Judiciary can’t be independent without financial autonomy – Agbakoba, SAN
Mr Olisa Agbakoba, SAN, former President of Nigerian Bar Association, NBA, in this interview, called for the independence of the Judiciary, in terms of its yearly appropriation, as against the current case, where the judiciary as the third arm of government, goes to the executive cap in hand begging for money it ordinarily should have, being on the first line charge to the Federation Account.
Excerpts:
NBA Anti-corruption Commission has promised to deal with reported cases of corruption in Bar and the judiciary. What are your expectations from the commission in respect to this task?
There are many people who need to be sent to jail, and I am happy that Festus Keyamo had taken the gauntlet in respect of the case involving Farouk Lawan, because if we all begin to play this role, take it upon ourselves like the late Chief Gani Fewahinmi did, we will get results.
It is now that I appreciate what Gani did, every time anything wrong happened, Gani would go to court. People called him busy body, but I never called him busy body. But if the NBA would, despite the late action on the part of government not to do anything, if the NBA would use this their Anti- Corruption Commission to launch cases, then it will be supported. What I am saying is that it is time for active and aggressive action to turn around Nigeria because we cant keep asking, what can we do for things to change?
If the president could be affected by the Channels Television expose, it shows you what will happen if civil societies, rather than abandon their functions, try more. It is time for Nigerians to say enough is enough.
My next law suit is going to be against state governors, who have failed to hold democratically organised elections at the Local Governments level and my question would be whether the constitution by virtue of section 7 of the 1999 constitution, envisages non democratic governments and whether it is lawful and valid for the Minister of Finance to pay out revenue to non democratic governments, because they are about 19 of them across the country now.
And by the time this type of case begins to go round, it will encourage accountable behaviour, that is what we want to see. We want to see accountable behaviour. If you are a governor, behave yourself, don’t take what is not yours, look at how the governors have come to a point where they have no respect for Nigerians, we have about four or five governors dying and they don’t want to go.
If a man is sick, is it his fault? It is certainly not. You have served your state effectively and loyally for about six or seven years, if you are terminally ill? Resign. But because they know that you and I don’t care, so you can have dying governors actually governing states, enough is enough. The time for us to turn around Nigeria has come.
What do you make of the state of Nigerian federation?
All facets of Nigeria’s life are in comatose and I am happy that finally, the media, in respect of Channels television has now performed its triple function of education, entertainment and information.
The media had been in comatose when it comes to the other aspect of its work, so, the attempt by the television station to expose the failed Police institutions had provoked the most controversial reaction I have seen in Nigeria in recent times.
The President was upset, the police hierarchy was upset, but I think commendation must go to the Inspector- General of Police, for granting permission for the interview to be conducted, because I don’t believe Channels Television would have been able to do that kind of incisive interview without permission. Clearly from the President’s reaction, everybody’s attention is now on the police, everybody has seen that the police are in a deep rot.
What is the lesson in this?
As a lawyer, I will challenge Judicial Correspondents, Newspaper houses to take up this issue about the decay in the judiciary. It is fundamental and I was touched by the interview granted by Justice O. Adekeye (rtd). She said that after 36 years in the service of the judiciary, she can’t look at a house she can go to as her own. This is because she was an honest and patriotic woman.
The judiciary failed to provide housing for people who committed their entire lives to sacrifice for the nation. And she made a very important statement. She said that when we accuse judges of taking bribes, what do you expect when a judge, having served her motherland loyally all through his life have no where to go after retirement?
And that is exactly what compelled me to file a law suit, to get the judiciary to receive its budget directly and not through the executive. The judiciary has been getting less and less vote in the federal budget every year. For instance, this year, the budget is about N65bn whereas the Office of the National Security Adviser will get about N100billion, one man as against the entire third arm of government.
This matter was brought up at the last meeting of National Judicial Council, NJC, when I invited and called upon the Chief Justice of Nigeria, CJN, to lead that crusade.
She has to lead the crusade. It is not enough for Dahiru Danladi, who is the Chief Executive Officer of NJC to go cap in hand begging the executive to release funds, which they do when they like, when the judiciary is by section 81 of the constitution, placed on first line charge.
What does this mean?
