Controversies have continued to trail the Supreme Court’s ruling which nullified the Executive Order 10 granting financial autonomy to both the state judiciary and legislature.
The 36 state governors had filed a suit before the Supreme Court asking it to nullify the EO 10 signed by President Muhammadu Buhari.
The originating summons was lodged at the registry of the court by a team of Senior Advocates of Nigeria (SAN) including a former President of the Nigerian Bar Association (NBA), Mr Augustine O. Alegeh, SAN on behalf of the 36 states.
Other SANs on the team were Babajide Koku, Solomon Umoh, Garba Tetengi, Tawo Eja Tawo, Olaseni Adio, Ekeme Ohvwovoriole, Paul Harris Ogbole, Aikhunegbe A. Malik and Afam Osigwe, Esq., FCIArb among others.
Issues
In the suit marked SC/CV/655/2020, the governors sought determination of two questions:
· Whether by sections 6 and 81(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), read together with Item 21(e) of the Third Schedule thereof, the Federal Government “is not constitutionally obligated and/or charged with the responsibility for funding all capital and recurrent expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the States of the Federation of Nigeria, being Courts created under Section 6 of the CFRN.”
· Whether by sections 6, 80, 81, 120 and 121 of the Constitution, it is not unlawful for the Presidential Executive Order No. 00-10 of 2020 to compel the Governors to fund State High Courts, States Sharia Courts of Appeal and Customary Courts of Appeal.
And in the event the two questions were answered in the affirmative, the governors urged the court to order President Buhari to refund all monies expended by states in funding capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of states being courts established by section 6 of the constitution.
They also sought an order “setting aside the Presidential Executive Order No. 00-10 of 2020 made by the President of the Federal Republic of Nigeria on 22nd May, 2020 on the ground that same is in violation of the express provisions of the CFRN and, therefore, unconstitutional.”
Supreme Court’s ruling
Upon hearing from both parties on the two fundamental issues raised before it, the Supreme Court invited top constitutional lawyers as amici curiae (friends of the court) to advise it on the issues.
While rendering the national service, the top legal practitioners were divided in their opinions, with some supporting the state governors while others supported President Buhari’s government on the issue.
And on Friday, the Supreme Court, like the amici curiae, in a split decision of six justices to one, declared as illegal the EO 10.
In its lead judgement delivered by Justice Mohammed Dattijo, the apex court held that President Buhari acted beyond his statutory powers in issuing the Order 10, saying it was inconsistent with the 1999 Constitution (as amended), and therefore unconstitutional, illegal, null and void.
Specifically, Justices Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro, agreed with the lead judgment.
The court, in its judgement delivered by Justice Dattijo, held that President Buhari over-stepped his bounds with the Executive Order 10, and thereby engaged in breach of the constitution and usurpation of powers of heads of other arms of government.
“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,” Justice Dattijo held.
Dissenting judgement
But a member of the panel, Justice Uwani Abba-Aji, disagreed with the lead judgement and declared that the Order was in order.
Justice Abba-Aji maintained that the EO 10 was meant to grant fiscal autonomy to both the judiciary and the legislature at the state level.
“We are not unaware of the hanky-panky and subterfuge played by state governors against the independence and financial autonomy of state judiciary.
“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who 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,” the jurist held.
SANs differ
In his reaction, a prominent South-west lawyer, Chief Adeniyi Akintola (SAN), said the Supreme Court judgement on the Executive Order was in order.
“The Supreme Court was absolutely right. And thank God for the lives of those justices. They lived up to expectation. They didn’t consider their own personal comfort. The president has good intention but good intention is not enough in a democracy. You cannot usurp the function of the legislature in the name of executive order. You cannot replace the provision of section 4 of the constitution with executive order. The power to make laws belongs the State Assemblies and National Assembly.
“The judgement has no negative implication for the both the state judiciary and the legislature. It is the inability of the executive to implement the constitution that is causing the problem. The constitution has made provision for judicial autonomy. It is separated from the other arms of government. They are not implementing it. Nonetheless, you don’t need executive order to sustain the judiciary’s independence. You don’t need it.
“Look at what the governors are doing. Many of them are also now resorting to executive orders. It is an invitation to anarchy and dictatorship. Where we copy it from, it is not used to make law. You don’t use executive orders to make laws.”
Owonikoko, SAN
Also in his submission, Mr Abiodun Jelili Owonikoko ((SAN), said the judgement did not in any way open any fresh loophole for governors to exploit.
“I believe the judgment has no negative impact on the autonomy of the judiciary because from day one, the instrument was a non-starter on the very basic that what it sought to do are beyond the provisions of section 121(3) of the constitution as amended by the Fourth Alteration Act No 4 of 2017. What the Executive Order did was to supplant and expand the provisions of the constitution on how to operationalise section 121(3) that has to do with financial autonomy of the legislature and the judiciary at the state level.
