In this report, AHURAKA YUSUF ISAH takes a cursory look at the Executive Order 10 and the debate it has generated so far.
On May 22, 2020, President Muhammadu Buhari signed the Presidential Executive Order No. 10 of 2020, which is the Financial Autonomy of State Legislature and State Judiciary Order 2020.
The Executive Order 10 was meant to enforce the financial autonomy of the legislature and the judiciary at the state level; as it mandates the Accountant-General of the Federation to deduct from source the amount due to state legislatures and judiciaries from the monthly allocation to each state for states that refuse to grant such autonomy.
The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), had clarified that the president signed the order based on the power vested in him as the president under “Section 5 of the 1999 Constitution (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.”
According to the AGF, the order provides that: “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, authorise the deduction from the 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).”
On June 8, 2018, President Buhari assented to Four Acts amending the 1999 Constitution (as amended); and this includes Constitution (4th Alteration) Act, No. 4, which relates to financial autonomy of the legislature and the judiciary at the state level.
Section 121(3) is amended by providing for direct funding of the Houses of Assembly of the states’ directly from the Consolidated Revenue fund of the state. And also, the funding of the Judiciary in the states directly from the Consolidated Revenue fund of each state by paying directly to the head of the courts concerned. This formally grants financial autonomy to the Legislature and the Judiciary in all the states of the Federation.
However, by September 2020, the 36 states of the federation approached the Supreme Court and asked it to declare the Presidential Executive Order No. 00-10 of 2020 unconstitutional.
In the suit filed on their behalf by nine Senior Advocates of Nigeria (SANs), led by a former president of the Nigerian Bar Association, Mr. Augustine Alegeh (SAN), and six other lawyers, the 36 states explained that Buhari, by virtue of the order he signed on May 20, 2020, had abdicated the federal government’s responsibility of funding both the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal, and the Customary Court of Appeal, to the state governments. They named the Attorney General of the Federation, Malami as the sole respondent.
How Order 10 Contravenes the Constitution
They contended that the order was a clear violation of sections 6 and 8(3) of 1999 Constitution, which make it the responsibility of the federal government to fund the listed courts.
The 36 states, which said they had been funding the capital projects in the listed courts since 2009, are also praying the Supreme Court to order the federal government to make a refund to them.
“Since the 5th of May 2009, the defendant had not funded the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the plaintiffs’ states, apart from paying only the salaries of the judicial officers of the said courts.
“The plaintiffs’ states have been solely responsible for funding the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the plaintiffs’ states’’.
In its editorial comment on June 2, 2020, Thisday held in part that ‘’the President has by the Executive Order authorised the Accountant-General of the Federation to deduct from source in the course of Federation Accounts Allocation, 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. Neither the President nor the Accountant-General of the Federation is authorised by the Constitution, to withhold or make any deduction from the funds due to any State Government from the money allocated to it from the Federation Account. The order made by the President is in contravention of Section 162(4) of the Constitution, which states that any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly. It is worrisome that the President could resort to an extra-judicial mechanism, to compel the States to obey his unconstitutional Executive Order.
In A-G LAGOS STATE v A-G FED (2004) 18 NWLR (PT 904) 1 TOBI JSC deprecated the resort to self-help by the Executive thus: “In a society where the rule of law prevails, self-help is not available to the Executive or any arm of government. In view of the fact that such a conduct could breed anarchy and totalitarianism, and since anarchy and totalitarianism are antitheses to democracy, courts operating the rule of law, the life-blood of democracy, are under a duty to stand against such action……… In our democracy all the Governments of this country as well as organisations and Individuals, must kowtow to the due process of the law and this they can vindicate by resorting to the courts for redress in the event of any grievance’’.
‘’The President cannot jettison the clear provisions of the Constitution which recognise the autonomy of the States, and arrogate to himself the power for the actualisation of the independence of the State Legislature and State Judiciary, by an unconstitutional executive order. The President ought to be guided by the admonition of UWAIFO JSC in A-G LAGOS v A-G FED (supra):
“I do not think it is appropriate to brand the Federal Government or Mr President, as a trustee in relation to the constitutional powers conferred on and exercisable by them…… The President exercises executive powers under the Constitution. They are, without dispute, awesome powers, but even so, they have known limits. The exercise of the powers is kept within bounds by the intervention of the rule of law’’.
Some lawyers however held that the Executive Order No. 10 of 2020 did not grant financial independence to the states’ legislature and the judiciary, because the financial autonomy of the judiciary and legislature at both the Federal and State levels are already provided for by the Constitution. Unfortunately, it is being breached by Federal and State Executives, and the Judiciary having no control over funds automatically becomes the most vulnerable and the biggest victim at both the Federal and State levels.
Why Order 10 is Irrelevant
According to Chinedu Nneke (Senior Associate, Olisa Agbakoba Legal), ‘’an examination of Part E of the 1999 Constitution (as amended) relating to powers and control over public funds, shows the constitutional effort to guarantee and secure independent funding of the Judiciary, free from Executive interference and control. Sections 80, 81 and 84 of the Constitution, in particular, give the Judiciary power and control over its own funds.
