Judges’ salary package and matters arising – Dr.Muiz Banire SAN, OON

Few days ago, during the commissioning of the new campus of the Nigerian Law School in Port Harcourt, Rivers State, the Attorney General of the Federation, representing the President and Commander-in-Chief of the Federation, Muhammadu Buhari, disclosed the approval of a new salary package for judges by the President. On the strength of this, there was euphoria in some quarters of the judicial circle and even the legal community that at last, action has been taken on this vexed issue. It will be recalled that this issue has been festering for some time and, in fact, in recent times, dominated discourse in judicial circles.

The last time the salaries and other emoluments of the judges were reviewed was in the year 2008 through the enactment of the Certain Political, Public and Judicial Office Holders (Salaries and Allowances, Etc.) (Amendment) Act. Since that time and up till date, notwithstanding the inflation in the country and the devaluation of the country’s currency, the renumerations of the judicial office holders have remained static. Several interventions through litigation and otherwise have been made, particularly through the agitation for the enthronement of financial autonomy for the judiciary but all to no avail. Apart from the successful litigation in this regard, prominently by Chief Olisa Agbakoba, SAN, and the Judicial Staff Union of Nigeria; the reluctance of the executive to actualize the financial autonomy constitutionally conferred on the institution has triggered several industrial actions, the last of which took some months.

Despite all these, the situation has not really improved as the judiciary, as an institution, is still largely tied to the apron of the other two arms, the legislature and the executive. The judiciary is still regarded as an appendage of the executive and must always go cap in hand for its needs to the executive. This is more pronounced in the States to the extent that, by and large, the citizens have been made to progressively lose confidence in the States’ judiciary, particularly in actions involving the States. Due to this castration of the judiciary, particularly the welfare of the judicial officers, the judicial office holders are left largely in the cold and susceptible to the temptation of compromise.

To the executive, it is a potent weapon, apart from the overbearing influence in the appointment and elevation of judicial office holders, of reining in judicial office holders as at when required and necessary. I have had cause to interrogate this subject of judges’ salaries and other emoluments in several presentations but all to no avail. Therefore, it would have been refreshing to hear the Attorney General informing us of the approval of the new salary packages for the judicial office holders but for the fact that some of us know better that the issues surrounding the subject matter do not lend themselves to such cheap propaganda. I am sure that some judicial office holders are sold to the pronouncement and are already excited by the supposed good news. To this class of our judicial office holders, I sympathize and say that, unfortunately, all is not uhuru yet.

Short of aptly describing the pronouncement of the President as a political gimmick or statement, I see no value in it. To start with, what packages have been approved? This is still in the realm of conjecture. No member of the public, as stakeholders, nor the judicial officers themselves are aware of the content of the supposed salary package. The Yoruba proverb is a kii fari ni eyin olori. You don’t shave a person’s head behind him. While it is conceded that the President has the capacity to initiate such process by way of recommendations to the Revenue Mobilization and Fiscal Allocation Commission (RMAFC), the proper thing however is for consultation to have been made with the stakeholders in arriving at an acceptable baseline of review prior to any submission.

Now, as things stand, this is far from reality as I know whatever must have been approved for the attention of the Commission is the exclusive handwork of the president, or at best, the executive. Even if that sails through, it certainly will still remain unsatisfactory. It shows the master status the executive considers itself to occupy in relationship with the judiciary which is irresponsible as far as responsible governance is concerned. I know that some recommendations were made by a ministerial committee some few years ago, they are clearly unsatisfactory in my personal opinion. During my sojourn in the National Judicial Council, I had cause to work on the review of the judicial office holders’ salaries and did stumble on the said recommendation. It is certainly far from being satisfactory.

Beyond that, I know that any recommendation not based on empirical studies, particularly jurisdiction comparison and indexed to the inflationary trend and the country’s currency devaluation trend can never stand the test of time. As at that time, during my stay in the Judicial Council, just as being currently done by the Body of Benchers, I did strongly recommend the conduct of necessary studies, up to the extent that I submitted a proposal to that effect and the scope of study. Unfortunately, I completed my tenure before the conclusion of the committee’s assignment and which probably eclipsed the end of the committee’s assignment.

