Since Friday, May 22, when President Muhammadu Buhari signed an executive order to give financial autonomy to the state Houses of Assembly and the state judiciary, Nigerians have been reacting. Political analysts, social commentators, politicians, as well as legal practitioners among other professionals, have all been expressing their views, with some commending the president, while others criticize him.
State legislatures and judiciaries have been under the apron string of the state governors since Nigeria’s return to civil rule in 1999. There have been allegations that monies budgeted for them had always been disbursed according to the whims and caprices of the state governors, even when the constitution provides that such funds should go directly to the heads of the two institutions. This singular practice, it is argued, has made it practically impossible for the state legislatures and judiciaries to live up to their constitutional responsibilities of checkmating the excesses of the state governors, since he who pays the piper dictates the tune.
However, determined to ensure that state Houses of Assembly and state judiciaries, just like their counterparts at the national level, the National Assembly and the federal judiciary enjoy financial independence from the state executives, President Buhari came up with the Executive Order 10. Announcing the development in his twitter handle on Friday, May 22, the President said: “Based on the powers vested in me under section 5 of the 1999 constitution as amended, I, today, signed into law Executive Order 10 of 2020, for the implementation of financial autonomy of the state legislature and judiciary.
“This administration will continue to do everything to strengthen the principle and practice of democratic governance in Nigeria.’
With the announcement, the political space was charged with players in the affected institutions shouting Uhuru and praising the president to high heaven. But, for the state governors, it was bad news.
For the Conference of Speakers of State Legislatures in Nigeria, the executive order was a Sallah gift from the President. They were of the view that the Order would make the state legislatures independent of the executive arm, as well as boost healthy competition among state legislatures in pursuit of the country’s development and growth.
But, for the governors, it was a moment of sadness. The state governors who had acted like emperors over the years couldn’t just understand what was happening. Apart from granting financial autonomy to state legislatures and the judiciary, the Order went a step further to empower the Accountant-General of the Federation to deduct at source monies due to the two institutions from the monthly allocation of states that fail to implement the law.
This forced the executives to quickly convene a meeting of the Nigeria Governors’ Forum (NGF), on Wednesday, May 27, to critically examine the Order, analyse its possible implications and see if they could find a way around it. However, at the end of their meeting, they resolved to engage the Attorney General of the Federation (AGF), Abubakar Mallami, on the implication of the Order. The governors resolved to achieve that through the NGF’s Legal Committee, comprising Govs Aminu Tambuwal, Rotimi Akeredolu and Solomon Lalong of Sokoto, Ondo and Plateau States respectively.
As excitement envelopes the state lawmakers across the country, even as governors lament and lick their wounds, Nigerians, particularly the legal practitioners, who see what has happened as their brief, have reacted variously to this convoluted discussion.
Former national president, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, described an executive order as an administrative directive by the Head of government to operationalise and deal with details of law, insisting that the president had taken the right step.
He argued that the 1999 constitution has already provided financial autonomy to the state legislature and judiciary, stressing that what the president did with the executive order 10 was just to give that constitutional provision a bite. He said: “by virtue of section 162, subsection 9, and section 121, subsection 3, as well as the third schedule, paragraph 1 of the 1999 Constitution, there are existing constitutional provisions expressly stating that monies to the credit of the state judiciary and legislature shall be disbursed directly to the heads of the two institutions. So, that being the case, it means that it has become one of the obligatory responsibilities of the executive spearheaded by the president in such presidential democracy to implement, because his responsibility under section 5 is to implement and execute the laws of the land.”
He lamented that in spite of all of the express constitutional provisions, the state governors had, over the years, found very ingenious ways of appropriating those monies that have been expressly directed to go to those arms of government which are co-equal with the executive.
Ugwummadu pointed out that when the National Assembly realised that the executive across board – federal, state and local, was using the avenue to suffocate the legislature, it enacted a law which created the National Assembly Service Commission.
