A former Minority Leader in the House of Representatives, Dr Wunmi Bewaji in this interview with Tobi Adetunji speaks on the Judiciary Staff Union of Nigeria (JUSUN) strike, decentralization of power, among other issues in this exclusive interview.
What does Judicial financial autonomy presuppose?
The strict definition of judicial autonomy is an idea that is derived from the doctrine of the separation of powers, and further. The independence of the Judiciary is critical to any democratic society.
Taking it further, it’s derived from the need to curb arbitrary powers, especially of the King. So when we talk about Judicial autonomy, It’s a way of affecting the independence of the judiciary such that it will not be an appendage of the executive arm of government.
Yes, the Judiciary must be independent, but at the same time, it is still an arm of the same government is where we need to be very careful about it because an arm is part and parcel of the body.
As we do put in the lain, we “equal and separate,” but it is the part and parcel of the system.
However, by accident of history, the executive branch has always been the accounting officer for other arms of government, which is the practice all over the world.
For example, during the military era, we do not have the legislative arm, but we have always had the executive arm and the judicial arm.
So people making a lot of noise today did nothing during the military era to enhance the independence of the judiciary or even the autonomy during the military era.
It is a good thing that we now talking about independence, not just the independence of the Judiciary but of the autonomy of the judiciary.
The financial aspect of the autonomy prevents the judiciary from “going hand in cap” to the executive which can make them susceptible to compromise.
Because if the financial need is always placing the judiciary at the mercy of the executive Governor in terms of spending, then the Judiciary may get compromised.
Although at the same time we also need to be careful, in the sense that, that autonomy will be within the confine of the law, and also respect the principles of Federalism that we have accepted under our constitution.
That is why when we talk about the so-called executive order, the idea inside the executive order are fantastic, but you cannot achieve a legal means by an illegal method. That is the only issue with executive order 10, because at the end of the day, the revenue of the particular state is to be administered for the purpose of the entire state. And when people talk about Budget, there is nothing like a budget in the constitution. What you have in the constitution is estimates.
An estimate presupposes that, at the time that the documents is presented, both the revenue part and the expenditures part, are not yet ascertained. For instance, if Government thinks, this year our revenue is going to be N50million, based on that this is our expenditure. If the forecast revenue plummets, it means the government has to borrow if it has the credibility to do that or will have to adjust, and that is why most of the time, it’s always difficult to have 100 percentage capital project execution.
That is why it’s difficult for any arm of government to claim any money given to it right away. Because at the end of each month, you see what comes in.
What the constitution says, is that the money due to the legislature and judiciary shall be pay directly to the Judicial council. It does not create a first-line charge, those who are now reading into it a first-line charge interpretation is falsehood. The constitution says it shall be paid directly to the head of the court or the head of the legislature. So there is a difference between saying money due to me shall be paid to me, and money due to me shall enjoy the first-line charge.
So, I don’t think the governors are against that provision in section 123 of the constitution, but for anybody to now misinterpret that to be a first-line charge, I think is unfortunate and erroneous.
The fact also that the executive order is empowering the Attorney-General and the Auditor-General to impound that money is an act of executive lawlessness. So constitutionally is null and void and of no effect whatsoever.
Courts across the country currently under lock for over a month. What’s the implication on our fragile democracy, economic, security architecture?
It’s quite damaging, and at the end of the day, this will hurt JUSUN as a body than anybody. In recent times, there has been this attitude of people to probably move away from the court system because a lot of people are embracing Alternative Dispute Resolution,(ADR).
It because of what the Nigeria Court system is no longer serving the interest of Justice that is designed to serve. Even without the strike, the courts are so congested. So when that happens, you need a level of confidence in the system.
Even without a strike, you take a matter to the court, for instance, a young lady wants it get a divorce and we are spending 4 years to get a divorce. In the end, it’s making people to now think of alternatives.
So at the end of the day, the Judiciary itself will take the heat. For whatever is happening, is it not for the benefit of the judiciary?
Like you rightly observed, apart from lawyers there are also people who earn their livelihood with respect to activities around court.
Look at the prison system and the number of people been held in the police station and all over the place. Even when the court was working on a daily basis, it could not cope with the cases, and cells made for 400 people, we have like 3000 people in them.
