June 2, 2020
Two years after the National Assembly altered the Constitution to grant state legislatures and judiciaries financial autonomy, President Muhammadu Buhari on May 22, 2020 signed Executive Order No.10 to enforce the law. But there are obstacles in the way, writes ROBERT EGBE.
Media reports suggest that President Muhammadu Buhari will step up plans to enforce financial autonomy of the state legislature and judiciary this week by gazetting Executive Order No.10 (EO 10).
The gazette will then be served on the Presidential Implementation Committee of the Executive Order 10, the Accountant-General of the Federation, and all state governors.
It will also be served on heads of courts, including the Chief Justice of Nigeria, the President of the Court of Appeal, the Chief Judge of the Federal High Court, the Chief Judges of the state High Courts, among others.
The President signed EO 10 on May 22, 2020 following governors’ refusal to comply with Section 121(3) of the Constitution which the National Assembly and 36 state houses of assembly modified in 2018 to accommodate financial autonomy for state legislatures and judiciaries.
The amendment, known as Constitution Alteration Act No 4 of 2017, put the budgets of the state judiciary and the legislature on first line charge. It provides that any amount standing to the credit of the state judiciary and legislature in the Consolidated Revenue Fund of the state must be paid to the heads of the institutions.
Where a state government fails to release the allocations due to the state’s legislature or judiciary, EO 10 empowers the Accountant-General of the Federation to deduct the allocation from source and pay it to the legislature and the judiciary.
Pursuant to EO 10, the Presidential Implementation Committee headed by Attorney-General of the Federation Abubakar Malami SAN will fashion out the modalities of the implementation of Section 121(3).
Under Article 6 of EO 10, the President directed that in implementing Section 121(3) of the Constitution, the allocations of both the state legislature and the judiciary must be included in the state’s appropriation laws.
He also asked that states with existing Appropriation Laws to amend them to encompass financial autonomy of state legislature and state judiciary and those without such laws must do so.
EO 10 also provides 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 Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of other Courts befitting the status of a Courts.”
It also asked the state judiciaries to set up “a State Judiciary Budget Committee” to serve as “an administrative body to prepare, administer and implement the budget of the state judiciary with such modifications as may be required to meet the needs of the state judiciary.”
Executive Order 10
The Executive Order 10 reads in part: “WHEREAS a Presidential Implementation Committee was constituted to fashion out strategies and modalities for the implementation of financial autonomy for the State Legislature and State Judiciary in compliance with Section 121(3) of the Constitution… which provides for financial autonomy at the state tier of government;
“WHEREAS implementation of financial autonomy of the State Legislature and State Judiciary will strengthen the institutions at the State tier of government and make them more independent and accountable in line with the tenets of democracy as enshrined by the Constitution of the Federal Republic of Nigeria 1999 (as Amended); and
“By the power vested in me as the President of the Federal Republic of Nigeria under Section 5 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), which extends to the execution and maintenance of the Constitution, laws made by the National Assembly (including but not limited to Section 121(3) of the 1999 Constitution (as Amended), which guarantee financial autonomy of the State Legislature and State Judiciary.
“Now, therefore, I, Muhammadu Buhari, President of the Federal Republic of Nigeria, in exercise of the power conferred on me, do hereby orders as follows:
“Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary, allocation of appropriated funds to the State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge.
“The Accountant-General of the Federation shall by this Order and such any other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorize the deduction from source in the course of Federation Accounts Allocation from the money allocated to any state of the Federation that fails to release allocation meant for the state legislature and state Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended).
“Subject to Section 8(1) of this Order, implementation of the provisions of this Order shall be carried out by the Presidential Implementation Committee in accordance with its recommendations.
“(b) To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the recommendations of the committee, as may from time to time be made.
“(c) This Order shall be implemented consistently with States applicable laws that guarantee financial autonomy of State Legislature and State Judiciary and subject to the availability of funds.”
Need for judicial financial autonomy
The necessity for financial autonomy is obvious. Judicial officers are at the mercy of governors for comforts of and tools of their trade.
For instance, it is a common sight to see governors celebrating buying cars for judges, while many courtrooms are eyesores and uncompleted or dilapidated structures litter court premises across the country, following inadequate funding.
Litigants, lawyers and judges regularly jostle for space in the tiny court rooms of the Federal High Court, Ikoyi. Nearby, a nine-storey building purposed to be the court’s permanent edifice, has been under construction since 2012, following lack of funds.