According to Ugwummadu, in spite of the express constitutional provisions that the monies to the credit of state judiciaries and legislatures should go directly to the heads of the two institutions, the monopoly as well as the appropriation by the state governors continued. The development, he said, rendered the state Houses of Assembly very weak, and incapable of even giving effective check to the funds that accrue to them for their operations.
Ugwummadu argued that the body of legislatures ought to have taken the matter to court to ventilate the propriety of what the governors were doing, but their failure to do that was what led to the President’s executive order.
He agreed that the Order was in good faith, as it was for the sole purpose of consolidating the democratic process.
What to do
As it is now, Ugwummadu believes that it is either the victims of the continuing violation of the constitution, in this case, the state Houses of Assembly and the judiciary, go to court to advance that position further, or the governors should be responsible enough to self-commit and discipline themselves.
“We, as victims of the madness in the country, should not throw away the baby with bath water. We should be able to moderate and see where the president crossed the line. And once the governors self-commit, or once the judgment of the court is implemented, perhaps, within the first, second quarters of the Order, who says the president cannot revoke his orders? He can revoke his order because it is just an administrative order,” he said.
Also lending his voice to the matter, the former Minister of Information, Prince Tony Momoh, said the executive order only drew attention to what is obvious. While commending the President for the bold step, he lamented that the state legislatures and judiciaries as well as local governments have been denied the right to be financially autonomous for a very long time
“What we are operating in Nigeria is what is in 1999 as amended and it shared the powers of the people among the three arms of government, which include the lawmaking arm, the law executing arm, and the law interpreting arm, as well as the power to monitor governance which is given to the media. In other words, the powers of the people are shared among the legislature, the executive, the judiciary and the media and it can be found in the constitution. “So, the constitution is the documentation of delegated powers. Anything done by anybody in the process of lawmaking, execution and interpretation, which is not in the constitution is illegal.
“The state judiciary and legislature have been denied the right to be financially autonomous, including the local governments by the state governors. This wicked breach of the constitution all along seems to have been taken for granted by the governors such that they have powers to do what they are doing.
“So, the president’s Executive Order 10 only draws attention to what is obvious and tries to bring to bear the things that make us a federation. We have been running a lopsided federation. The powers of the state governors have been overbearing. The President is just trying to streamline what ought to be happening.”
Also, former second vice president of the Nigeria Bar Association (NBA), Monday Ubani, commended the president for the executive order. He argued that the constitution had already provided financial autonomy for the state legislatures and judiciaries but only that the state governors have refused to obey it. What the president, as head of the executive has done with this order, according to him, is to make clarification and give directive to the obedience of that law that has been passed. He said, somebody must enforce the laws as provided in the constitution and the president owes that duty to ensure that the laws must be enforced as provided by the constitution.
He went further to state that over 80 percent of Nigerians were in tune with what the president has done, arguing that it was not meant to violate the law but to ensure compliance with the law.
However, for Emmanuel Anene, who is also a lawyer, the executive order was unnecessary, overloaded, inconsistent and overbearing.
Anene, who was on the African Independent Television (AIT) newspaper review edition of Wednesday last week, lamented that some of his colleagues who support the president’s executive order were talking moral instruction, instead of talking about the legality of it.
He argued that the essence of federalism as practised in Nigeria is not to promote a father and son relationship, neither is it to promote that of a mother and daughter relationship.
He stressed that an executive order is not a law, but just a rule. He went further to state that going by section 5, subsection 1 of the 1999 constitution, the president has the right to maintain only the laws passed by the National Assembly and not the laws passed by the state assembly. “It is only in the unitary system of government that the centre supervises the state. Under federalism, the centre has no power to give directive or to monitor the states on where they put their money to. Part of the Order provides that within three years, XYZ capital project will be executed by the state for the judiciary. That is a directive; it is abysmal. It is an anomaly that is never tolerated anywhere, not even in America. The executive order must not run contrary to the constitution,” he submitted.
While maintaining that the executive order was unnecessary, inconsistent and overbearing, he argued that the removal of intimidation, blackmail and arm twisting were the only things that could guarantee the independence of the judiciary and state legislatures. “The proper thing is to amend the law to suit the exigencies of the time,” he added.