State Governor's should adhere
to Executive Order 10 and Do the needful By
In support of the strike of the
Assemblies
1. On the 22nd of May, 2020,
President Buhari signed Executive Order 10, which seeks to establish the
financial autonomy of the legislature and judiciary at the state level.
2. This sparked a debate about
the constitutionality of the order. For those who know executive orders are
tools by which the President carries out his constitutional duties. The
President can also use executive orders to implement executive policies as long
as they do not violate any existing constitutional and/or statutory provision.
3. However, executive orders do
not constitute laws in the legislative sense. The National Assembly argues that
Lawmaking falls exclusively within the purview of the legislature. This is not quite
so in America, which presidential system we copy.
4. The objective of the
Executive Order 10, also known as the “Implementation of Financial Autonomy of
State Legislature and State Judiciary Order, 2020,” is to enforce the
implementation of the 4th Alteration to the Constitution and provide a
practical framework for the legislative and judicial arms of state governments
to have financial autonomy. The 4th Alteration, which amended Section 121(3) of
the Constitution, provides that:
“Any amount standing credit of
the – a) House of Assembly of the state, and b) Judiciary, in the Consolidated
Revenue Fund of the state shall be paid directly to the said bodies
respectively; in the case of judiciary, such amount shall be paid directly to
the Heads of the Courts concerned.”
Prior to this amendment, Section
121(3) – and the similar provision contained in Section 81 of the Constitution,
which relates to the federal government – provided autonomy for only the
judiciary. The president’s executive order authorizes the Accountant-General of
the Federation to deduct from source, the money due to the legislature and
judiciary of states from the monthly allocations of states whose executives
fail to grant financial autonomies to the other two arms of government.
The order also directed every
state government to set up a committee comprising the Commissioner of Finance,
the Accountant General of the State, a representative of the state’s Budget
Office, the Chief Registrar of the High Court, Sharia Court of Appeal and
Customary Court of Appeal as applicable, the Clerk of the House of Assembly and
the Secretary of the State Judicial Service Committee or Commission. This
committee is to be accorded legal recognition in the appropriation laws of the
states. The committee’s main task is to, where applicable, determine based on
the revenue profile of the state, a workable budget for each arm of the state
government.
The executive order also
provides that each state judiciary is to set up a state judiciary budget
committee, which would be responsible for preparing, administering and
implementing the budget of the judiciary. The committee would comprise of the
state’s Chief Judge as Chairman, the Grand Kadi of Sharia Court of Appeal or
President of Customary Court of Appeal as applicable, and two members of the
Judicial Service Committee/Commission to be appointed by the Chief Judge. The
Chief Registrar is to serve as Secretary of the committee.
5. The lack of financial
autonomy for the legislative and judicial arms of government has been a
long-standing issue, especially with respect to the judiciary, which was even
guaranteed such autonomy prior to the 4th Alteration. The Judiciary Staff Union
of Nigeria (JUSUN) instituted a similar action against the NJC, AGF and the
Attorneys-General of the states in the same year, and also claimed reliefs for
the implementation of the financial autonomy of the judiciary at both the
federal and state levels in accordance with the provisions of Sections 81(3)
and 121(3) of the 1999 Constitution. Both suits were decided in favour of the
financial autonomy of the judiciary. More than than five years later, major
parts of the judgments are still being disobeyed as state governments continue
to breach the Constitution.
6. The Federal Capital Territory
(FCT), has complied with the provisions of Section 121(3) of the Constitution.
The committee’s report ties the non-compliance to the non-availability of
uniform modalities for full compliance as obtainable at the federal level.
Thus, the report posits that a template, modeled after the framework at the
federal level, should be developed to serve as a uniform standard for
implementation by the states. This position is what eventually led to Executive
Order 10 of 2020.
The underfunding of the
Judiciary, poor and inadequate judicial infrastructure, low morale among
judicial personnel, alleged corruption in the judiciary, delays in
administration of justice and judicial service delivery, and general low
quality and poor out-put by the judiciary.”
7. Moreso, the outcome of the
state executive’s control of the purse strings is the notion that houses of
assembly are rubber stamps of state governors. Indeed, the efficiency of the
judiciary hinges on its independence, which is inextricably wedded to its
financial autonomy. The ability of state legislatures to truly provide checks
and balances for the state executives is reduced to nothing when the lawmakers
have to lobby and practice eye-service for the purpose of accessing funds that
legitimately belong to them.
8. What the President has tried
to do is to ensure the performance of the constitutional provisions by
arm-twisting the state governments. It is also fair to state that the structure
of the order provides a very practical guide for the states to implement the
constitutional provisions.
The President’s directive to the
Accountant-General of the Federation to deduct funds from the Federation Account
on behalf of state judiciaries and legislatures whose executives have denied
their financial autonomies is in breach of another constitutional provision.
Section 162(4) of the Constitution states that any amount standing to the
credit of the States in the Federation Accountshall be distributed among the
states on such terms and in such manner as may be prescribed by the National
Assembly. Hence, the President cannot withhold or direct any deductions from
the funds due to any state government in the Federation Account.
How do we then get our state
governors to obey the constitution and grant financial autonomy to their
counterparts in the judiciary and the legislature?
Do we return to the courts when
there is already a subsisting judgment in the JUSUN case that is yet to be
obeyed? Strike actions undertaken by JUSUN at different junctures since the
judgment have not yielded the desired outcome. It my firm belief that lawmakers
and the judiciaries at the state level should conjure the political will and
demand and ensure complete adherence to the constitution with regard to their
financial autonomy. The State Governor's should adhere to the order and
implement it without delay.
Funmilayo Odude, Legal
Practitioner, Damod Law Practice
Dr. John Idumange, DG, Herdadi
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