While Section 80 of the Constitution establishes the Consolidated Revenue Fund of the Federation as a pool of national income, Section 80(2) stipulates how monies are withdrawn from the Consolidated Revenue Fund of the Federation. In the words of Section 80 of the Constitution “No moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet expenditure that is charged upon the Fund by this Constitution or where the issue of those moneys has been authorized by an Appropriation Act, Supplementary Appropriation Act or an Act passed in pursuance of Section 81 of this Constitution. In essence, Section 80(2) approves only 2 ways money can lawfully be withdrawn from the Consolidated Revenue Fund, namely: by direct charge upon the fund, and by appropriation.
Also, according to Barr Muktar Abanika, ‘’the Constitution provides for the release of funds allocated to the judiciary to the National Judicial Council (at the federal level) and State judicial Service Commission (at the state levels) which are chaired by the Chief Justice of the Federation and Chief Judge of the State respectively. Section 81 (3) of the constitution provided that any ”amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the State under section 6 of this constitution”.
‘’Further, the Constitution provided in section 84(7) that the ”recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in subsection (4) of this section) shall be charge upon the Consolidated Revenue Fund of the Federation”.
‘’Similarly, the Constitution provided in section 121(3) that any” amount standing to the credit of the judiciary in the Consolidation Revenue Fund of the State shall be paid directly to the heads of the courts concerned”. These provisions strengthen the judicial independence in terms of control of over the disbursement of fund allocated to the judiciary. In reality, however, the ‘provisions are observed more in breach’’.
This is just as Barr Alasa Ismaila said, ‘’Section 17 (2) (e) provides that the independence, impartiality and integrity of courts of law and easy accessibility shall be secured and guaranteed. For the judiciary to perform to its optimal, it should have some modicum of independence. It is rather unfortunate to note that this provision is under the Fundamental Objectives and Directive Principles of State Policy, whose provisions by virtue of section 6 (6) (c) of the constitution are non-justiciable. It is therefore made manifest that the constitution itself after providing for the independence of the judicial arm renders such independence unenforceable. This consequently poses a challenge to the judicial arm as to whether it is truly independent.
‘’In Furtherance with the aforementioned, the judicial set-up does not ensure the needed independence for the judiciary to perform its functions impartially. This takes leap from the process of appointment of judges, dismissal of judges, funding and the general conditions of service of judicial officers and personnel which are basically left in the hands of the executive. This can be buttressed by taking a perusal into the National Judicial Council which is the body charged with the task of recommendation of Justices and Judges by virtue of 231 (1), 238 (1), 250 (1) (2), 254B (1) (2), 256 (1) (2), 261 (1) (2), 266 (1) (2), 271 (1) (2), 276 (1) (2), 281 (1) (2) of the constitution to realize that such a body is actually a Federal Executive Body pursuant to Section 153 (1) (i). It is therefore discovered that the Judicial officers are recommended by a Federal Executive Body, ratified by the Legislative and appointed by the Executive. The question that therefore bothers around the mind is that is the Nigerian Judiciary truly independent?
‘’Amongst the various challenges of judicial independence is the power of the purse which is the most experienced challenge. It is rather unfortunate that in Nigeria the power of the purse resides in the Executive and Legislature as this hampers the independence of Judiciary.
‘’Although Sections 84 (2) (4) (7) and 121 (3) of the constitution ostensibly grants financial autonomy to the Judiciary by providing that the recurrent expenditure of judicial officers of the Federation and the States shall be a charge upon the Consolidated Revenue Fund of the Federation or State, there does not appear to be any provision in the constitution that specifically ensures the proviso of capital expenditure for the Judiciary. More so, that which is directly provided for in the aforementioned sections, the Executive arm of the Government still has to approve how many Judges will be appointed and catered for by the Government. However, the definition of judicial officers in Section 318 of the constitution excludes judicial officers of the inferior courts and non-judicial staff. Further, Section 80 (4) of the constitution provides that no moneys shall be withdrawn from the Consolidated Revenue Fund or any other public fund of the Federation except in the manner prescribed by the National Assembly. The question then rises up that what if the National Assembly refuses to prescribe a manner, what then happens? At the moment, Section 2 (2) of the Public Funds of the Federation (Disbursement) Rules made pursuant to Section 23 of the Finance (Control and Management) Act requires a warrant issued by the Minister of Finance. Another question is this, what then happens in the event that the Minister of Finance fails to issue a warrant?
‘’In summary, it is rather unfair that the Executive arm determines the army of officers it maintains every year and the Legislature makes laws about the disbursement of revenue. Of course the Legislature and the executive between them can always vote what they want for themselves; whilst the judiciary, the ‘third arm’ is allocated what the other two deem fit. It leaves the judiciary in a position of going on bended knees to request for whatever it needs. If anything at all, the situation discussed above does not make for the independence of the Judiciary’’.
