Financial Issues in the Nigerian Judiciary: Funding and Remuneration

This article by Onikepo Braithwaite, is a monograph which was written in 2021 about the Judiciary Staff Union of Nigeria  (JUSUN) Strike that year, and its main demand for the financial autonomy of the Nigerian Judiciary, in order to achieve the independence of the Judiciary. The inconsistencies in the Constitutional Provisions with regard to the funding of the Judiciary are highlighted in this work, as well as the poor remuneration of judicial officers. As the Breakout Session on the Presentation of the Nigerian Bar Association’s Memo to the Revenue  Mobilisation Allocation and Fiscal Commission (RMAFC)  on Judicial Remuneration and Allowances  at the NBA 2023 Annual General Conference holds today, it is apposite that some of these relevant issues are taken into consideration presently

On April 6, 2021,  the Judiciary Staff Union of Nigeria (JUSUN) embarked on a nationwide strike which lasted until June 9. The main demand of the Union was financial autonomy  – that the Judiciary could only achieve real/full independence if it is financially independent, as opposed to being dependent on the Executive. It took the intervention of the National Judicial Council (NJC), for the strike to be suspended. Were their demands legitimate? Was the strike successful? What are the constitutional provisions as far as the funding of the Judiciary is concerned? What about the remuneration, allowances of judicial officers and their conditions of service – though the strike assisted in bringing the issue to the fore yet again, so far, it did not cause Government to take action and review the remuneration of judicial officers. This paper seeks to look into some of these issues. However, consequent upon the strike, a Memorandum of Action (MOA)(‘Implementation of Financial Autonomy for the State Legislature and the Judiciary’ with effect from March 24, 2021) was signed by the Union and State Governors in May 2021, providing inter alia, that the account of the State Judiciaries would be credited with the pro rated amount standing to their credit under the 2021 Appropriation Laws of each State, straight from the Federation Account, paid to the heads of courts through the National Judicial Council (NJC). 

Introduction 

A situation in which Chief Judges of States or Heads of Courts have to go cap in hand to Governors or the Presidency to solicit for funds to run their courts or to carry out capital expenditure, is unacceptable. But, this has mostly been the case, as stories abound of Chief Judges being seen in the various Governors’ offices, soliciting for funds. This paper which comes on the heels of the JUSUN strike, not only examines the issue of the funding of the Judiciary, but also discusses the concept of the independence of the Judiciary, the third arm of Government, vis-à-vis its under-funding, particularly with regard to the inadequate salaries and allowances paid to our judicial officers, whom despite the fact that they have one of the busiest dockets in the world, are so poorly paid. Worse still, our judicial officers have not had an upward review of their remuneration packages in at least 13 years (Part II A & B, Certain Political, Public and Judicial Office Holders (Salaries and Allowances, Etc)(Amendment) Act 2008) in spite of the inflation and devaluation in currency that Nigeria has experienced, especially over the last six years. Truth be told, the inconsistencies in the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018) (the Constitution) as regards the funding of the Judiciary, does not help matters.

Funding

JUSUN Strike

The JUSUN Strike of 2021, is said to have been one of the longest in the history of Nigeria’s Judiciary. It is therefore, apposite to look more deeply into the provisions of the Constitution to understand the dispute better. 

Section 6 of the Constitution provides for the Judiciary; Section 6(5)(a-i) of the Constitution lists the Superior Courts of Record, while Section 6(5)(j-k) of the Constitution mentions the other courts authorised by law to exercise jurisdiction on matters which the National Assembly (NASS) and State Houses of Assembly respectively, can make laws. My humble submission is that, though not expressly listed, courts like the Magistrate Court, District Court, Area Customary Court, and the Sharia Court, are the other courts authorised by law to exercise jurisdiction on which the various State Houses of Assembly can make laws, and therefore, fall within the purview of Section 6(5)(j-k) of the Constitution, Section 6(5)(j) because of the Magistrate Court in the Federal Capital Territory. Section 6(5)(a-k) of the Constitution can therefore, be translated to mean that the superior and lower courts constitute the Judiciary, and a community reading of Sections 6(5)(a-k) and 81(3)(c) of the Constitution, means that any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation, shall be paid to the National Judicial Council (NJC) to be disbursed to the heads of the courts. Section 162(9) of the Constitution also provides for the payment of any amount standing to the credit of the Judiciary in the Federation Account to the NJC, for disbursement to the heads of the courts. The implementation of Section 162(9), constitutes part of what the aforementioned Memorandum of Action seeks to achieve. See the case of Mudiaga-Odje v Younes Power System Nig. Ltd (2013) LPELR-20306 (CA). The aforementioned provisions seem to mean that the Consolidated Revenue Fund of the Federation and Federation Account, are responsible for the funding of all the courts (Judiciary), though the type of funding is not stated therein. Section 318 of the Constitution however,  excludes Magistrate Courts from the definition of judicial office.

