The positive effect of President Muhammadu Buhari’s Executive Order 10 that guaranteed financial autonomy for the judiciary and the legislature at the state level was upturned by a Supreme Court judgment last week. Claiming that “the president has overstepped the limit of his constitutional powers by issuing the Executive Order 10,” the Supreme Court, in a case instituted by 36 state governors, nullified the executive law. The six justices who decided the case include Muhammed Dattijo, Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro. Five of them, led by Justice Muhammed Dattijo, faulted the Executive Order 10, while one, Justice Uwani Musa Abba-Aji, delivered a minority position that supported the Executive Order.
Buhari had on May 22, 2020, signed the Executive Order No 10 into law, following years of outcry over how state governors had starved the legislature and the judiciary of funds, thereby frustrating the independence of the two other arms of government. Buhari’s Executive Order 10 was, therefore, meant to give effect to the provisions of the 1999 Constitution, as altered by the 4th Alteration Act, No.4 of 2017, which guarantees financial autonomy for the judiciary and the legislature at the state level. The order insisted that monies voted for the judiciary and legislature in state annual budgets must be on first-line-charge and directly sent to the leadership of the judiciary and the legislature, as against the prevailing practice where state governors manage the funds.
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The Executive Order, entitled ‘Implementation of financial autonomy for state legislature and judiciary 2020’, stipulated that if any of the 36 state governments failed to release the allocations in their budgets to the judiciary and the legislature, the Accountant General of the Federation should deduct the funds from source and pay them into the accounts of the legislature and the judiciary in the defaulting states. Before last week’s Supreme Court judgment, the federal government had implemented the order by deducting N66 billion from the accounts of state governments since 2020 when the executive order was signed into law.
In last week’s judgment, only Justice Uwani Abba-Aji gave endorsement to Executive Order 10, saying it was in line with the provisions of the constitution to enforce the separation of powers and functions. The justice argued that, “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 state legislatures and judiciary in curing the constitutional wrong of their financial autonomy which the states have always denied. This is not unconstitutional.”
Though the Supreme Court justices have interpreted the constitution, by insisting that the federal government should not decide how funds allocated to state governments should be used, we align with the position of Justice Abba-Aji who pointedly alluded to Executive Order 10 as a necessary pill to curb the excesses of state governors. It is no secret that, in their effort to frustrate being accountable to the people, state governors have emasculated the judiciary and state houses of assembly by starving them of funds. Judges and lawmakers at the state level go cap in hand to government for funds to pay salaries and execute capital projects. In the process, the Executive becomes their benefactor, the finger that feeds them, which must not be bitten. This situation is not healthy for our democracy.
We are not opposed to the judgment of the Supreme Court, but we call on the federal government and state governors to put in place appropriate measures that would ensure the budgets for the judiciary and the Legislature at the state level are on first-line-charge. Also, the Nigeria Governors’ Forum (NGF) must redeem its image by ensuring that whatever measures to remedy the faulty attitude of governors in this case are respected. The federal government had to set up the Universal Basic Education Commission (UBEC) and National Primary Health Care Development Agency (NPHCDA) to intervene in education and health sectors because of state governments’ ineffective management of the sectors. Unless governors demonstrate transparency and accountability, laws like Executive Order 10 would continue to be made by the federal government to compel state governors to act in a manner that is in tandem with the principles of democratic governance.
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