In a conference themed: ‘The Judiciary as a Veritable Instrument for Nurturing Democracy in Nigeria,’ organised for judges of superior courts by the National Judicial Institute (NJI) in Abuja, Mahmud Mohammed, then Chief Justice of the Nigeria, highlighted the financial challenges of the judiciary.
He lamented that in a country where an arm of government is appropriated with less than one percent of the national budget, it was a big joke to refer to the judiciary as being truly independent.
“The present practice of judiciary funding by the defendants (executive and legislature), which makes the judiciary dependent on the executive arm in budgeting and release of funds, violates Sections 81 (2) (3) (c) and 84 (2) (7) of the Constitution. It is, therefore, unconstitutional, null and void,” he told the bewildered members of the executive and legislature.
Case for E0 10
Defending EO 10 AGF Malami said it was designed to force constitutional compliance with Section 121(3) of 1999 Constitution.
He spoke last Thursday on the Radio Nigeria programme, “Politics Nationwide”.
In a statement through his Special Assistant on Media, Dr. Umaru Jibrilu Gwandu, the Minister said “Executive Order No. 10 is meant to bring about the constitutionality associated with the autonomy of the state legislature and judiciary.
He said the order was also “intended to achieve supervisory role by assigning responsibilities and ensuring proper supervision desired for the purpose of enforcement and application of autonomy constitutionally granted states legislature and judiciary as contained in Section 121(3) of the 1999 Constitution of the Federal Republic of Nigeria.
“The Executive Order is therefore a necessary tool for the purpose of bringing into effect such autonomy by way of assigning certain responsibilities, both institutional and otherwise necessary for the purpose of enforcing the autonomy.
“By way of example, therefore, if the Federal Government wants to withhold the resources of a state government that refuses to comply with the constitutional provision relating to the autonomy of state legislatures and Judiciary, then the Federal Government may require the services of the Office of the Accountant-General of the Federation”.
“Similarly, if the government wants the state legislature to be part of the process relating to appropriation, for example, agreement must be reached on the need for the state legislature to be alive to their responsibility.”
A Former President of Nigerian Bar Association (NBA) and constitutional lawyer, Dr. Olisa Agbakoba (SAN) also threw his weight behind the President’s move.
According to him, EO 10 is backed by case law.
Referencing the Nigerian governors’ threat to file legal action against the Federal Government over the matter, Agbakoba said a “simpler form of Executive Order 10 would have avoided the seeming confusion which is simply withholding the states’ money on grounds of non-compliance with Section 121(3) of the Constitution.”
In a statement, he said: “We welcome the recent signing by the President of Executive Order No. 10 of 2020 which seeks to enforce financial autonomy for the Legislature and Judiciary of the 36 states of the Federation.
“The intendment of Executive Order 10 is to implement Section 121(3) of the Constitution of the Federal Republic of Nigeria (as amended) which the President as Chief Executive Officer of Nigeria has powers pursuant to Section 5 of the Constitution to enforce by requesting states to pay monies directly to the State Legislatures and Judiciaries.
“There is in place a body of case law which supports Executive Order 10, one of which is Agbakoba vs Fed Govt, The NJC & National Assembly Suit No. FHC/ABJ/CS/63/2013 decided in my favour by the Federal High Court in 2014.
“Any State in Nigeria that feels Executive Order 10 infringes its powers should approach the Supreme Court to challenge it but they should not forget that even if they are successful there is still a duty imposed by Section 121 (3) to pay monies directly to State Legislatures and Judiciaries.
“Without prejudice to the outcome of whatever case might be filed it is our view that a simpler form of Executive Order 10 would have avoided the seeming confusion which is simply withholding the states money on grounds of non-compliance with s121 (3) of the Constitution.”
Governors’ opposition to financial autonomy, EO 10
But the Nigeria Governors’ Forum (NGF), which generally failed to comply with the constitutional amendment, have opposed EO 10 and even hinted at legal action to suppress it.
According to them, EO 10 is unnecessary and an over-kill of Section 121(3).
Last Thursday, they met separately with the President and the AGF to press home the objection of the state chief executives to the order.
Why EO 10 may be unconstitutional
Senior Advocate of Nigeria (SAN) Abiodun Owonikoko identified several problems which may render EO 10 unlawful.