Meanwhile, the constitution prescribes ‘‘the Consolidated Revenue Fund of the Federation, the Consolidated Revenue Fund of the State and the Federation Account’’ as the three sources by which the judiciary shall be funded.
Section 84 (2) and (4) of the 1999 Constitution provides that the remuneration, salaries and allowances payable to the judicial officers of the superior courts of record are charged on the Consolidated Revenue Fund of the Federation.
This position received an authoritative pronouncement of the Supreme Court in A.G Federation v. A.G. Abia State & Ors (2002) 6 NWLR (Prt 764) 542 at 688 where the court held:
“It is the Consolidated Revenue Fund of the Federation and not the Federation Account that is charged with the salaries of Judicial Officers in the Federation.”
Section 84 (7) of the Constitution also provides that, “recurrent expenditure of judicial offices” otherwise known as the over-head cost of running the courts and the judges’ chambers are charged upon the Consolidated Revenue Fund of the Federation.
In respect of the remuneration, salaries and allowances of judicial officers, Section 84 (1) of the Constitution prescribes that; such shall be determined by the Revenue Mobilization Allocation and Fiscal Commission.
The role of the NJC in respect of the remuneration, salaries, and allowances of judicial officers and the recurrent expenditure of their offices is one of disbursement of such funds to the heads of courts concerned. Section 81 (3) (c) of the Constitution in an unambiguous term, provides:
“The amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the States under section 6 of this constitution.”
No doubt, this provision has been observed to the letter at the level of the federal tier of government.
However, one of the most problematic and contentious provisions of the constitution, in respect of the funding of the judiciary relates to Section 121 (3) of the Constitution. The said section provides that, any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of courts concerned. The enforcement of this provision poses the greatest challenge to the judiciary at the state level, as this clear and unambiguous provision of the constitution is being observed more in breach than in compliance in many states. Many governors consider this provision as an affront to their imperial powers. They prefer to see the Chief Judges and other heads of courts of their states tremble before them, cap-in-hand, to “beg” for funds to run the affairs of the states’ judiciaries.
The direct effect of the non-enforcement of the provision of Section 121 (3) of the Constitution is the pitiable, deplorable and near-despicable state of affairs and decay of infrastructural facilities visible in our courts today, particularly, at the state level.
In 2013, the Judiciary Staff Union of Nigeria (JUSUN) instituted an action constituted as Suit No: FHC/ABJ/CS/667/13 against the National Judicial Council, the Attorney-General of the Federation and the Attorney-Generals of the States, and claimed reliefs for the implementation of the financial autonomy of the Judiciary in accordance with the provisions of the 1999 Constitution. The then Justice Adeniyi Ademola of the Federal High Court, Abuja, delivered judgement in the suit on the January 14, 2014, and that the states’ failure, neglect and/or refusal to pay the Funds/Amount standing to the credit of the States’ Judiciary, is a Constitutional breach which has to be abated forthwith.
Consequently, he made an order that the piece-meal payments/allocation of funds through the States’ Ministry of Finance to the States Judiciary at the 2nd-74th Defendants’ pleasure is unconstitutional, unprocedural, cumbersome, null, void and be abated forthwith.
He made an Order mandating /compelling the 2nd-74th Defendants to comply with the provision of Section 81(3), (4) (3) and 162(9) of the 1999 Constitution (as amended) in the disbursement of funds to the head of Courts forthwith
‘’An Order of Perpetual injunction is hereby made, restraining the 2nd-74th Defendants, their agents, assigns, privies etc from committing any further breach of the aforesaid Constitution/statutory provisions.
None of the 36 States appealed against the judgement in the JUSUN action, yet they did not comply with the orders made by the court.
In compliance with the provisions of the Constitution of the Federal Republic of Nigeria, the Legislature and Judiciary in each State of the Federation must be fully independent. The State Governors have no choice in the matter, more so when there is a subsisting judgement of court compelling them to do so. However, the President who was actuated by altruistic motives to solve an intractable problem, cannot adopt an unconstitutional method as a tool. In AMINU TANKO v THE STATE (2009) 4 NWLR (Pt. 1131) 430 ADEREMI JSC said:
‘It cannot be denied that the CONSTITUTION (the GRUNDNORM) of this country, indeed, the Constitution of any country is supreme. It is by it (the Constitution) that the validity of any laws, rules or enactment for the governance of any part of the country will always be tested. It follows therefore that, all powers; be they legislative, executive and judicial, must ultimately be traced or predicated on the Constitution for the determination of their validity. All these three powers that I have mentioned must, and indeed, cannot be exercised inconsistently with any provisions of the Constitution. Where any of them is so exercised, it is invalid to the extent of such Inconsistency.’’
Executive Order No. 10 was made in subversion of the Nigerian Constitution, and the same should be revoked by the President.