by Kunle Olasanmi |
Not very long ago, President Muhammadu Buhari signed into law the Presidential Executive Order No. 10 of 2020, which give Financial Autonomy to the state Legislature and Judiciary.
The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami SAN, in his clarification of the order said it was signed based on the power vested on the president under “Section 5 of the 1999 Constitution (as Amended).
The Order, according to him, 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.
The AGF said, “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 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).”
In 2018, President Buhari, specifically, 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. Not only that, the funding of the Judiciary in the states will be directly from the Consolidated Revenue fund of each state who pays directly to the head of the courts.
But in a twist of fate, the 36 state governors of the federation had in September approached the Supreme Court and asked it to declare the Presidential Executive Order No. 00-10 of 2020 unconstitutional.
The suit was filed 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.
They named the Attorney General of the Federation, Malami as the sole respondent in the suit.
In the said suit, the 36 states held 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 argued further that the order was a clear violation of sections 6 and 8(3) of 1999 Constitution, which made 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’’.
“The President cannot jettison the clear provisions of the Constitution which recognize the autonomy of the states, and arrogate to himself the power for the actualization of the independence of the State legislature and state judiciary, by an unconstitutional executive order.
Although it has been argued that the Executive Order No. 10 of 2020 did not grant financial independence to the states’ legislature and the judiciary.
While justifying their claims, the stakeholders insisted that the financial autonomy of the judiciary and legislature at both the Federal and State levels are already provided for by the Constitution.
They nevertheless contended, it has been breached by federal and state Executives with the Judiciary having no control over funds.
That according to them makes the arm of government the most vulnerable and the biggest victim at both the Federal and State levels.
While reacting to the development, a lawyer, Emmanuel Ekwe noted that the Executive Order number 10 signed into law by President President Muhammadu Buhari was based on the power vested in him as the President of the Federal Republic of Nigeria under Section 5 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
According to Ekwe, the executive and maintenance of the Constitution, laws made by the National Assembly (including but not limited to Section 121 (3) of the 1999 Constitution, which guarantee financial autonomy of the state legislature and state judiciary.
He regretted that the move will add little or nothing to efforts to get Nigeria on its feet.
He said, “My postulation is supported by the fact that The Executive Order is a small legislation that does not change much. If president Buhari is dealing with constitutional issues like these, this is the time to summon a constitutional conference of genuine representatives of the people because the 1999 Constitution is dead.
“It is an anathema. You cannot have a unitary federal government. This can be done in three months and the decision of the conference will abrogate the 1999 Constitution and save the country.”