Anxiety over Buhari’s health inspired law limiting VP’s tenure — Ogunye
A Lagos-based lawyer and human rights activist, Mr. Jiti Ogunye, speaks to TOBI AWORINDE on the implications of the recent constitutional amendment granting financial autonomy for state legislature and the judiciary
How do you feel about the amendments to the constitution on financial autonomy for state legislature and the judiciary, recently assented to by President Muhammadu Buhari?
It is perhaps a culmination of the agitation that has been on for a long time to ensure that there is financial autonomy for these two arms of government, which, in the view of many, will help them (legislature and judiciary) to effectively discharge their constitutional duties. The constitution, since 1999, has specifically provided that the statutory allocation to the judiciary should be a first-line charge of the consolidated federal revenue of the federation and should be given to the heads of the judiciary of the states and the federation. Under that provision, the National Judicial Council has been receiving money for the federal judiciary in particular. In a particular year, 2005 or 2006, the then Chief Justice of Nigeria, (Justice Mohammed) Uwais-led Supreme Court, after spending the money for the federal judiciary in that year, returned the excess, which was about N6bn to the Ministry of Finance. The CJN received a certificate of commendation by (the then Minister of Finance, Dr. Ngozi) Okonjo-Iweala, who (expressing surprise) said, “You didn’t exhaust the money and you returned it?”
Why has it taken so long to bring this legislation into fruition?
That provision has always been there. The problem we’ve had over the years is that that provision has always been disobeyed at the state level. That is why the Judiciary Staff Union of Nigeria has always gone to court to file action against the state, insisting on what they call the judiciary self-accounting, that the money meant for the judiciary should be given directly to the heads of the courts. That is what the constitution provides, but that provision has been observed only in brief.
With this new amendment, specifically mandating that the money be given to the judiciary and that the judiciary should account for it, I think that struggle to ensure not only that there is financial independence but also operational and adjudicatory independence for the judiciary, it appears that that battle has gained a lot of traction. Therefore, concerning the legislature too, it’s also good to help it. It’s so susceptible to executive manipulation because they receive their funding from the executive. However, this new power should carry along with it new responsibility. These are uncharted territories right now.
With respect to the federal judiciary, where they will be receiving money and disbursing it to the states, this is an uncharted territory. So, when heads of courts, judicial officers, primus inter pares, (that is) the Chief Judge of a state — she/he is just like any other judge; the only thing is that she/he is number one and therefore, she/he is first among equals — is now the person to receive money, on behalf of the judiciary, to award contracts, to float tenders, to ensure that the provision of the fiscal responsibilities and all procurement laws are observed, including the public procurement act, to ensure transparency, accountability and all those things.
What are the implications of this legislation for the state judiciary?
Judicial officers are now going to be discharging executive functions because these are administrative issues. They will collect, receive and disburse money meant for the judiciary. That is the language of the constitution — collect, receive and disburse. When they are going to do that, the question that arises is, can they discharge these functions properly? Won’t that raise the issue of accountability and the issue of possible smear of the temple of justice? Won’t the anti-corruption agencies, like the Independent Corrupt Practices and other related Offences Commission and the Economic and Financial Crimes Commission, be prying on them, looking at the books as they should do, that is, looking at what they (judicial officers) are doing? It is not just about “oh, we now have independence,” because that can be abused. People will now say, “Yes, this is our own money now. We can spend it the way we want.” No, you can’t spend it the way you want. You will have to be accountable, to the judiciary first and then to the Nigerian people.
The same argument goes for the legislature. So, if those who are at the legislature now see that “even the National Assembly is using the power of appropriation to extort from the executive to do ‘constituency projects’, you now start creating phantom constituency projects, you think that you have become an executive on your own. No o! That money is meant, primarily, for your operation so that you can discharge your legislative duty without let or hindrance, without the overbearing posture of the executive, so that you will not be subject to manipulation.
The fear I have is that, as salutary as these new amendments to the constitution are, they are also prone to abuse. So, the duty the Nigerian people, the media, the civil society organisations and anti-corruption agencies have is to say, “Since you have been included in how to be spending money by yourselves, creating your own budgets and awarding contracts, you have to be careful.”
This is for the judiciary in particular, because some of those contracts that you are awarding may also raise the issue of breach of contract, meaning that they will still have to come to the same judiciary for adjudication. So, it’s a power that has to be carefully and conscientiously exercised. It is good but it has responsibility and so, as we often say, power without responsibility, authority without accountability is nothing but anarchy and arbitrariness.
How do you assess the constitution amendment number 21 that has to do with the determination of pre-election matters? Does it solve cases like the death of the winner of the 2015 Kogi governorship election, Abubakar Audu, which led to constitutional conundrums?
When the Audu situation arose, there was the argument that the Electoral Act didn’t anticipate that kind of situation and that there was no specific provision that could be applied to the situation created in which, before the announcement of polls, any of the candidates dies. Thereafter, when the matter went to Supreme Court and there was an interpretation, there had been amendments specifically to address that issue.
I have not read the Amendment 21 to know what it specifically entails, but given the argument that it can last, I think that, generally, it is meant to cater to a situation in which the Electoral Act previously had not provided specifically for emerging situations, which could then generate a situation of political perplexity because you would be wondering, “What are we going to do now?” Such amendments are meant to cater to all that.
Do you agree with the amendment requiring that a vice president or deputy governor, who has succeeded a president or governor, as the case may be, should be allowed to run for no more than one term?
I don’t think so. A greater number of the legislators allowed recently peculiarities to sway their thinking, consideration and votes. For the other legislators, who couldn’t kick against those provisions, I think that they were also blackmailed into silence and I will explain to you why. This amendment is the answer to the (late President Musa) Yar’Adua and (then Vice President Goodluck) Jonathan situation, and the answer to the situation of anxiety that was created when President Muhammadu Buhari took ill.
In hushed tones and in whispers, people were then wondering, “What is going to happen now? Let nothing untoward happen to this President.” So, the mischief they are trying to avert is to say, “If the current president dies and his vice president were to succeed him, that vice president should then not have more than another one term.” That is not necessary. But as I’ve said, what I see is that they are allowing the peculiarities of the situation that the Nigerian people did not entirely create to then impact on fundamental legislation as the constitution.
That was why it was difficult to get Jonathan to ascend the pinnacle of power because, as vice president, many people didn’t like the idea that the “slot of the North” had, by default, been taken by the South, and they then got there and his chief political handler, (former President Olusegun) Obasanjo, was then going round the country telling people that he must succeed Yar’Adua as the substantive president because he had given assurances that he would only do one term. That was what Obasanjo was referring to when Jonathan then said he wanted to do another term.
So, he got there and, if he had won in 2015, he would have become the president for 10 years, including his two years as president when Yar’Adua died, exceeding the eight-year maximum. What these folks are therefore looking at is not the principle of term limit. Rather, it is about the socio-political implications; this whole idea of “it is turn by turn.” So, I would say it is an amendment that is inspired by panic, particularly when the incumbent president took ill again.
They were then looking at the possibility of ‘what is going to happen?” People were saying he should resign because he could no longer function. I think that what they have used to impact on the amendment.