What is the Meaning of ‘Standing to the Credit of’? 

At this juncture, it is only proper  to interrogate the phrase ‘standing to the credit of’. We must not forget that, a budget is an estimate of income and expenditure for a particular period of time; it is not money already sitting in the bank waiting to be disbursed. According to the online Merriam-Webster dictionary, an estimate is defined as “A rough or approximate calculation”. The uncertainty of an estimate is accentuated in another definition of the term which states thus: “A guess of what the size, value, amount, cost etc of something might be”(see the online Cambridge dictionary). It follows therefore, that a budget is nothing more than a plan for income and expenditure over a given period, based on at best, a calculated guess obviously informed by certain indices. Ergo, for example, a State may estimate that in 12 months, it will have an income of N120 million, that is, N10 million monthly. The budget of the Judiciary which is passed in the Appropriation Bill of the State may be N12 million for the year (N1 million monthly), which works out at 10% of this imaginary budget. Some people are under the impression that at the beginning of the year, the sum of N12 million should be released to the Judiciary ab initio. But, the States believe that this is not tenable, because the State does not have the N120 million in its account, nor does it even have the monthly N12 million yet. If at the end of the month, the State realises N6 million, instead of  N12 million, this means that the budget is in deficit that month, and the Judiciary cannot get its N1 million which would have been what was due to it based on the N12 million out of the N120 million annual budget. At best, what would come to the Judiciary based on what was actually realised, would be N500,000, since the State only realised half of its expectation. This may be what one may say stands to the credit of the Judiciary in real terms or rather, a pro-rated amount, based on the actual income. Some have even argued that it is only after the State has met some of its obligations like debt servicing, that the amount that the Judiciary will receive can be pro-rated based on what remains after these deductions. However, another  point of view is that the funds going to the Judiciary should be a first line charge, and should either come straight from the Federation Account to the heads of courts via the NJC, or if it is coming through the State Government, be deducted immediately before any debt servicing, obligations etc.

The Confusion

Then, the confusion set in. Somewhat contrary to or a further qualification of Sections 81(3)(c), 84(2), (4) & (7) of the Constitution lists those entitled to remuneration, salaries, and allowances in the Judiciary charged upon the Consolidated Fund of the Federation, thereby excluding judicial officers of the lower courts, and limiting those entitled inter alia, to judicial officers of the superior courts of record and the recurrent expenditure of their courts, that is, the cost of running the courts – including but not limited to buying diesel, stationery, maintenance of air conditioners and generators, salaries and allowances of the staff of these superior courts too (I would imagine), since these support staff are part of the operational cost of the courts.This arrangement brings the question of Federalism to the fore. If true Federalism is at play, the question as to why the Federal Government should be directly responsible for the funding of State courts, and particularly the salaries of State Superior Court Judicial Officers and the recurrent expenditure of their courts, arises.

Nevertheless, does this mean that the State Governments are the ones responsible for the capital expenditure of their State superior courts and all the expenditure of the lower courts, whether salaries, remuneration and allowances, capital or recurrent as per the provisions of Section 121(3)(b) of the Constitution, to be funded from the Consolidated Revenue Fund of the various States, and paid directly to the heads of those courts? The foregoing constitutional provisions, are not clear on this; Section 121(3)(b) of the Constitution, as if to create more confusion, only provides that any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the State should be paid directly to the heads of the courts, with no mention of the NJC or the type of expenditure.

