Executive Order 10: What next for judiciary?

With the judgment of the Supreme Court on Friday that nullified Executive Order 10 signed in 2020 by President Muhammadu Buhari, the fate of the Nigerian judiciary appears to remain in the balance.

What happens to the implementation of the provision of Section 121(3) of the Nigerian Constitution 1999? The section reads: “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned.”

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Following the originating summons by the 36 state governments, the Supreme Court, in a split decision of six to one, held that the president overstepped the limits of his constitutional powers by issuing Executive Order 10.

“This country is still a federation and the 1999 Constitution it operates is a federal one,” the presiding justice, Musa Datti Muhammad, said. 

 “The constitution provides a clear delineation of powers between the state and the federal government.”

In her minority judgement, Justice Uwani Abba-Aji said the order became necessary to enforce constitutional provision given the illegality of the state governments. 

The apex court however refused the request by the 36 state governors for a refund of the sum of N66 billion spent on capital projects in the courts, maintaining that the responsibility of funding state courts falls on the state governments.

In the course of the appeal, the governors, through their counsel, Austin Alegeh (SAN) submitted that they have no objection to the funding of recurrent expenditures for the lower courts, except capital expenditure as provided under Section 121(2) and (6) of the Nigerian Constitution.

Analysts have explained that the judgment means that the status quo ante bellum remains in which the funds for the administration of the courts are released by state governors on a needs basis rather than as part of equal budget preparation and sourcing from direct, first-line charge. 

A constitutional amendment, political engagement needed – Lawyers

Speaking on the matter, Professor Abdullahi Shehu Zuru of Nile University, Abuja, said the judgment implies that “the presidency lacks the political will to emancipate the judiciary from the grip of state governors.”

He added that for a serious and purposeful government, the best approach was to present it to the National Assembly in form of a bill. 

In the meantime, he said the “politicization of the judiciary and ambush of justice will continue as usual. So what hope is left for justice of the law?”

In his view on the verdict, former Deputy Director-General of the Nigerian Law School, Professor Ernest Ojukwu, said even with a further constitutional amendment through the National Assembly, the human factor, especially by the state governors, would make it difficult to succeed.

 “There has to be a political decision at the end of the day; the civil society and the entire country has to rise against the governors,” he said.

“It is now left to us who are being ruled to rise because there is room for more civil awareness and engagement than we have had.

“We have left our legislators and governors alone for too long to manage us irresponsibly if you will allow me to use that word.

 “There is so much they have done to our system that if we don’t correct it, we can never achieve our democratic dividend.”

Abdulhamid Mohammed (SAN) said the way forward is to continue to press the state governors to comply with the provision of Section 121 of the Nigerian Constitution, as amended. 

“The section has been in existence before Executive Order 10 and it provides for the direct payment of money meant for the state judiciaries to the head of courts concerned,” he said.

In his view, Olalekan Ojo (SAN) said the federal government would no longer fund the state judiciaries, while Executive Order 10 as it relates to funds to the heads of courts can no longer be enforced.

 “We are now back to square one where everything remains at the discretion of the governor,” he said.

Protracting the battle for judicial autonomy 

The judgment has protracted the battle for the financial autonomy of the judiciary in the court.

There have been judicial autonomy cases filed by the former president of the NBA, Olisa Agbakoba (SAN), and the Judicial Staff Union of Nigeria (JUSUN) in 2014, which the Federal High Court decided in favour of the judiciary.

In June 2018, President Buhari signed the bill passed into law by the Bukola Saraki-led Senate, and the House of Representatives for judicial and legislative autonomy.

After unsuccessfully persuading the state governors to adopt the new law, the president then decided to set up a 22-man committee known as the Presidential Implementation Committee on the Autonomy of State Legislature and Judiciary, with the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), as chairman. 

The mandate of the committee was to ensure the full implementation of the 4th Alteration to the Constitution and thus free the judiciary and legislature from the stranglehold of the executive arm. 

Following the recommendation of the committee, President Buhari on May 22, 2020, issued Executive Order 10 to promote the independence and financial autonomy of state judiciaries across the country, relying on sections 5 and 121(3) of the constitution. 

Further to the order, Malami explained to the media that Article 6(1) of the order provided that “notwithstanding the provisions of this Executive Order in the first three years of its implementation, there shall be special extraordinary capital allocations for the judiciary to undertake capital development of state judiciary complexes, High Courts complexes, Sharia Courts of Appeal, Customary Courts of Appeal and court complexes of other courts befitting the status of courts.”