THE Federal Government yesterday lost its bid to compel the 36 states to ensure financial independence for the judiciary and the legislative arm.
The Supreme Court, in a landmark pronouncement, declared as unlawful and unconstitutional the Executive Order 10 (EO10) issued by President Muhammadu Buhari to force the states to comply with the constitutional provisions on funding of state judiciary and legislature.
The apex court, in a 6-1 split decision, declared that the President exceeded his constitutional powers in issuing the Eo10.
The order was consequently set aside.
Some lawyers are divided on the court’s verdict.
Buhari had signed the order on May 22, 2020 with a view to encouraging the states to release appropriated funds to the two arms of government.
Among other provisions, the voided order empowered the Accountant General of the Federation to deduct from the allocations due to a state from the Federation Account, any sums appropriated for the legislature or judiciary which the state fails to release to the two organs.
Such deductions would then be paid directly to the affected arm of government.
Yesterday’s majority decision of the Supreme Court adopted the expert opinions supplied by Musibau Adetunbi (SAN) and Mahmud Magaji (SAN), two out of the five amici curiae (friends of the court) invited by the court to advise it on the case.
The judgment, which was in respect of suit SC/CV/655/2020 filed by the 36 state governments against the Federal Government, decided two key issues: the constitutionality of the EO10 and the funding of superior courts in states by the Federal Government.
Justice Musa Dattijo Muhammad, in the lead majority judgment, said: “This country is still a federation and the 1999 Constitution it operates is a federal one. The constitution provides a clear delineation of powers between the state and the Federal Government.
“The President has overstepped the limit of his constitutional powers by issuing the Executive Order 10. The country is run on the basis of the rule of law.”
Justices Centus Nweze, Ejembi Eko, Helen Ogunwumiju, Emmanuel Agim and Adamu Jauro aligned with his view.
But Justice Uwani Abba-Aji, in her dissenting ruling on the issue, held that EO10 was lawful and constitutional.
Her words: “We are not unaware of the hanky-panky and subterfuge played by state governors against the independence and financial autonomy of state Judiciary.
“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.
“Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions…the Executive Order is to aid the states legislature and judiciary in curing the constitutional wrong of their financial autonomy, which the state have always denied. This is not unconstitutional.”
On the second issue, four members of the panel rejected the plaintiffs’ contention that it was the responsibility of the Federal Government to fund both the capital and recurrent expenditures of the superior courts created for states under Section 6 of the Constitution.
On this issue, Justices Nweze, Ogunwumiju and Abba-Aji agreed with Justice Muhammad’s lead majority judgment.
Three members of the panel – Justices Ejembi Eko, Emmanuel Agim and Adamu Jaro – gave a dissenting opinion, saying it was the Federal Government’s responsibility to fund both the capital and recurrent expenditures of all courts created under Section 6 of the Constitution.
Justice Eko, who authored the lead minority decision, said the money standing to the credit of the Judiciary on the Federation Account and Consolidated Revenue Fund Account should be applied to fund both the capital and recurrent expenditures of courts created under Section 6 of the Constitution.
However, all seven Justices unanimously rejected the request by the plaintiffs that the Federal Government be compelled to refund to them all that they have spent on the said courts in their states.
The court held that the states were not entitled to be refunded all they have spent before now to maintain those courts, which they put at N66 billion.
The apex court said the plaintiffs failed to prove their entitlement to the refund they claimed.
Justices Muhammad and Eko were absent at the proceeding. Justice Muhammad’s judgment was read by Justice Nweze, while Justice Agim read Justice Eko’s judgment.
Read Also: Autonomy: Why governors are yet to comply with Executive Order 10
Ruling divides lawyers
Legal practitioners are divided over the Supreme Court’s verdict.
Former Second Vice Chairman of the Nigeria Bar Association, Mr. Monday Onyekachi, expressed shock at the decision, saying: “What it means is that the autonomy that the President himself was decreeing is no longer in a manner that all of us understand.
“I am really surprised that the Supreme Court said so because I have defended that Order 10 several times. But I am sure they must have done it with regards to the provisions of the constitution.
“If the federal government is not allowed to interfere with the judiciary at the state level, it then means that particular order will not be appropriate because it is more or less like imposing an order on a state when the President himself does not have the vires (the power).
“I am sure they must have looked at the provisions of the constitution vis-à-vis the powers of the federal government with respect to funding of the judicial system. So you cannot impose such a thing on them. That is what they are saying.
“I need to understand the full import of that judgment, but it’s something that I was a bit shocked to learn that that particular order was invalidated by the Supreme Court. We need to really understand the import of that decision. It is very important.
Senior Advocate of Nigeria, Chief Niyi Akintola, described the judgment as a welcome and pragmatic decision.
His words: “Executive orders should not take the place of legislation. Section 4 of the constitution vests the power to make laws in the National Assembly and the state assemblies. They should be allowed to do their job.
“As a matter of fact, they ought to have challenged it in the state and the national assembles but they didn’t do anything.
“We thank the Supreme Court for rising up to the occasion to ensure that everybody keeps to his or her lane. Allowing the executive to make rules and laws is an invitation to dictatorship.”
The annulled Executive Order was designed to give teeth to the 2017 alteration to the Constitution by the 8th National Assembly.
Following agitation by state legislators, state judicial workers and other stakeholders for financial independence for the judiciary and the legislature in the states, Buhari in March 2019 set up a Presidential Implementation Committee on State Legislature and Judiciary to ensure that funds appropriated to the two arms of government were directly paid to them.
But the governors were not impressed with what they saw as an attempt by the federal government to interfere in the independence of the states.
They decided to go to court with several of them publicly kicking against the order.
Governor Aminu Tambuwal of Sokoto State, in a public lecture in Ado Ekiti in May 2021, said Executive Order No.10 was unnecessary because the constitution has already taken care of the independence of the judiciary and the legislative arm, saying “any governor who refuses or neglects to enforce these provisions would be in clear violation of his oath of office.”
He listed the governors’ complaints against the order as: empowerment of the Accountant General of the Federation to deduct money without having recourse to court; prescription of what allocation should fall under a First Line Charge; dictation to a state how it should organise its governance and its processes, legislative and otherwise; prescription of the establishment of a State Judiciary Budget Committee; and, usurpation, by the President, of the directive addressed to the House of Assembly of a State by Section 5 of the Constitution.
The rest are: unlawful interference in the governance of states by the presidential directive to make special extraordinary capital allocations for the Judiciary; payment of recurrent expenditure, including the salaries of Judges and Khadis, by the Federal Government; stifling of States seeking the means of implementing S. 121(3); and that the Executive Order did not take into cognizance the fact that the fiscal environment at the Federal level is different from what obtains at the State level, much as it also gives little attention to the question of legacy loans inherited from preceding administrations and ways to manage this.