The Constitution however, again, shows itself to be an imperfect document riddled with inconsistencies, when in Part I Paragraph I National Judicial Council Section 21(e) Third Schedule to the Constitution, it also provides that the NJC should collect, control and disburse all moneys, capital and recurrent, for the Judiciary, neglecting to mention where the funds should emanate from, whether Federal or State. Does this mean that by virtue of this provision, all Judiciary expenditure, whether capital or recurrent of the superior courts, should be disbursed to the all heads of the courts by the NJC. This may be a tidier way of funding the Judiciary, as a whole, especially if the lower courts are also included. 

Nevertheless, this writer believes that there should be an urgent review of the provisions regarding Judiciary funding, to clear up these controversies and make for the more seamless operation of the Judiciary. The famous Agbakoba case decision, JUSUN v NJC, AGF & 70 Ors Suit No. FHC/ABJ/CS/667/13 Judgement delivered on 13/1/2014 per A.F.A. Ademola J, simply regurgitates the unclear constitutional provisions, just like Executive Order No. 10 of 2020 seeking to grant the States’ Legislatures and Judiciaries financial autonomy, in accordance with the said Section 121(3)(b) of the Constitution. 

Remuneration 

The Judge and his N10 million Loan

A Judge narrated that he had applied to the Bank where his salary is domiciled for a N10 million loan a few years ago, to complete the construction of a house on a piece of land which his father bequeathed to him, so that he could earn some extra income to augment his salary and give his children a decent education, and also not end up being homeless on his retirement. The Bank flatly turned him down and refused to grant the loan, because they said his salary was too paltry to support a N10 million loan. The Judge went on to inform me that, if not that the Lagos State Government augments their salaries monthly to increase it to about N500,000, they would go home with something in the region of a little more than N200,000. For goodness sake, are our judicial officers clerks? Yet, Lagos State High Courts for example, have one of the busiest dockets in the world.  When the Judge went on to say how he and his colleagues jostle to be included on official trips, in order to be able to receive ‘esta code’ to boost their meagre incomes, it just sounded so tragicomic. 

When I then read the illuminating article authored by Ahuraka Yusuf Isah, Special Assistant to the Chief Justice of Nigeria on Media, titled ‘The Sorry State of Judiciary Budgets and Judges’ Salaries’, I realised why the Bank refused to lend the Judge the money. The call to the Nigerian Judiciary, unlike that of the Legislature and Executive and a lot of its Judiciary contemporaries around the globe, is a call to poverty. Even the Catholic Priests who take a vow of poverty, live more comfortably than our judicial officers, and are taken care of in their retirement until death! The vow of poverty does not permit the Priests to own property, but even at that, it is unlikely that they can be rendered homeless in their retirement (like many of Judges are), since they can possibly reside in an accommodation in a Parish, or even be provided with a comfortable home, courtesy of their Parishioners.

Mr Isah’s article revealed that the Chief Justice of Nigeria (CJN) earns less than N300,000 per month as his basic salary, and the other Justices of the Supreme Court (JSC), about N206,000. With other allowances, the CJN’s monthly take home pay amounts to N480,000, while that of his brother JSCs, N751,000. If the CJN and JSCs can be paid such peanuts, the High Court Judges would be getting less. As for the Magistrates, I believe they earn less than N200,000 per month as their basic salary. Worse still, Judicial officers have not had a salary increase since 2007! God knows how many years it would have taken the Bank to recover their N10 million plus interest from the Judge, if they had granted him the loan. According to Mr Isah, while our CJN does not go home with up to N10 million per annum in salary and allowances, a High Court Judge in South Africa earns about N47 million per annum.

I watched a news clip of the President of the Court of Appeal, Hon Justice Monica Dongban-Mensem (PCA) delivering her address at the beginning of the 2021-2022 Legal Year, and frankly, the figures she reeled off as the basic salaries of judicial officers were shameful – their remuneration is definitely poor – just a few notches above that of clerical officers! From the figures Her Lordship mentioned, it seems that the monthly ‘newspaper allowance’ of Senators (just over N300,000) and possibly that of the Members of the House of Representatives (about N280,000), is higher than the monthly basic salary of the CJN and all the Appellate Court Justices!

