A case for better funding of the judiciary, by Funso Afolabi

Posted by Funso Afolabi | 22 December 2018 | 1,204 times

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•CJN, Justice Onnoghen

Among the three arms of government, the judiciary is the least funded. While the executive and the legislature are able to negotiate better deals for themselves, the judiciary isn’t so lucky.

The judiciary is therefore left at the mercy of both the executive and the legislature for funding.

The consequence of this is that it does not get the resources it needs to deliver on the mandate given to it by Section 6(1) and (2) of the constitution which provides: (1) “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”

(2) “The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution.”

The problem

The funding challenge facing the judiciary manifests in different ways. Granted that government resources are limited, therefore neither the executive nor the legislature gets the funding it needed. In the face of dwindling revenues, shortage of funds is not only a challenge to the judiciary alone but to the government as a whole.

But the judiciary is worse off. This is because it has no leverage in the budgeting process. The executive prepares the appropriation bill while the legislature passes it into law. The judiciary is then left at the mercy of the two arms of government.

More often than not, the executive reduces the budget estimates submitted to it by the judiciary. Sometimes, a sympathetic legislative jerks it up. For instance, while President Muhammadu Buhari allocated N100 billion to the judiciary in the budget estimates he submitted to the National Assembly for the 2018 Appropriation Bill, the legislature in its wisdom increased it to N110 billion. That is N10 billion above the same N100 billion that was appropriated for the 2017 fiscal year.

When the budget is finally approved, the executive then decides how to release it. Sometimes it releases funds for the judiciary on quarterly, monthly or bimonthly basis without considering the needs of the judiciary, thereby forcing it to adjust its plans. The executive gives to the judiciary what it thinks is right and not what the judiciary actually needs.

Apart from the uncertainty it creates, releasing funds to the judiciary piecemeal is usually very frustrating. It makes planning difficult.

Evidence of inadequate funding

While the federal judiciary has fared better in terms of funding, courts at state level are barely getting by. Judges in some states sit in decrepit court rooms. Facilities that should make their court rooms comfortable are lacking.

Many governors hold their judiciaries to ransom by refusing to release funds to the courts in violation of the constitution.

The Chief Justice of Nigeria, Justice Walter Onnoghen, while speaking at the opening ceremony of the 2018 orientation course for newly appointed magistrates at the National Judicial Institute in Abuja, said: “The issue of inadequate funding at the state level is one of the greatest challenges confronting the judiciary of this nation. These challenges include inadequate funding of manpower development and inadequate facilities, among many others.”

According to Onnoghen, how free or democratic a nation was could be determined by the powers the judiciary was allowed to exercise. “It is quite often said that the litmus test to find out how free and democratic any nation is; is to take a cursory look at its judiciary to find out what powers the nation is prepared to concede to this vital partner in governance,” he added.

Capital projects embarked upon by the judiciary could not be completed due to inadequate funding.

Sometimes, judicial officers and other court staff don’t get their salaries and allowances on time, thereby exposing them to corruption.

Reforms, including automation of the judicial process, are being hampered by lack of funds.

Independence of the judiciary is threatened by inadequate funding. Some judges are afraid to deliver judgment that goes against their governors to avoid being punished. Some are under perpetual apprehension. In the real sense of the word, many judges are not independent.

More responsibility, less funding

Aside from section 6 of the constitution which gives judicial power to the judiciary, the legislature has continued to increase the workload of the judiciary.

For instance, the Constitution (4th Alteration) Act, No. 21 which President Muhammadu Buhari assented to, amends Section 285 of the constitution authorising the court or tribunal to suspend ruling on preliminary objection or interlocutory issue relating to jurisdiction and deliver same at the stage of final judgment. It inserts six new sub-sections that is (9) – (14). This is more work for the judiciary.

New section 285 (10) states: “A court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit”; new Section 285 (12) says: “An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.”

In other words, the constitution Amendment No. 21 mandates pre-election matters to be determined on time just like election petitions.

The import of this amendment is the increase in judges’ workload.

There will be a general election next year. The courts are flooded with pre-election matters already. After the elections, tribunals will start sitting. The courts will be over stretched.

Though more responsibility had been given to the judiciary, the executive has not deemed it necessary to allocate more resources to the judiciary.

The way out

In the speech he delivered at the 2015 All Nigeria Judges Conference, President Muhammadu Buhari said: “This administration is committed to the financial independence of the Nigerian judiciary in accordance with extant laws. We believe that the judiciary must be treated fairly and must be treated in much the same way as the executive and the legislature.” The time has come for the president to back up his talk with action.

Nevertheless, the President deserves commendation for increasing allocation to the judiciary since he took over power. He increased the budget for the judiciary from N70 billion in 2016 to N100 billion for the 2017 fiscal year. He maintained the same N100 billion to the Judiciary for the 2018 fiscal year though the legislature added N10 billion to it.

The President should be encouraged to do more in line with his promise to help the judiciary reposition itself.

He should also ensure implementation of the Constitution Fourth Alteration Bill he assented to in June which grants financial autonomy to the State Houses of Assembly and the States’ Judiciary.

Under the new law, amount standing to the credit of the judiciary will be paid directly to the judiciary of that state, no more through the governor and no more from the governors. The reality however, is that most governors are in breach of the law. The leadership of the judiciary will have to find creative ways to engage the governors and persuade them to comply with the new law.

Resources are getting scarce. Revenue from oil is not likely to rise in the nearest future. It therefore behoves on all institutions of government to avoid waste and make judicious use of resources allocated to them. Judiciary will be better served if it heeds this advice.

•Afolabi writes from 20, Alimi Aina Street, Iba, Lagos.



Source: News Express

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