“But as a political move, the Federal Government should still be vindicated that the decision of Mr President to issue that executive order spurred the populace and other role actors to take on their own responsibility for operationalising section 121(3). And what do I mean? In the interval between the executive order and the judgment of the Supreme Court, a lot has happened. The Governor of Lagos State has been compelled by public opinion, pressures from relevant stakeholders like the NBA, JUSUN, and even civil society organisations that have commitment to independent and properly funded judiciary to respond by each of them proceeding now to initiate and pass into law financial autonomy or what they called fund management bills in various states.”
Sagay, SAN
But another legal luminary, Professor Itse Sagay (SAN) differed, saying he was in total agreement with the minority judgement.
Sagay said: “I just read the judgement. I was out of the country. I just want to say broadly that I agree with Justice Abba-Aji, the minority judgement. The reason is that the constitution makes it clear that the legislative and judicial branches of state government are to get specific sums of money from what goes to the state. And if the state governors are not making them to have it, all that the executive order has done is to facilitate the implementation of the constitution. And that is what executive orders are supposed to do. So, the Federal Government was right and I agree with the minority judgment entirely.
“But I agree with the majority judgment where they say that states do not deserve the fund that they have spent on court buildings and other infrastructural expenditure because that is their duty anyway. It is not the duty of the Federal Government. That was what really upset me. It is shameful that state governors could do this and sort of totally defeat everything they have said about independence of state from the control of the Federal Government. If you are asking federal government to be funding everything you are doing, of course, he who pays the piper dictates the tune. So, it is so contradictory. It is very shameful.”
Okutepa, SAN
Toeing Sagay’s line of thought, Mr Jibrin Samuel Okutepa (SAN) said the majority judgement of the apex bench missed a golden opportunity to make a policy statement on state governors’ failure to obey court order and provisions of the constitution regarding the financial autonomy of the judiciary.
“The Supreme Court has spoken. What again can I say? Nevertheless, my viewpoint is that the Supreme Court, with the greatest respect, the majority judgment missed a golden opportunity of making a policy statement and find a way out of the insubordination and insolence of the state governors who have refused to pay absolute obedience and fidelity to the constitutional provision that makes the judiciary and the legislature autonomous organs of government.
“Yes, it is true that unlike American constitution, there is no provision in our constitution that empowers the president to issue Executive Order, but when you look at the provision of Section 5 of the constitution very clearly, it gives the president the executive powers of the federation and the president being the custodian of the Nigerian constitution is under statutory and constitutional duty to ensure that Nigerian constitution is respected and obeyed,” Okutepa argued.
Okutepa , however, added that as a lawyer, he agreed that “the judgement of the Supreme Court is the majority judgment. There is nothing anybody can do about it as we are bound by it. My respective view therefore is in support of what Prof Ernest Ojukwu, former D G of the Nigerian Law School, said to the effect that the minority judgment of Justice Abba Aji represents a solution to the logjam of the insubordination of the governors of the various states who have refused to give autonomy to the state judiciary and the state houses of assembly. The president was only being carried away by the patriotic and nationalistic view to ensure that the provisions of the constitution are respected.”
On way out, the silk said: “…the solution will also be to go back to judicial enforcement of judicial order. Mark you, there is a judgement obtained by JUSUN, that have not been enforced. I have always been advocating that the Judicial Staff Union of Nigeria can go to court and enforce the judgment by seeking an order compelling the AGF and the accountant general of the federation to deduct their money at source and pay over to them, particularly now that we have the opportunity and the privilege of a president who wants the enforcement of this order, the step which he took. The only way now is to go back to the judiciary by another method either by way of enforcement or by a way of mandamus.”
Kalu (SAN)
Also in yet another reaction, a former Attorney-General and Commissioner for Justice in Abia state, Prof Awa Kalu (SAN) hailed the Supreme Court’s decision, saying enforcement of judicial autonomy is not in the purview of the federal government.
He said: “The Supreme Court is the final court. Their infallibility lies in the finality of the court. Once they have decided, there is nowhere to go. They have decided. And it is the law. I had written an opinion on the Executive Order 10 when it was issued that it was unconstitutional. What the Supreme Court has done is purely a confirmation of my opinion.
“In the opinion, I said my source of concern was to confirm that the executive orders are not sources of legislation. This is because, the executive, if you look at distribution of powers under the constitution, simply executes the laws as well as decisions of courts. But you will not use an executive order to legislate. That was what I said at the time and I stand by it.
