State judiciary and legislature autonomy: Beware of banana peels

 

On this column on February 10, 2021, I wrote a piece titled, “Governors’ opposition to autonomy of state institutions.” In that article, I traced the history of the agitation of federal and state legislators for financial autonomy from the executive and the stiff opposition of the state governors to the bid.  I had previously weighed in on the same issue on May 27, 2020 in this column. The battle for financial autonomy of state Houses of Assembly dates back to the beginning of this Fourth Republic in 1999. State governors were believed to have mounted pressure on their state Assemblies to reject financial autonomy moves each time such an attempt was made by the National Assembly. In the lead-up to the 2010 constitution amendment, while the National Assembly passed the amendment bill to grant financial autonomy for the state Houses of Assembly, when the bill was referred to the state Houses of Assembly for concurrence, only 23 of the 36 assemblies passed the bill when a minimum of 24 states is needed to make the mandatory two-thirds required to make the alterations successful.

Recall that the attempt to amend the constitution ahead of 2015 was not successful due to about 12 grey areas in the procedures and contents of the amendment which made President Goodluck Jonathan to withhold assent. Luck however shined on the state Houses of Assembly when the eighth National Assembly made a fresh attempt in 2016. The particulars of the financial autonomy of state legislatures  and judiciary are in Section 121 (3) of the Constitution of the Federal Republic of Nigeria, 1999 thus: A. “Section 121 of the Principal Act is altered by substituting for subsection (3), a new subsection – “Any amount standing to the credit of the – House of Assembly of a State and the Judiciary of a State; in the consolidated Revenue Fund of the State shall be paid directly to the said bodies and in the case of the judiciary such amount shall be paid to the heads of the courts concerned”.

The thought then was that state assemblies and judiciary would start to enjoy their hard-earned autonomy. However, that was not to be as the President on Friday, March 22, 2019 inaugurated the Presidential Implementation Committee on Autonomy of the State Legislature and State Judiciary. The committee was meant to sit for three months but obviously took its time as it was over one year since it was inaugurated before the Executive Order 10 was published on Friday, May 22, 2020.

Well, the good news is that states are now to enjoy their constitutionally backed financial autonomy from next month, May 2021. This was made public on Monday, April 19, 2021 by the Ekiti State governor who also doubles as chairman of Nigeria Governors Forum, Dr. Kayode Fayemi, after a marathon meeting with the Chief of Staff to the President, Prof Ibrahim Gambari,

Although the details of the implementation framework have yet to be made open, this victory for the state assembly and judiciary did not come on a silver platter. It was fought for three years. In fact, as I write this piece, members of the Parliamentary Staff Association of Nigeria as well as the Judicial Staff Union of Nigeria are still on strike to press home the implementation of the financial autonomy law. Not only that, according to the acting Head of Department of History, Obafemi Awolowo University, Dr. Adetunji Ogunyemi, there have also been two court judgements compelling the governors to implement the financial autonomy law. The first was the Judiciary Staff Union of Nigeria v. National Judicial Council & Governors of the 36 States (Suit NO. FHC/ABJ/CS/667/13). The second one was Olisa Agbakoba v Attorney General of the Federation & 2 Others.

I have been involved in the capacity building of federal and state lawmakers for some time now. I have trained some members of the Young Parliamentarian Forum of the Eighth National Assembly under the auspices of Westminster Foundation for Democracy. More recently, I was among the team of experts brought together by Konrad-Adenauer-Stiftung in partnership with the National Institute for Legislative and Democratic Studies to build the capacity of the state lawmakers and bureaucracy ahead of the implementation of the state financial autonomy law.

Part of what the training advised the state lawmakers to do is the urgent need to have a costed Legislative Agenda, State Fund Management Law as well as State Assembly Service Commission. They have also been trained on different budgeting models as well as budget tracking, among others.

All is well that ends well and as we look forward to the May 2021 implementation kick-off date, I need to sound a note of warning to the state lawmakers and judges on the likely implications of this financial autonomy on their institutions.  Ogunyemi while making his presentation titled, “Financial Regulations in Nigeria: A Guide to Legislators in Preparation for Financial Autonomy”, advised state lawmakers on key laws and regulations to watch out for

Some of the constitutional provisions are:  Section 120 (4) which states that “No money shall be withdrawn from the CRF or any other public funds of the State except in the manner prescribed by the House of Assembly; Section 121(3) which states that “Any amount standing to the credit of House of Assembly shall be paid directly to the head of the body”;  Section 125 (2) which states that,  “The public account of a State and of all offices and courts of the State shall be audited by the Auditor-General for the state who shall submit his reports to the House of Assembly of the state concerned, and for that purpose the Auditor-General or any person authorised by him in that behalf shall have access to all the books, records, returns and other documents relating to those accounts.”

Others are: Section 125 (6) which says, “In the exercise of his functions under this constitution, the Auditor-General for the State shall not be subject to the direction or control of any other authority or person; Section 109(1)(e) which says, “A member of a House of Assembly shall vacate his seat in the House if – save as otherwise prescribed by this constitution, he becomes a member of a commission or other body established by this constitution or by any other law”; Section 209 which says, “A person in the public service of a state shall observe and conform to the Code of Conduct.”

The Fifth Schedule Part I, CFRN, 1999 (as altered) has 14 clearly formulated codes of behaviour which are expected to be strictly adhered  with by all public officials including the lawmakers. Attention should be paid to Paragraphs 6(1) (prohibition of gifts or benefits in kind). It says, “A public officer shall not ask for or accept property or benefits of any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties.”

Paragraph 6(3) which says “A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom, provided that any gift or donation to a public officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the officer, and accordingly, the mere acceptance or receipt of any such gift shall not be treated as a contravention of this provision. Also, Paragraph 13 which says, “A public officer who does any act prohibited by this Code through a nominee, trustee, or agent shall be deemed ipso facto to have committed a breach of this Code.” It is not surprising that this particular constitutional provisions generated a lot of furore during the training.

Ogunyemi equally listed a number of statutes or Acts that state lawmakers need to be mindful of. These include: Audit Act, 1956; Finance (Control and Management) Act, 1958 (now CAP F26, Laws of the Federation of Nigeria, 2004); Code of Conduct Bureau and Tribunal Act, 1990 (now CAP C15, Laws of the Federation of Nigeria, 2004); The Corrupt Practices and Other Related Offences Commission Act, 2000 (now CAP C31, Laws of the Federation of Nigeria, 2004); Economic and Financial Crime Commission Act, (2004: Act No. 1); Fiscal Responsibility Act, 2007 and the Public Procurement Act, 2007.

Others include, the Money Laundering Act, 1995 (now CAP M18, Laws of the Federation of Nigeria, 2004); Criminal Code Act, 1916 (now CAP C38 Laws of the Federation of Nigeria, 2004); Nigeria Financial Intelligence Unit (established June 2004, pursuant to the EFCC Act, 2004 and the Financial Action Task Force (FATF) Protocol of 2003); the Public Complaints Commission Act, 1975 (CAP 377, Laws of the Federation of Nigeria, 1990); and lastly, the  Whistle-blowing Policy, Federal Ministry of Finance, 2016.

As the saying goes, ignorance of the law is not an excuse. A Yoruba adage says, “half a word is spoken to a responsible child, when it enters him, it becomes whole.”