By David D. IHUA-MADUENYI, ESQ.
In the past few weeks, there has been a continuous call for both the Legislature and the Judiciary, especially at the various States to be autonomous. The Calls made by the Parliamentary Staff Association of Nigeria (PASAN), and Judiciary Staff Union of Nigeria (JUSUN), have become the loudest, culminating into a nation-wide strike called by both PASAN and JUSUN.
No need to remind us of the effects of the strike actions, but suffice to say that the strike called by JUSUN, has very devastating effect upon lawyers, litigants and the ordinary citizens of Nigeria.
Other well-meaning citizens have also stood up in support and defence of the actions of both PASAN and JUSUN. One common denominator, in the actions of PASAN and JUSUN, is that they are asking the Executive arm of Government to implement financial autonomy for the Legislature and the Judiciary, as enshrined in the 4th Alteration, which amended Section 121 (3) of the 1999 Constitution of the Federal Republic of Nigeria. In fact, JUSUN had gone a step further in this struggle. It has a subsisting judgment of a court to support and backup its fight. And the President Muhammadu Buhari has done well by bringing the issue to the fore for implementation, by signing Executive Order 10 on 22nd May, 2020.
Flowing from the above is the following matters:-
- The call and actions of PASAN and JUSUN, has now become a constitutional matter. A call upon the State Executives to adhere, obey and comply with constitutional provisions.
- Their call and action is not just for the implementation of the constitution, but for the enforcement of the subsisting judgment of a court of competent jurisdiction.
- The members of the PASAN and JUSUN should not have been “left alone” to shoulder this “fight”, over a constitutional issue.
- The action now should not be to ‘beg’ the Governors, but to put up a joint effort, by ordinary Nigerian citizens, championed by the Nigerian Bar Association and the Labour Union/Congress, to push the Governors to compliance. This is why the national action taken by the Nigerian Bar Association in the nation-wide peaceful match, though coming late is a welcome development. It is not only face-saving, but encouraging. The Bar should now take over the struggle. For the objectives of the NBA is among others “maintenance and defence of the integrity and independence of the Bar and the Judiciary”. This fight is for the independence of the Judiciary.
- The members of the PASAN and JUSUN are not going to be the ultimate beneficiaries of the “fruits” of the autonomy. Rather, all Nigerians would be the beneficiaries, by having quality, independent, impactful and people oriented legislations passed; and having very unbiased, bold and fearless judgments and orders from our courts actually, without fear or favour.
- There is a constitutional provision which seems to embolden the heads of the Executive arms (at both the federal and states levels), that they (the executives) are the custodian of the peoples’ mandate. They see themselves as the head of all the other organs of government, “the guardian of the People”. See Sections 130 and 176 of the 1999 CFRN as Amended.
The above assertion finds support in other provisions in the following instances:-
- The executives have the sole prerogative to make all major appointments. See Sections 147, 171, 192 and 193 of the 1999 CFRN as Amended. The Legislatures are only involved in their ‘Confirmation’.
- The executives control the finances and votes in the country. Even though the power of appropriation lie with the Legislatures. See Sections 163 and 164 of the 1999 CFRN as amended.
- The executives control the states’ instruments of force and cohesion, i.e. the Security Agencies. See Sections 215 and 218 of the 1999 CFRN as Amended.
- Only the heads of the executives have constitutional immunities. See Section 308 of the CFRN as Amended.
The members of the other organs enjoy only what I call Institutional Privileges. Which are the privileges of a legislator or a judicial officer from civil liabilities arising from the performance of their legislative and judicial functions. See Section 3 of the LEGISLATIVE HOUSE (POWER AND PRIVILEGES) ACT CAP. L 12 LFN 2004. See also EL-RUFAI V. HOUSE OF REPRESENTATIVES 2003 FWLR (PT. 173) 162. And the Laws (Acts) of the various Courts for that of the Judicial Officers.
- The absence of Code of Conduct, that holds the heads of the executives accountable in anyway, even after their tenure. Nothing holds them to even their Campaign promises or Party manifestos/programme.
- Government and governance in Nigeria is personalised, not institutionalised. The individual sees himself as the government.
- The heads of the executives should not see the issue of autonomy as an affront on its authority. Or see it as doing the Legislature and the Judiciary a favour, by implementing financial autonomy.
This is why the statement credited to the Chief Justice of Nigeria (CJN), while urging the JUSUN to suspend the strike, that he (the CJN) cannot call on the Governors to comply, as the Governors would in return ask him for ten favours in return, is not a good way to understand the issue.
- This case has shown the common man that a person can have the judgment of a court in his favour, and still beg the judgment debtor for negotiation. This should call for a rethinking of our judgment enforcement process.
- The JUSUN who already has a subsisting judgment of a court of competent jurisdiction in its favour of the implementation of judicial autonomy should proceed to court, for the enforcement of the judgment.
The States whose Governors are already implementing the financial autonomy for the legislature and the judiciary should be “named and hailed”.
While those whose Governors have refused to implement, should be “named and shamed” as enemies of democracy and rule of law.
Since the federal government appears to be sympathetic to the plights of the States Legislature and Judiciary, JUSUN should move to enforce the terms of the subsisting judgment, by compelling the Federal Government (Accountant-General of the Federation), to deduct from the funds accruing to the states, from the Federation accounts, and pay same to the Consolidated Revenue Funds in favour of the States legislature and Judiciary, to be accessed by the other states organs directly.
Once this is done, the Governors would be the ones begging for a meeting and a political settlement to the issue.
* David D. Ihua-Maduenyi, Esq. is a Chief Magistrate with the Rivers State Judiciary.