By Tobi Soniyi – Lagos THISDAY Newspaper
The funding of state High Courts, Sharia Courts of Appeal and Customary Courts of Appeal by state governments is unconstitutional, a Senior Advocate of Nigeria, Chief Sebastine Hon, has said.
In a statement obtained by THISDAY on Tuesday, Hon said funding these courts exposed them to undue manipulation and near-asphyxiation by state governors, thereby compromising the rule of law and due process.
He called on state governors to stop funding these courts illegally.
He urged the National Judicial Council (NJC) to collect and collate all capital and recurrent expenditures of these courts from their various heads, make a consolidated budget and present it to the Budget Office for inclusion in the yet to be submitted 2018 federal budget.
He added that by funding the courts, the rule of law and constitutional due process is facing a regressive nosedive in the various states – owing to the ‘winner takes all’ attitude of most state governors.
According to him, by section 6(1) of the 1999 Constitution as amended, judicial powers of the federation are to be exercised by “the courts to which this section relates, being courts established for the federation.”
Quoting the constitution he said: “The phrase ‘to which this section relates’ becomes consummated when we look at subsection (5) of that same section – which has listed the mentioned ‘federal’ courts, including the State High Courts, the Sharia Courts of Appeal and the Customary Courts of Appeal of the various states. This then means that these courts are federal courts, established by the constitution to operate at the state level.”
In support of his argument, Hon said that section 84(1) and (4) of the constitution placed payment of remuneration, salaries and allowances of all judicial officers manning superior courts of record in Nigeria, including the courts listed above, on the doorsteps of the federal government.
“If these courts were mere state courts, the states would have been saddled with the responsibility of paying the salaries and emoluments of the judicial officers manning them,” he argued
Also, section 84(7) of the Constitution provides that “The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in subsection (4) of this section) shall be a charge upon the Consolidated Revenue Fund of the Federation.” The phrase “recurrent expenditure” here carries its ordinary, grammatical meaning – ‘that which happens again and again.’
According to him, this then means that all year-in, year-out expenditure of these courts are a direct responsibility of the Federal Government.
He said: “ There cannot be any other reasonable interpretation of this subsection, which has decidedly used the words ‘of judicial offices’ (not ‘officers’). Clearly, therefore, these federal courts operating as state courts (“judicial offices”) are to have their year-in, year-out expenditure drawn directly from the Consolidated Revenue Fund of the Federation.
“A consideration of other portions of the constitution will further show the unpretentious intentions of its framers that these courts herein discussed are federal courts.
“Paragraph 21(e) of Part I of the 3rd Schedule to the 1999 Constitution has vested powers in the National Judicial Council to ‘collect, control and disburse all moneys, capital and recurrent, for the judiciary.’
“The word ‘judiciary’ here contemplates, in an inescapable fashion, the courts ‘established for the Federation’ in section 6(1) and (5) of the Constitution. It will be absurd to posit that only the Supreme Court, the Court of Appeal, the Federal High Court and the National Industrial Court are contemplated by paragraph 21(e) – since section 6(1) and (5) of the Constitution has listed all the superior courts of record, including the ones here discussed as belonging to one Federal family.”
He said: Compliment the above with paragraph 6 of Part II to the 3rd Schedule to the Constitution, which is silent on the disbursement of capital and recurrent expenditure by the various state Judicial Service Commissions.
“Since, therefore, the courts here discussed are not state courts, state governments have, with respect, no constitutional duty or power to provide for them in their annual budgets. I am again backed by section 81(1) of the Constitution, which mandates the President of Nigeria to lay before the National Assembly in each financial year estimates of the revenues and “expenditure of the Federation” for the next following financial year. The phrase “of the federation” here agrees with the phrase “courts established for the federation” in section 6(1) of the Constitution.”