The Chairman of the Body of Benchers had, in several fora, informed stakeholders of the ongoing effort on the study and the promise of Mr President to await the report for the purpose of integration into the final recommendation by the presidency. What then has changed that the President cannot wait for the outcome of the study which I am aware is not ready? Without such a report, whatever be the recommendation, with respect, will be shallow. We certainly do not need any fire brigade approach to the treatment and resolution of this issue. I honestly believe that a recommendation without these inputs cannot be progressive. Again, the good news is that the recommendation is still to the Commission as the President lacks the power to unilaterally alter the renumeration package of judicial office holders.

To this end, I expect and pray that the Commission exercises wisdom in inviting all the critical stakeholders in the consideration and determination of the appropriate renumeration package for the country’s judicial office holders. Just recently, an industrial court, in a suit at the instance of a legal practitioner and a member of the inner bar, S.T. Hon, obtained a judgment with judicially approved salary package for judicial office holders. While not advocating the adoption of the conclusions in the judgment, I believe that the same is worth considering by the Commission in its evaluation role. It is instructive to also remind us that the journey towards the review of the judicial office holders’ salary package does not end with the Commission as there is a major legislative hurdle that must be crossed. The main obstacle since 2008 to the review has been the extant legislation on the renumeration of the judicial office holders cited above.

This is the major impediment to the review so far. That explains why the salaries of other non-judicial staff have been reviewed thrice by the Salaries and Wages Commission while that of judicial office holders is impossible. Without the repeal or amendment of this Act, there is virtually nothing that can be done. The alternative is to seek the nullification of the Act in court as obviously the Act subordinates the emoluments of the judicial office holders to a disadvantage and therefore a contravention of Section 84(3) of the Constitution as altered. Either of this event must happen in order to pave way for the overdue review of the judicial office holders’ salaries and emoluments. Where the legislative option is adopted, then there must be a new legislation or the amendment of the extant Act to reflect the contemporary realities as finally adjudged by the Commission.

The alternative, to clear the way permanently, is to radically and fundamentally do away with the legislative intervention in the fixing of judicial office holders’ salaries and allowances. I suspect that the essence of the legislation in the first instance might be to insulate judicial office holders, alongside certain other political office holders, from political interference in fixing their renumeration.

The wisdom in this has, however, become a debacle. While I cannot categorically wish away the need for such insulation, I doubt if that objective can ever be realized through that means as the initiators as well as members of the Commission and the legislature are largely politicians. The essence is, therefore, ab initio defeated. Can we, therefore, devise another means?.

In my view, I will prefer the repeal or the nullification option so that future reviews can be done as and when due without any legislative impediment. Except there is a new mechanism, what presently obtains guarantees no immunity against political interference. The question for consideration will now be whether we must allow the president and, by extension, the executive to be involved in the process, or the legislature to take charge by way of legislation, the fixing and determination of judicial office holders’ salaries and allowances? I honestly believe that we must save the judicial office holders from the jaws of the executive, if we still desire to instill confidence in the institution.

On this, we must be proactive. This discourse is not to dampen the interest of the expectant judges nor condemn the presidential pronouncement but to alert us that the struggle is still on. Thus, so many steps are still outstanding to realize the goal of reviewing the salaries and allowances of judicial office holders. A rush of the process is not in the judicial officers’ interest as the waiting time to get a robust review is far less than the wait that had occurred.

Stampede never gives birth to any meaningful result. We must not lend ourselves to the sweet talk of politicians, more so that the elections are round the corner and politicians, with the impression that the courts can install candidates, will do anything to court the fancy of the judiciary. It is bad enough, as observed by the immediate past President of the Nigerian Bar Association, that politicians now want to own their own judges, either by way of appointment or elevation. This current effort must, therefore, amongst others, be targeted at insulating the judiciary from the politicians in the National Assembly and the Executive.

Without an independent and impartial judiciary, democracy, or civil rule, as we have it, is at risk. The institution cannot continue to be financially dependent on the executive or legislature for its needs. Each time I watch our pleas to the politicians in the National Assembly and in the executive to see to the plight of judicial officers, my heart bleeds as this MUST not be it. The implications of subjecting Their Lordships to excruciating economic hardships has been captured in my past write ups such as the lecture I delivered at the legal year of the Ogun State Judiciary last year and some other interventions ((See my columns in the Daily Sun of 13th August 2020 “Please save our judges.