It very sad, let me tell you, immediately this strike started, I told my colleagues that the strike appears that those who decided on that strike are not well informed.
The strike is meant to embarrass the government. Under the trade dispute law, the strike is a means of embarrassing your employer. So what is the opportunity of embarrassment in a strike that is nationwide? Zero.
For instance, if there is a strike in all the 36 states, and I am the governor of Lagos State and you have come to me, I easily refer to you to Abuja and say it’s a national problem. There are negotiating in Abuja, when they are done, they will let us know.
But can you compare that to what happened in Kaduna just for days ago? The effectiveness of the strike was because it was only Kaduna state, if it were to be nationwide, it was targeted and embarrassing to the Governor of Kaduna state when all the neighboring states are functioning and it’s only your own state that is grounded.
So, the victim of this JUSUN strike is the common man. What that means is that a common man who was arrested for wandering or anything will languish in prison. Like I told someone about a week ago, if the son of someone who is rich is arrested even for a serious offense, they may still find their way out around it.
But for a common man, he has to wait till JUSUN resumes. So when this happened, the question I asked people is, whenever you are embarking on this kind of thing always think if you are to be on the wrong side of it, what will happen? So let’s us not be our own enemy. So that when we are fighting a good course, we will not lose out.
Because the high and mighty as you can see, it does not affect them in any way and I can confirm that to you. It is the common man that bears the brunt of whatever is happening now. And that is why JUSUN needs to have a rethink.
How do you think JUSUN as a body, the state government can evolve a common ground?
Like I said earlier, this is the first time that we are going to advance the independence of the judiciary to the realm of financial autonomy.
So both the Governors and JUSUN are new to this. And because they are new to this, care must be taken. Let me emphasize that some parts of executive order 10 depict lawlessness, is non-void, and of no effect whatsoever.
However, if we can now have a state law that pronounces how the money meant for the judiciary will be paid to the head of the court and head of the legislature. What is the legal architecture for those payments, and now what should be worked out? I think at the end of the day, it is going to require cooperation and a lot of negotiation and eventually compromise.
Especially on the part of JUSUN, don’t forget in the end, even under the Executives order 10, there will always be appropriation and that will be done by the legislative arm. Let us be practical and wise.
If the governors do not agree, so you have drafted a budget or estimate you still have the parliament to present it and the parliament will have to look at it, because that is the only body under the constitution saddled with the responsibility to appropriate.
What’s your view on Cryptocurrency?
My attitude towards financial instruments has always been, that the concept of money is evolving. So also the regulators worldwide must move with the time. But when will talk about cryptocurrency, we need to be careful in the sense that you know there is a way that money is regulated.
Money by definition is issued in the name of the sovereign. For instance, when you have a pound sterling or American dollars, what was written on it is that the Queen or the King has promised to pay this amount.
That is why we call it legal tender and it’s a supreme guarantee, which other forms of digital money may not enjoy.
There is an attitude now, in the developed world, that if you call it money, or it looks like money, then it must be subjected to the same control that money is subjected to. For example, we control the volume of money and its printing because it can have an adverse effect on the rate of inflation, we control the instrument of money because of the storage of money.
Because when you talk about money laundering, you must also look into how it affects the peace and stability of the country. Things like illicit financial flow or terror financing. With that must also be able to ascertain that a certain amount of money has moved from here to there. For instance, if you transfer N10million today, the national financial intelligence unit will know, and banks will also have regulators to it.
Then they will, be looking at what is going on, is this person purchasing a property? See how illicit financial flow, terror financing, will be connected and that is why, when you talk about a federal reserve — a Federal Reserve Bank, will use all the tools in their kit to play the role of an arbitrator between all the market participants.
Cryptocurrency will be a kind of currency operating outside of the system. How does the government address something operating outside the system- that is the danger in it.
I’m not saying we should disregard it, but it has to be subject to the same control that regular money is been subjected to, otherwise the danger will be borne in years to come will be catastrophic on the economy. Of course, it can be used to finance Boko Haram.
