Journals

“Poor funding has always been a thorny issue that seriously affects the independence of the judiciary. Although there are provisions in the 1999 Constitution that purport to charge the recurrent expenditure of judicial officers on the consolidated revenue fund, experience has shown that these provisions were observed more in the breach than in the observance, particularly in the states. It is often the case that the judiciary is reduced to a complete state of hopelessness when it cannot have the funds to perform its statutory roles.”

Many influential actors have accused the Obasanjo's administration of marginalizing the judiciary. At a meeting of the National Executive Committee of the NBA in November 2003. Justice Ibitola Sotuminu, former Lagos Chief Judge lamented that inadequate funding is a recurring factor that keeps chief judicial officers continually pleading for funds from the executive. Can a judiciary grappling with inadequacy of funds and poor working environment dispense justice efficiently and expeditiously? Not any better than a poorly equipped dentist would extricate a worrisome tooth with an improvised implement, a pair of pliers. Poor funding is at the root of the decay in the judiciary's infrastructure and the slow pace at which the administration of justice grinds.

Persistent complaints about poor funding of the judiciary do not necessarily overlook noticeable increments in budgetary allocations and disbursements to the judiciary these five years. Rather, judicial authorities emphasize that the present level of funding is insufficient to redress the material neglect the judiciary suffered over several years of military rule. Moreover, as Justice Olajide Olatawura, JSC (rtd.) notes, while there have been appreciable increments in budgetary allocations for the judiciary, there is yet to be a corresponding increase in cash disbursements. “The judiciary cannot succeed in the administration of justice without adequate and regular release of funds” he said, at the 2003 All Nigeria Judges Conference. In an interview Hon. Justice Babalakin, former Supreme Court Justice and member of the National Judicial Council granted Access to Justice early 2004, he observed that actual cash disbursements are as insufficient as they are irregular. Only a few months ago, the Federal Government released funds to pay arrears of judges' emoluments. Justice Babalakin remarked that the Obasanjo administration reneged on its earlier assurances to fund the judiciary's capital expenditure. In effect, judicial authorities make the point that cash releases of appropriated moneys under this administration have not been enough to provide or revamp basic court infrastructure and maintain adequate supplies. .

Funding constraints are even more pronounced in the States, where judiciaries rely on their respective State Governments to fund their capital expenditure and supplement recurrent expenditure.. Incidentally, lean State budgets impose serious limitations on what can be done for the judiciary. Under-funding effects are therefore widespread and pronounced, particularly in the lower courts. Justice Babalakin has remarked, and rightly so, that the judiciary cannot fulfill its role efficiently and expeditiously when judges are poorly funded and ill-equipped to dispense justice(Only one or two states are about to introduce electronic recording devices in their courts). What the learned jurist obviously did not mean to overlook is the poor physical and operational state of courtrooms the country, particularly in the states. While courtrooms deteriorate further, more and more judicial officers undergo the trauma of using cramped offices to write judgments after presiding over crammed cause lists in equally stifling courtrooms. If judicial officers must continue to endure such incredible conditions, we may well expect more disheartening reviews of their performance. Judges of course, must assume responsibilities for their individual performance, but we must not overlook the foreseeable effects of poor work conditions on the overall performance of the judiciary. It needs no iteration that an enabling work environment is an incentive to work.

The Obasanjo's government's excuse for reneging on its earlier commitment to funding capital expenditure of states' judiciaries may be hinged on federalism concerns. Federalism advocates may insist that federal and state governments should assume responsibility for funding their respective judiciaries. However politically correct this view may sound, it may not accord with the spirit of the 1999 Constitution, which, in its wisdom, and with the advantage of hindsight has transferred important fiscal responsibilities from the state to the Federal Government. Otherwise, the Federal Government should have no business paying the recurrent expenses and emoluments of state judiciaries and judicial officers.

Understanding how constitutional provisions defining government's fiscal responsibilities for the judiciary have worked in practice may prove interesting. Section 6 of the 1999 Constitution vests the judicial powers of the Federation and of the States in the courts established for the Federation and States under the section.2 Sec. 81(3) and 162 (9) provides for moneys standing to the credit of the judiciary in the Consolidated Revenue fund or Federation Account to be paid directly to the NJC for disbursement to the heads of courts established for the Federation and the States under Section 6. Neither section clarifies whether these moneys are for capital or recurrent expenditures. However, we can deduce from Sec 84(2) & (7) that the remuneration of the judicial officers identified under the section and the recurrent expenditure of the judiciary (Federal or State) will form part of the pool of moneys standing to the credit of the judiciary in the Consolidated Revenue Fund or Federation Account. Hence, while Secs. 84(2) and (7) expressly locate the source of funding for the remuneration of judicial officers and the recurrent expenditures of judiciaries for the Federation and States, and while funding for capital expenditures of federal courts may be safely presumed to be charged to the Consolidated Revenue Fund and disbursable under Section 21(e) of Part of the Third Schedule to the Constitution, the Constitution is not quite as explicit when it comes to locating the source of funds for the capital expenditures of state judiciaries.

We appreciate the point more when we ponder constitutional provisions that underpin the Federal Government's fiscal obligations for capital expenditure in the judiciary. In establishing the authority of the NJC to collect, control and disburse moneys for the judiciary, section 21(e) of Part I of the Third Schedule to the Constitution provides that such moneys shall be for the capital or recurrent requirements of the judiciary. As provided in Secs. 81(3) and 162(9), these moneys shall be paid to the NJC from the Consolidated Revenue Fund or Federation Account. It is conspicuous and perhaps, instructive that the section that empowers NJC to collect, control and disburse moneys for the judiciary does not make a distinction between federal and state judiciaries. Does this mean that the NJC has responsibility to collect and distribute monies not only for recurrent expenditures, but also for the capital expenditure of Federal and State judiciaries? One may be inclined to suppose so, on the face of the provision. In this connection, it is pertinent to note section 121(3) of the Constitution recognizes that a State Government may also make allocations to its judiciary. under the provision, such monies shall be paid out of the Consolidated Revenue Fund of the State directly to the head of the judiciary of the State, who is the Chief Judge. Though it may be implied, the provision does not specify whether the allocations are for the recurrent or capital expenditures of the State's judiciary. Neither can it be said that the section automatically prunes the role of the NJC viz a viz capital allocations, to disburse moneys for the capital expenditures of federal courts alone.

“Judicial independence could be encroached upon by collective and invididual factors, which could be under the following: Structural: This involves the power of governmental bodies outside the judiciary to create and modify judicial institutions. The judiciaries in all of the liberal democracies are vulnerable, in varying degrees to power of legislatures to create, modify and destroy judicial structures as well as to establish and alter the system...”

“Financial sense is knowing that certain men will promise to do certain things, and fail - Ed Howe, Legal Deskbook, DCS Publications 1991