Judiciary and Challenges of Financial Autonomy, Ex-Parte Orders

The recent 2021 All Nigeria Judges’ Conference was an opportunity for the Chief Justice of Nigeria, Justice Ibrahim Tanko Muhammad, to highlight the challenges facing the judiciary, Alex Enumah writes

The Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad, last week cried out that it would be difficult for the judiciary to be impartial and objective in a democracy when it is not autonomous. He lamented that the third arm of government still remains financially tied to the executive.

The judiciary is the guardian and protector of fundamental human rights as well as the arbiter of disputes among all levels of government. This is why many feel that the judiciary ought to be independent so as to be free to perform its functions without fear or favour. This is the primary goal of separation of powers — to enable the three arms of government to be functionally independent of each other.

But despite the constitutional provision, the judiciary is still dependent on the executive – governors at the state level – for their funding.

Speaking at the 2021 biannual All Nigeria Judges Conference for courts of superior records in Abuja, Justice Muhammad stressed the need for financial autonomy upon which the impartiality of the judiciary is anchored.

He also argued that financial autonomy would help to avert a repeat of the Judiciary Staff Union of Nigeria (JUSUN) strike that grounded the judiciary for months. He also called for more funding for the judiciary.

The conference with the theme ‘Promoting judicial excellence in the administration of justice,’ offered judges a chance to collectively strategise and tackle the problems of court inefficiencies, poor infrastructure and condition of service, decay of intellectual capacity and corruption.

“Financial independence is not just desirable; it is crucial, vital, constitutional and imperative to allow judiciary to effectively discharge its mandates. The importance of that role is evident in the provision of Section 6 of the 1999 Constitution, (as amended), which vests wide constitutional powers on the judiciary. It similarly thrusts on judges the responsibility to fairly, justly, judiciously and impartially exercise judicial powers.

“Without appearing to contradict me, I yield to the fact that it may be difficult for the judiciary to be impartial and objective in a democracy where it remains financially tied to the executive. It is trite that the foundation of impartiality is independence.”

Even though the CJN commended President Muhammadu Buhari for granting financial autonomy to the judiciary, he said he was saddened by the fact that only a few states have implemented the agreement relating to the funding of state judiciaries.

“Majority of the Heads of Courts still go caps in hands to the governors to beg for what is constitutionally due to them. As such, I urge the governors to emulate the federal government by ensuring that Section 121 (3) of the 1999 Constitution (as amended) is fully adhered to and implemented.

“I also counsel the governors to remember that the judiciary cannot be regarded as being independent unless it can adequately meet its needs without kowtowing to them for funds.”

Justice Muhammad lamented that among judiciaries in the Commonwealth, the Nigerian judiciary is the most burdened, harassed and overstretched with political cases and disputation”.

He however added that this wouldn’t deter them from rising to the challenge and restoring public confidence in the judicial system by resisting the tendency to issue incessant ex-parte orders.

The number one judicial officer in the country used the opportunity to again sound a note of warning to judges in the country to desist from giving incessant ex-parte orders in order not to project the judiciary in a bad light. He said the judges must rise and restore the public confidence bestowed on them by desisting from giving incessant ex-parte orders that have portrayed the judiciary in a bad light.

The CJN lamented the condescending state to which lawyers all in the bid to please their clients, mainly politicians through the support of their collaborating judges, have dragged the nation’s judiciary down. He warned that if the ministers in the temple of justice do not retreat and retrace their steps, they will not only bring ruin upon themselves but the entire nation.

The CJN stressed that it is important to have an incorruptible judiciary, insisting that it is the desire of the citizenry that justice must be done without delay at all times, and be seen to have been done.

He added that judicial officers need to rise to the challenge and restore public confidence in the ability to dispense justice without fear or favour and in line with the knowledge and understanding of the law.

He stated that the creditable performance of the judiciary and its timely intervention prevented the present democratic status of the country from collapsing.

Justice Muhammad categorically stated that Nigeria’s democracy would have been truncated if not for the timely intervention of the judiciary.

“I make bold to state further that but for the timely intervention of the Nigerian judiciary, our present democratic status would have probably collapsed and fallen like a pack of ill-arranged cards,” he stated.

The conference was declared open by President Buhari, who was represented by Vice President Yemi Osinbajo.

President Buhari reiterated the commitment of his administration to ensuring financial independence for the judiciary, stating that investment attracted by the country depends on the quality of its justice delivery. He said Nigeria was part of the global marketplace for investment and legal services, which is largely dependent on the global perception of the nation’s justice system.

“The extent to which we can attract business to our country depends in part upon investor perception of the quality of our justice delivery system. If we are seen as inefficient and ineffective, we would lose out to more efficient systems.”

He also maintained that delay in the dispensation of justice, as well as the rising number of cases pending in various courts across the federation, have remained a subject of grave concern to his administration. He said there was a need for the judiciary to evolve strategies that would enhance the justice delivery system in the country.

Vice President Osinbajo, who read the president’s speech, said judges are revered and must be placed on the highest scale of probity, because of the position of responsibility they occupy in society.

Consequently, aside from urging the judiciary to weed out bad eggs within its fold that could undermine its integrity both locally and internationally, President Buhari said there was a need for courts to impose huge “deterrent costs” on lawyers that help litigants to unduly delay cases. He added that this does not only hinder quick dispensation of justice, but gives the judiciary a bad image.

“As my lords are aware, delay in the dispensation of justice, coupled with the increase in the number of cases in our courts, has remained subject of grave concern. As someone said, our problem is not access to justice; it is exiting the justice system. And I know that the delays are not necessarily the fault of the judges. Lawyers are often also responsible.

“Should we not then, as has been suggested by some, evolve a court award system that recognises the court as the final and extensive public resort, and as such, delays and other dilatory tactics are visited with deterrent costs.

“The other point that I think must be made, is that of judicial integrity. There is in my humble view, nothing as important as for judges to be trusted for honesty and integrity. Men and women who have powers over the lives and livelihood of others are not like the rest of us. We must place them on the highest scale of probity.

“I will like to urge that your lordships must not allow a few to undermine the respect and trust both local and international that our judiciary has built up in over a century of its existence,” he stated.

While commending various heads of courts for adopting innovative approaches that ensured that wheels of justice moved unhindered, despite challenges that were posed by the COVID-19 pandemic, President Buhari said the federal government would continue to partner with the judiciary to ensure its independence.