Recently, the Supreme Court of Nigeria, in a split decision of six judges to one, nullified Executive Order 10, saying it was unconstitutional. President Muhammadu Buhari had issued the order on May 22, 2020. The aim was to grant financial autonomy to the state judiciary and legislature as stipulated in the 1999 Constitution. It was to strengthen these two institutions and make them more independent and accountable.
Essentially, Executive Order 10 made it mandatory for all the states to include allocations of the legislature and the judiciary in their appropriation laws. The Federal Government had stated that the order was an offshoot of a judgment of the Federal High Court which ordered financial autonomy for the state judiciary. Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), said the President derived the power to issue the order from Section 5 of the Constitution.
Justice Uwani Abba-Aji, who had a dissenting verdict on Executive Order 10, agrees with the Federal Government. He argued that what judicial officers and staff went through financially at the hands of state executives was a pitiable eyesore. According to him, the governors 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 states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the states have always denied. This is not unconstitutional,” Justice Abba-Aji noted.
True, the prevailing practice is that state governors manage the funds meant for the judiciary and the legislature instead of it being sent to them directly from the federation allocations. Being in control of the financial resources meant for these two arms of government, state governors usually seek to control both judges and legislators. This has hampered their independence and smooth operations. The Judicial Staff Union of Nigeria (JUSUN) has had cause to go on strike on a number of occasions to press home their demand for financial autonomy for the judiciary.
However, the 36 state governors had gone to court in September 2020 to challenge the order on the grounds that it was against Sections 6 and 8(3) of the 1999 Constitution. Stating that they had been funding capital projects in the state High Courts, Sharia Court of Appeal and the Customary Court of Appeal, the governors prayed the apex court to order the Federal Government to refund them the money estimated at N66 billion.
In nullifying the Executive Order 10, the Supreme Court, in a lead judgement delivered by Justice Mohammed Dattijo, ruled: “This country is still a federation and the 1999 Constitution it operates is a federal one. The constitution provides a clear delineation of powers between the state and the Federal Government. The President has overstepped the limit of his constitutional powers by issuing the Executive Order 10. The country is run on the basis of the rule of law.” The apex court, however, rejected the governors’ plea on refund. Four of the seven-man panel also rejected the request of the governors for the Supreme Court to compel the Federal Government to take up funding of capital projects for the state High Courts, Sharia Court of Appeal and Customary Court of Appeal. This, in effect, means that the state governments will continue to fund capital projects in the three courts as has been the practice since 1999.
The Buhari administration has so far issued over 10 Executive Orders. Some of the orders include Executive Order 1 of 2017 which is on the promotion of transparency and efficiency in the business environment; Executive Order 2 of 2017 is on submission of annual budgetary estimates by all statutory and non-statutory agencies of the Federal Government, and Executive Order 3 of 2017 is on support for local content in public procurement by the Federal Government.
Ordinarily, there is no problem with issuing Executive Orders. The United States of America under ex-President Donald Trump issued many Executive Orders to facilitate execution of policies within the executive arm of government. The problem with Buhari’s Executive Order 10 is that it went beyond facilitating the smooth execution of policies within the executive arm by interfering with the principle of separation of powers. The intention may be good, but it is not for the executive to interpret the intention of the constitution.
It is the duty of the judiciary to do so. It is also not the duty of the executive to make or amend laws. It is the duty of the legislature to do so. Sections 4, 5 and 6 of the 1999 Constitution define the powers of the various tiers of government. No arm should usurp the powers of the other. This, to us, is the essence of the Supreme Court ruling on Executive Order 10.