“Judicial autonomy is not within the purview of the federal government to enforce. It is a brilliant idea stated in the constitution. But within the autonomy of the state, those elements that enforce obedience to the law and the constitution within the state should act. When you have JUSUN for instance, it is a trade union, a major pressure group. So they should continue their discussion with state governments to ensure the maintenance and sustenance of the autonomy of the judiciary.”
CISLAC, others
Similarly, the Civil Society Organisations (CSOs) gave separate reactions to the apex court’s decision.
In his view, Executive Director Civil Society Legislative and Advocacy Centre (CISLAC) and Transparency International Nigeria Auwal Rafsanjani said the judgement never came as a surprise.
He said: “We all know that it is important to have a judicial autonomy, to have a state legislature autonomy and local government to be allowed to function with fully autonomy.
“However, what I expected from Mr President is to engage with State, Local government and other stakeholders on the democratic processes rather than this military decree which has now been challenged by the Supreme Court.
“It clearly shows that he was not properly advised. We want the local government to be more autonomous because the grassroots democracy has been tampered with and it has been affected.”
Yaiga Africa
But the Board member, Yiaga Africa, Ezenwa Nwangwu, said the unfortunate judicial closure on the long drawn struggle for even its autonomy can be reignited through the window of the ongoing constitutional amendment.
He said many of the people “speaking on restructuring don’t believe in it, a few grandstand or don’t even understand it.”
He said the vicious control of resources and ambush of the other organs of government especially by the governors would require more than executive order.
He further said it will need a mobilised citizenry to support the desire of the president take off the stranglehold of the czars in the states on the finances of judiciary and legislature.
Lakemfa
In his reaction, a former Secretary General, Organisation of African Trade Union Unity (OATUU), Owei Lakemfa said the twin cases of “federalism and impunity in our body polity” were playing out.
In his view, Supreme Court was only concerned about the danger of allowing the Presidency “acquire more imperial powers by dictating to the states in the guise of enforcing the constitution.”
“On the other hand is the impunity of state governments in not implementing the letters and spirit of the constitution as regards the separation of powers that would ensure the independence of the legislature and judiciary.
“This is a no win situation for the Nigerian people who are played around like football by the political class.
“The solution is the enlightenment, mobilisation and empowerment of the people to exercise their sovereignty over all powers at whatever level so that all leaders, at whatever level, can be called to order,” he said.
Also, the Convener Take Back Nigeria Movement and Co- Convener, Say No Campaign, Jaiye Gaskiya explained that what the Supreme Court was to rule that the executive had no such power and voided the Executive Order.
“However, what the order sought to enforce are provisions of the constitution on which the courts had earlier made pronouncements affirming the constitutional guarantee of legislative and judicial autonomy, and ordering the the budgets of the two arms should be first line charge and should be appropriated directly to the respective arms.
“What should be done now is for the state judiciary and the legislatures to approach the Supreme Court directly to seek enforcement of the constitutional provisions, and the relevant rulings of the courts, include seeking an order to direct the Federation account, and or the federal government to deduct such appropriations at source and credit same to the respective judiciaries and legislatures of the states; if the states failed to comply with the ruling of the supreme court on the matter,” he said.
‘EO 10 unnecessary’
Also speaking on the issue, a political analyst, Mr Jide Ojo, said Executive Order 10 was highly unnecessary, describing the Supreme Court Judgement as an informal way to restructure the country.
Ojo told one of or correspondents that “Executive order 10 is just an enabled law, it is highly unnecessary. The President did that to fast track the implementation of the financial economy to states’ judiciary and legislature.
“But the constitution which is the supreme that is the grand norm of all legislation in Nigeria had already stated incontrovertibly that there should be financial autonomy to state judiciary and legislature.”
The political analyst noted that “a framework was agreed upon in 2021 by Nigeria Governors Forum, and it is what many of the states are now cuing into to implement financial economy for their state assembly and judiciary.
“What the governors challenged was the arbitrariness of being coerced by the federal government to implement something which they felt was executive recklessness. And 6 out of 7 Judges of the Supreme Court agreed with the governors that, yes executive order 10 was highly unnecessary.”
“It also shows that the governors are not mere appendices of the federal government or that the state is not just a mere appendices but they are independent, and cannot be dictated to by the state.
“This also has arisen over the issue of Value Added Tax, it has also arisen over the issue of Police Equipment Trust Fund which Rivers State Government Challenged.
“I think is just the restructuring we are talking about that is gradually coming out to play. Restructuring can take any form, it can take the form of legislation, it can also take the form of judicial pronouncement. And now we know that the federal government cannot dictate to the state as to the way and manner they should govern their territories.”
Ojo who said the outcome was good for Nigeria democracy, expressing the hope that in going forward, “the federal government would have learnt the limits of its power under this situation.”
