The grinning state governors

I see the state governors grinning from ear to ear. They have just emerged from a battle with the federal might. Like David, they beat Goliath. There might be a stiff price that might make this victory merely pyrrhic. The battle was won but the war is still on and unless there are urgent changes in the attitude of the state governors, the next president might continue with the war to save the state legislature and the judiciary from financial dependence.

The Supreme Court of Nigeria gave victory to the state governors last week when it put its foot down on the scrawny neck of President Buhari’s Executive Order 10. The court declared it unlawful and unconstitutional. 

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Their lordships said that “Nigeria is still a federation and the 1999 constitution it operates is a federal one. The constitution provides a clear a delineation of powers between the state and the federal government. The president has overstepped the limit of his constitutional powers by issuing Executive Order 10. The country is ruled on the basis of law.”

Strong, unmistakable chastising words from the apex court empowered by the constitution to keenly guard the supreme law of the land and ensure that no one, including the president, breaches its provisions. This is the principle of constitutional government. It makes all citizens equal before the law. It guarantees the poor the right to have his day in court in defence of his rights as a human being. It all sounds so sweet and beguiling in theory. But that is a subject for another day.

Buhari issued Executive Order 10 in 2020 officially known in legalese as “the implementation of financial autonomy for state legislature and judiciary Order, 2020.” The intent of the order was to empower the federal government to “enforce the financial autonomy of the legislature and judiciary” in the states. The law empowered the accountant-general of the federation to deduct from the allocations due to a state from the federation account, any sums for the legislature or the judiciary of that state which the state fails to release to its legislature or judiciary as the case may be and to pay the funds directly to the state legislature or judiciary concerned.” 

It alarmed the state government – and for good reasons. It is an erosion of their assumed powers in all financial matters. They have effectively crippled the two arms of government as well as the local government system with this assumed power. They will always defend their right to act as pay masters of their states, the constitution itself be damned. 

From all indications, the president obviously meant well. I do not think he set out to overstep his constitutional boundary although he has inclined towards that tendency on a few occasions. My take is that he acted out of despair and frustration with the state governors, most of whom have some contempt for the principle of financial autonomy for the legislature and the judiciary. They hobble their financial autonomy in order to weaken them and make them pliable and for ever beholden to their excellencies for crumbs and pittances as and where their fancy sways them. 

In her dissenting judgment, Justice Uwani Abba-Aji re-echoed the president’s sentiment in issuing the order. She wrote: “We are aware of the hanky-panky, subterfuge played by the 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 and aids the states legislature and judiciary in curing the constitutional wrong of their financial autonomy…”

The legislature and the judiciary are the second and third arms respectively in our form of government. They are the pillars of our constitutional government. To deny them financial autonomy is to impugn their integrity as autonomous arms of government with a measure of independence consistent with their defined constitutional roles.

Their lordships emphasised that ours is a federation, and the constitution operates “a federal one.” The problem, really, is that we often do not know which system the country is really operating – a federal system in law and fact or a unitary system effectively superimposed on a weak federal system of government. In certain areas, our system imitates the vertical military command structure; and in other areas we manage to pay a grudging respect to the principles of federalism. I like Professor Isawa Elaigwu’s name for the hybrid system: military federalism. It is a confusing and stifling hybrid inimical to federalism.

Under the constitution, the salaries of state judicial officers in state high courts are paid through the National Judicial Council; while under section 121 (3) the states pay the salaries of judicial officers on the lower bench even though the clause does not so specify. Federal and state courts, high or low, are created by the constitution. 

The states were emboldened to demand that the federal government should be responsible too for the funding of capital projects for state high courts, sharia court of appeal and customary court of appeal. Their lordships turned it down. 

That came as a surprise. It is part of the confusion in our system. I would think it is illogical to share the funding of state high courts between the federal and state governments. Logically the NJC that funds the recurrent expenditures of the state high courts should also fund their capital projects. The fundamental question is: Is it consistent with a federal system for the NJC to fund the recurrent expenditures of state high courts? 

We passed through years of military rule. That form of government inevitably left its tradition and detritus that have coloured our constitutional government. After all, the military minted the 1999 constitution. Still, we refuse to face the task of removing the fuzziness in our system to clear the way for the rule of law based on our constitution. The financial autonomy of the legislature and the judiciary is so critical to the success of our form of government that it ought not to be left to the whims and caprices of state governors. By crippling the two arms of government financially, they render our form of government that rests on three arms a nullity and are clearly guilty of assuming extra-constitutional powers inimical to our constitutional democracy. I thought it qualifies as an impeachable offence.

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