A Senior Advocate of Nigeria (SAN), Sebastine Hon, may soon challenge state governments’ continued funding of High Courts, Sharia Courts of Appeal and Customary Courts of Appeal.
Mr. Hon, who spoke to The NEXT EDITION on the telephone on Tuesday, said the practice is unconstitutional.
He further said the practice exposes the courts to undue manipulation and near-strangulation by governors, while also compromising the rule of law and due process.
However, in a statement he later made available to this newspaper, Mr. Hon cited Section 6(1) of the 1999 Constitution as amended, and argued that judicial powers of the Federation are vested in the “courts established for the Federation.”
According to him, the phrase “to which this section relates,” is completed by Subsection (5) of the same section, which lists the federal courts to include the High Courts, the Sharia Courts of Appeal and the Customary Courts of Appeal of the various states.
Mr. Hon argued the implication is the listed courts belonged to the federal government but were established by the Constitution to operate at the state level.
“To cement this fact, Section 84(1) and (4) of the same Constitution has placed payment of remuneration, salaries and allowances of all judicial officers manning superior courts of record in Nigeria, including the courts hereby discussed, on the doorsteps of the Federal Government,” he said.
“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.”
To support his position, he cited Section 84(7) of the Constitution, which 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.”
He argued that the phrase “recurrent expenditure” carried its ordinary meaning – “that which happens again and again” – meaning, all year round, expenditure of these courts should be a direct responsibility of the Federal Government.
Continuing, he said, “There cannot be any other reasonable interpretation of this subsection, which has decidedly used the words ‘of judicial offices’ and not just “officers.”
“Clearly, therefore, these Federal Courts operating as state courts 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 discussed here 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 Courts and the National Industrial Courts 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 discussed, as belonging to one Federal family.
“Compliment the above with paragraph 6 of Part II of 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, 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.”
Mr. Hon said he decided to bring the constitutional truth up to show the unconstitutionality of state governments ’ funding federal courts and to call for the practice to stop.
He also averred that by allowing states to fund such courts, the rule of law and the constitutional due process has collapsed in the many states due to the ‘winner takes all’ attitude of most of the governors.
Again, with the lean resources available to the state governments, he argued the said courts have not been properly funded, thus compromising the rule of law at the states level.
I, therefore, call on the 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,” Mr. Hon concluded.