valid recommendation in the context of the Constitution. States should be allowed to, on their own, seek the means of implementing S. 121(3) and many States have already done so. Others are in the process of doing so.

9. Another point is that the fiscal environment at the Federal level is different from what obtains at the State level. 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?

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 aware that this delay led to litigations by both stakeholders. Three cases were instituted in the first instance. The three cases for which judgments were given in 2014 were FHC/ABJ/CS/667/13 i.e. JUSUN against the governors of the 36 states and others, while the other two were those by the former President of the NBA, Olisa Agbakoba to wit FHC/ABJ/CS/63/2013 and NAD/56/2013. The judgments in all the three cases affirmed the sanctity of the said constitutional provisions. I should like to state here that the matter remained unresolved because the sanctity of the constitutional provisions was never in contention nor was it the cause of delay in implementation.

The Judgment in Agbakoba indeed raised two issues which further compounded the matter: 

    i. that by the provision of Section 81(3) any monies standing to the credit of the Judiciary should be paid directly in whole and not piecemeal through warrants and not through Ministry of Finance, the Budget Office , Office of the Accountant General of the Federation or any other person of authority! This is strange and impracticable because the financial management of the resources of the Federation is an executive and not judicial function so there must be an authority that should move the money from the Federation Account to the account of the Judiciary. Secondly the Federation earns its revenues and accounts for same on a monthly basis for all the arms and tiers of government and thus to suggest that the amount standing in favour of the Judiciary be transferred in whole and not through monthly warrants is not only impracticable but does not in fact conform with the true spirit of the constitutional provision in issue.

   ii. that the Judiciary should not submit its estimates through the Executive but directly to the legislature. Though this no doubt removes the undesirable shadow of subjugation, the executive function of providing budget ceilings based on revenue projections is inescapable. Section 81(1) &(2) has provided that estimates of revenues and expenditure shall be laid before the legislature while Section 80(4) of the Constitution states that no moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation, except in the manner prescribed by the National Assembly. Since it is the executive that provides the National Assembly with revenue information that informs their budgeting decisions, the channel through which the estimates of the Judiciary arrive the legislature, to me, is of no moment.

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.

In conclusion, I want to congratulate the Chief Judge of Ekiti State, Justice Ayodeji Simeon Daramola, for this well-deserved honour and to thank my good friend our host, the Honourable Attorney General & Commissioner for Justice for Ekiti State for providing this platform to speak truth as State Governors on this matter to our critics. Once again, we re-assure the Judiciary of our resolve to see to the implementation of the agreement but more importantly, respect your independence as defined by our constitution.

Thank you.