Her Lordship quoted former President of the Court of Appeal, Hon. Justice Mustapha Akanbi CFR (of blessed memory) in a publication titled “The Main Obstacles of Justice According to Law”: “That a good judgement flows from a mind that is not bogged by the thought of – where do I get my next meal? Or where do I get the money to pay my son’s school fees? Poor conditions of service, disturb the mind. It is an obstacle to clear and positive thinking”. The PCA therefore, made a passionate appeal, saying: “We therefore, call upon the Federal and State Government to live up to their obligations under the law. I also implore the Government of the Federation and the States, to urgently review the salaries and allowances of judicial officers and staff. The salaries of Justices are static, with no graduation as in the Civil and Public Service. We have been on one salary scale, for over 10 years now”. Let me make use of a practical example here. A judicial officer of the appellate courts who earned a monthly basic salary of approximately N250,000 10 years ago,  earned about £1,000 (with an exchange rate of roughly N250 to  £1). Today, still earning N250,000, works out at about £445 (at the CBN exchange rate of roughly N561 to £1, about N200 better parallel market), over 200% less in real terms! Meanwhile, the cost of living –  school fees, the price of food stuff, petrol and diesel – basic essential commodities, have obviously risen astronomically. And, while I’m not saying all Judges are corrupt, I can say without equivocation that our judicial officers are grossly underpaid, and by virtue of this fact, the Government is creating an enabling environment for judicial corruption. See Section 17 of the Constitution, particularly 17(2)(c), (e) and (3)(b).

 Review of Judiciary Funding and Salary Structure

This is as good a time as any to review the issue of the funding of the Judiciary, and the salary structure of judicial officers holistically. Some have also advocated that the salaries of High court Judges should be categorised in accordance to their years of service; that a Judge of 10 years standing should not be earning the same salary as a newly appointed Judge, that is, the salaries should be staggered into maybe 1-5, 6-10, 11-15 and 16 years and above. In the Civil Service, a person on Grade Level 8 does not earn the same as a Grade Level 14 worker. Likewise, in the Nigeria Police Force and practically every other institution, seniority is not only reflected by rank, but also in salary and allowances. For the Judges, why should it be different? Proponents of this arrangement believe that, it is bizarre that seniority in the Judiciary is only reflected by court numbers and not in terms of salary, as I believe it is done in England on which we base our legal system on.

It is time to increase the remuneration of all judicial officers. Where will the money come from? For starters, a part of the allowances and running costs paid to NASS members can be reduced and diverted to the Judiciary. I saw a headline of a report that BudgIT released, claiming that there are 316 duplicated capital projects in the 2021 budget to the tune of N39.5 billion. All this wastage can be put to better use, like funding the Judiciary and increasing the salaries and allowances of Judicial Officers.

Temptation and LKY

With all due respect to Judicial Officers, especially those who have remained faithful to their Oath of Office, some home truths must be told about the Nigerian Judiciary, no matter how embarrassing; with the hope that Government will immediately address some of the issues, which are the root causes of what many now have come to refer to as the rot in the Nigerian judicial system. Recently, when the Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad CFR (CJN) was swearing in the new Court of Appeal Justices, he advised them not to succumb to temptation. Some people complained that, the CJN should not have made such a statement; but the fact is, he was only speaking the truth, because those who lack financially, are the softest targets for falling prey to temptation. And, even though we certainly expect a high level of morals and integrity from judicial officers, at the end of the day, they are human beings like anybody else (not super humans or saints), who have responsibilities for the upkeep of their families (especially the men who may be the sole breadwinners of their families). I am not in any way trying to justify corruption or bad behaviour in the Judiciary, but, rather, I am trying to draw our attention to the plight of judicial officers, who by virtue of their remit, are unable to voice their complaints since their demeanour is expected to quiet, guarded and of the highest etiquette.