Owonikoko, who spoke last Friday during a TV programme, observed that the President seemed to have used EO 10 like “an instrument of law-making?”, which, according to him, was unconstitutional.
He said: “The first problem with that instrument is that it used an expression that the President had enacted a law by way of executive order. That would be the first challenge under the principle of quo warranto; what authority has the president to enact a law?
“Two, the executive order has not added or created any new right or obligation. What it has done is to duplicate and exemplify what has already been enacted into the Constitution.”
The Silk argued further that there is a fundamental flaw in the way EO 10 was conceived, “which is that the order has given directives to the Accountant-General of the Federation to act in line with or with further directives by the Attorney-General of the Federation commanding state authorities, which will include even the legislature and the operatives of the executive arm to submit their budgets to the Accountant-General of the Federation for the purpose of ensuring that appropriations or funds charged to the consolidated revenue of the state, meant for the judiciary and legislature are provided for. And if they are not provided for, then the Federal Government can withhold and directly disburse.
“This is totally unconstitutional. That’s because Section 153 of the Constitution has provided certain bodies called executive bodies, one of which includes the Revenue Mobilisation Allocation and Fiscal Commission (RMAFC) that is charged with the duty of allocating revenue from Federation Account. “Once that is done, FAAC, which is the Federal Accounts Allocation Committee in which state commissioners for Finance and Accountants-General of the states also participate, meet and decide how much of these funds go to the state based on the revenue allocation formula.
“Then what you’re doing at that stage is allocation of revenue, it’s not appropriation and it’s after allocation that the consolidated revenue of a state can be determined, which will include not only federal disbursement (which is a receipt) it also includes revenue raised by the state, (which is what we call IGR – Internally Generated Revenue). It is the combination of both that constitutes the consolidated revenue of a state.”
He said at that stage, under Section 121, it is the authority of a state executive and the Auditor-General of the state to apportion and submit a budget by the governor to the state Houses of Assembly for appropriation.
Owonikoko further noted that under Section 158 of the Constitution, “the body charged with allocating revenue is an independent body that does not listen to or take directives from the President. It is meant to be an executive body of the executive just like INEC.
“So, for the Presidency to now issue an executive order directing the Auditor-General and Attorney-General to, as it were, hijack functions of the state Houses of Assembly and then dictate how their priorities for economic provisions are made, is totally unconstitutional.
“Beyond that, there is a provision in the Constitution that says where these bodies that are charged with allocating revenue have reason to impose obligations on state authorities, they must get the consent of a state governor.
“So, the discretion that the President has exercised now actually belongs to state governors which a responsible state governor will likely not ignore knowing that it is now a constitutional provision that you must directly disburse portions of your consolidated revenue that is meant for parliament and for the judiciary. That step has not been taken.
“This is where there are challenges with the executive order.”
Resolving the problem
Former Deputy President of the Senate, Senator Ike Ekweremadu, who last Friday faulted EO 10, advised governors to shun legal option.
“If they go to court, the implication is that the application of that amendment regarding financial independence of the State Judiciary and State Assembly will be put on hold because so long as they are in court, those provisions will not be implemented.
“So, it something the governors and the Attorney General and the President need to settle amicably.”
For Adegboruwa, the executive order is critical and goes “to the very root of the many problems associated with justice administration.
“No matter the quantum of the amount of money released, the judiciary should have the power to determine its budget and spending, to prioritize its commitment level, all targeted at delivering justice to the people,” he said.
He, however, noted that the problem of lack of judicial autonomy is beyond finance.
Adegboruwa said: “You cannot give autonomy with one hand and withhold it with the other. Judicial independence cannot be measured by funding alone, but also in the willingness to obey and abide by all decisions and orders of the courts. The integrity of the judiciary is better achieved through wilful obedience to the orders and directives of the courts.
“In this regard, so long as judges are living under some mortal trepidation of persecution on account of their decisions, as long as we still require persuasion to get the executive to obey court orders, then the judiciary cannot be said to be independent, no matter the amount of billions of naira thrown at the courts.”
He advised the President to extend the executive order to include compulsory obedience to all lawful orders issued by the courts and to prohibit any form of harassment or intimidation of judicial officers.
“When this is achieved, then we can truly say that the judiciary is autonomous and independent…” he added.