The first line charge on the Consolidated Revenue Fund of the federation means that the judiciary is exempted from government intervention, it is not supposed to go to the executive to ask for money. Actually, the constitution recognises three types of independent funding, the President, who is the head of the executive, the President of the National Assembly, who is the head of the legislature and the Chief Justice of Nigeria, CJN through NJC, who is the head of the judiciary.
What is envisaged is that all three heads of government send their appropriations to the National Assembly for harmonization. But what goes on now is that NJC sends its budget to the executive, which on its own, capriciously undermine the budget.
So, the judiciary is not free. The judiciary is not only enslaved, it is chained by the executive.
No single judge in Nigeria can be appointed without the express permission of the governor, that is shocking. The governor has to agree, so at NJC meeting, we are always saying that governor must provide court houses, he must provide cars, if a governor is obliged to do these things and when you want to appoint a judge, the governors’ consent must be sought and obtained, how can these things be?
When the president is appointing his ministers, does he seek the permission of the judiciary? At best, he will seek the confirmation of the National Assembly. So I think this year, the NBA must engage in a comprehensive and aggressive transformational war. I now understand why judges are timid and cannot give judgments.
Why is the situation like that?
It is because they have no money, because their governors can do and undo, their governors can say, you’ll not be the Chief Judge, CJ of the state. We have many states now where there are no CJs because the governors want to hijack the state and the constitutional process has succeeded in giving the governors a very strong hold on the judiciary.
Unfortunately, the administrative posturing of NJC has not helped matters, they have been very timid, I can only point at few people like Justice Idris Auta, Justice Babatunde Adejumo, who have been at the forefront of massive transformation of the judiciary, people like Halilu Danladi, the CEO of NJC have all done their best.
What is the way out?
The way out is for the head of Nigerian judiciary in the person of Justice Aloma Mukhtar to lead the battle. This is a year when the judiciary must declare its independence. If it is not declared, nothing will happen, that is what I have been saying. We must stop this nonsense of a governor providing consent for a judge to be appointed, it has to stop.
When this is done, you will see the level of progress that will be made. No one goes to a doctor and spend nine years to be cured of malaria fever. Nobody has confidence in the judiciary because if you come to me as a lawyer with a simple legal problem, three to five years, I have not finished with the High Courts, let alone the Court of Appeal and Supreme Court, which takes about 10 years in getting justice, how will you build confidence in the judiciary under this kind of situation? The only way to build confidence is to insist that the judiciary must be adequately funded by its budget and the true expression in the constitution is that the judiciary is entitle to first line charge and this must be followed.
The judiciary is not going to beg the executive any further and that is why I have gone to court.
Do you have the locus standi to institute such a matter?
I have the locus as a Senior Advocate of Nigeria, 36 years in law practice, former president of NBA, if nobody will fight this war, I will carry it upon myself. We are going to fight the war and hopefully we will win. Then the judiciary will start getting the appropriate funding, for now, the judiciary is not getting any funding.
You talk of Police Colleges, if the media were to cast their lights into the judiciary, what will come out of it will be appalling. Most judges have no houses, their chambers are broken. When I went to do a case before Justice Olasunbo Goodluck in Abuja, I almost collapsed and I said my Lord, permit me to take off my wig, the court was something like in the 14th century, yet look at the ministers and how they build all the facilities for themselves.
Look at the National Assembly, all the sprawling mansions they have built, how many judges have access to competent secretaries, typists, stenographers and you expect them to deal with rulings and all that and churn out orders? Compare a judge and a minister, if a minister is receiving so much emoluments, I can assure you that the judge is receiving one tenth of what a minister is receiving.
And when a judge begins to get ready for retirement, he would ask himself, where am I going to? I have no where to go and that is what Justice Adekeye said. Every time judges are retiring here, we say the same thing, yet we know the Chief Justices of Nigeria, CJNs, who returned money to the treasury and judges are suffering, how can that be? How can the judges be suffering when the CJNs are returning money? Is it because CJNs get houses built for them? What about the ordinary judges in the Federal High and State High Courts?
So, if we do not deal with this, I am afraid that the judiciary will be unable to perform its function of delivering justice to Nigerians without fear or favour.
(Culled from www.vanguardngr.com as published on 31/01/2013)
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