We like to use Lee Kwan Yew (LKY), Lawyer and former Prime Minister of Singapore, and how he turned his country around as an example, but we fail to follow his example – he tried to create a more equitable society in which Civil Servants, the Judiciary etc, were not just paid living wages, but were well paid, so that there would be no reason to envy those in the private sector or who were well-to-do, and no need for corruption. As the economy became more buoyant, even pensions were increased, to reflect the prosperity. Can we say that the same obtains in present-day Nigeria? No. My point? In trying to stamp out corruption, LKY’s Government played it’s own part, and ensured that all workers were adequately remunerated, unlike Nigeria where just a minute fraction, like the National Assembly, are overpaid. On the contrary, the Nigerian middle class which judicial officers formerly belonged to, has been eroded in great part by negative and inequitable Government policies, leaving only the top class, which includes Politicians, a few businessmen and the corrupt, and the bottom class, which the judicial officers and other workers now find themselves belonging to, along with the impecunious.

Retirement

Apart from Lagos and Rivers State who provide accommodation for Judges even after retirement, the same cannot be said to obtain in other States or Federal Courts. What about the Magistrates? Their fate is obviously worse, in all ramifications.

I was shocked when I heard the amount that Supreme Court Justices were given upon retirement, to secure accommodation. Again, let me give a practical example. When the Supreme Court was still situated in Lagos, Justices were given accommodation in Ikoyi, the best residential area in Lagos at the time – detached houses with three or four bedrooms. Then upon retirement, they are given an amount of money which will not buy them a house even in VGC, GRA Ikeja or the Opebi/Allen part of Ikeja, or even a two bedroom flat in Lekki Phase 1 or a house in the better part of Surulere! With their package, they would be aiming for outlandish areas like Ilasamaja, Ipaja and the like. For other Judges, it is ‘to your tent, O Israel’. They are left to look for alternative accommodation to rent in cheap neighbourhoods, due to lack of funds and low pensions. Yet, a Governor who serves for a maximum of eight years, has a fabulous pension including a house in a high brow residential area of his State or maybe even another place of his choice within the country.

While Federal Legislators, at least, are given brand new state of the art cars when a new administration cycle commences every four years, Judges are not necessarily provided with same. Some Supreme Court Justices use their vehicles, for six years or more. In the past, it was not unheard of, for the vehicles to be taken back from the Supreme Court Justices upon retirement. I know of a case in which, upon retirement, the vehicle was repossessed from his Lordship.

Conclusion 

In JUSUN v NJC, AGF & 70 Ors (Supra), the judgement was simply a regurgitation of Sections 81(3)(c) and 121(3)(b) of the Constitution, and does not address or resolve the controversy and inconsistencies created by the foregoing constitutional provisions which I have highlighted above. It is obvious that the provisions of the Constitution leave us with several inconsistent scenarios on the funding of the Judiciary, and it would be unfair to lay all the blame for the lack of judicial autonomy because of the lack of financial independence, solely on the Governors; the inconsistent provisions of the Constitution, are also culpable.

From a community reading of all the above-mentioned provisions, it may be safe to conclude for now, that it is clear that the salaries, remuneration, and allowances of the judicial officers of the superior courts and the JUSUN Staff manning these courts, and all their other recurrent expenditure, should be paid from the Consolidated Revenue Fund of the Federation through the NJC to the heads of the courts. For the lower courts, it is implied that they are the ones who fit into Section 121(3)(b), since they are excluded from Sections 84(4) & 318 of the Constitution, and the State Governments should fund them completely – pay the judicial officers, their JUSUN Staff, all their capital and other recurrent expenditure.

The bottom line is that, it is a foregone conclusion that the Constitution must be amended to achieve clarity and uniformity, as far as including the Magistracy in the constitutional definition of judicial office and officers and the funding of the Judiciary is concerned. In the case of Danstarcher Turnkey Contractors Ltd v UBN Plc (2015) LPELR-24631(CA), the Court of Appeal held that the rule of interpretation of statutory provisions should always be construed as a whole, and should be given an interpretation consistent with the object of the entire statute. Sadly, the  object of the provisions of the Constitution with regard to the Judiciary and its funding, are somewhat hazy. It goes without saying, that there should be an immediate upward review of judicial salaries and allowances today. However, the matter of the centralisation of payments even to Superior State Courts on one hand, and the clamour for restructuring and devolution of powers on the other hand, are at variance – however, this is a story for another day! 

Onikepo Braithwaite