You recall, when I spoke about the supreme guarantee, it’s plays a practical role in the use of regular money. So, what I believe should be done, and it’s being looked into in Europe and also the United States of America is a system whereby the CBN steps in and then regulates.
There is a theoretical conception of financial instruments that guide regulation such that, if an activity is out of control it drives that activity underground. But it will continue to exist. So scholars have discovered, that the best way to tackle that kind of problem is to regulate. When you regulate, people operating in the dark will be encouraged to come out, get registered. Let us document what you have.
No sensible system will allow the anonymous transaction, and untraceable set of people to run the economy it will be irresponsible for any government to do such, not even the American government will allow it.
What will be your advice to the Judiciary and the various ethnic groups agitating for a state or secession?
For the Judiciary, it has been corrupted and this is partly because of the constitution foisted on us by the military system. I look forward to a time when the Judiciary will be decentralized.
The Judiciary as it is now can no longer serve the needs of modern Nigerians. So we need to decentralize the Judiciary. This will require total restructuring of the Judiciary in line of restructuring the entire country may be.
Even if the entire country is not restructured, the Judiciary needs to be restructured, each region should have its own Court of Appeals.
Each region should have its own Supreme Court, and the central court should be the court of arbitration for the regions of the country.
Which must be composed of the heads of the Supreme Court of each region that we don’t have to spend extra money.
For example, the workload of this current court of Appeal even if stopped today from accepting cases, they still find it difficult to finish the work in another 20 years.
So a situation where two people engaged in a duel in a local government and you have to go to Supreme Court in Abuja doesn’t make any sense.
Eventually, now, the Judiciary had bitten, more than it can chew. So we now have the Supreme Court that is too overworked. Even if you have 100 Justices of the Supreme Court, it will still not address the challenge. So we have to decentralize the court.
So when it comes to the issue of agitation, this is what you get when you don’t have a listening government. That has no respect for the electorate, eventually, that government will become more and more isolated from the people and even from reality.
So what you have today everyone will be marginalized. They don’t feel part of the system and the perception the President is giving that he is not the President of the Federal Republic of Nigeria is only President to some sects of people or religion and that has made people lose faith in The Federal Republic of Nigeria.
The word federal is loaded, we are talking about the centrifugal of an equal unit in the system making the system. Without those units, the center cannot hold.
The Constitution says there shall be a federation, of the Federal Republic of Nigeria, to be made up of 36 states so without those components that there is no center.
But in our case, the center has so much power, so much money so much more that this components unit can not survive without that over-bloated center. Where the center is taking more than half of the revenue of the country, and the thirty-six states have to share some twenty-three percent. it’s doesn’t make any sense.
And in the end, people became disenchanted, that is the reason we have these calls for self-determination. Which by the way, is legitimate.
Because when you talk about democracy, we must realize that the right of the people to have a say in their government. On how they are governed, by whom they are governed.
This means if people don’t have faith in the existing structure, they have the right to say, we don’t want this structure and we desire another one.
But unfortunately, the INEC chairmen we have had in this country have been fixated on just the idea of election only been conducted for offices and not for the doctrine of citizen consultation partly because of their ignorance.
The idea of the doctrine of citizen consultation presupposes that the Electoral umpire asks people to decide on major issues, for instance, should we legalize marijuana? even this autonomy we are talking about. It can be put on the ballot.
Should a certain amount of money be given to these people? then decision be made through the result of the election. That is how citizen consultation will help the ruler to gauge public opinion on issues of fundamental importance and that is the meaning of democracy.
But here in Nigeria, we have restricted democracy to election every four years to elect the next set of billionaires which should not be.
So citizen consultation is the core of democracy and we have to embrace it. It is not enough for somebody to ask me, do you support the independence movement? Every Nigerian deserves such privilege to been asked such a question.
Because you see one Governor from the western Nigerian saying those people are not speaking for us, then just a week ago he was asking the federal government to convoke a constitution at a conference.
What has happened in the last two and half months that had made him to change his mind? It’s the arrogance of power that will make somebody think those people are wrong, and I’m right.
I say this to you, the political elites in this country as represented by the Governors and other political officeholders, have become so isolated from the people and the reality that they don’t even know the preponderance of the opinion on the street.