EXECUTIVE ORDER 10 AND THE GOVERNORS

The executive order is in excess of the president’s constitutional powers
THISDAY is not surprised by the Supreme Court judgement that has annulled President Muhammadu Buhari’s Executive Order 10, which seeks to compel the 36 states of the federation to implement the financial autonomy granted to the legislature and judiciary by the 1999 Constitution as altered. The quashed order, ‘Implementation of financial autonomy for state legislature and judiciary 2020’, had provided that in the event of failure of any state government to release the allocations due their legislature or judiciary, the Accountant General of the Federation should deduct the allocation from source and pay it to the legislature and the judiciary in the defaulting states.

In a split judgement delivered in a suit by the 36 state governors last Friday, the apex court affirmed that President Buhari exceeded his powers by initiating and signing Executive Order 10. “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 states and the federal government,” the court ruled in its lead judgement read by Justice Dattijo Muhammad. “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.”

In the THISDAY editorial of 2nd June 2020, we predicted this outcome: “We agree with the principle behind Executive Order 10 signed by the president…But there are also contending issues. The provision which empowers the Accountant General of the Federation to ‘authorise the deduction from 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)’ is contentious. Notwithstanding Section 5 of the Constitution which confers on the president powers to uphold and defend the Constitution, the right of states to their own shares of the funds in the federation account by virtue of section 162 cannot be hindered by an executive order….”

However, it is important to understand that the president was pushed into what turned out to be self-help by the recalcitrant disposition of the governors. As we argued in the past, in a country where the rule of law is supreme, there would have been no need for any executive order to compel governors to comply with a constitution they all swore to uphold. The import of Executive Order 10 was to ensure that governors allow the houses of assembly and judiciary in their states to operate independently as provided by the 1999 constitution as altered.

That many governors believe their powers come without accountability is at the root of this crisis. And with that, both the judiciary and legislature have been rendered prostrate in a majority of the 36 states. Lack of financial autonomy by these two arms of government accounts for this situation. That is what Executive Order 10 sought to resolve. The lone dissenting judgement of Justice Uwani Abba-Aji makes this clear. “The action of the president is justifiable taking into consideration the hanky-panky subterfuge played by state governors against the independence and financial autonomy of state judiciary,” she said. “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.”

Meanwhile, this judgment has not nullified the Constitutional provision on the first line charge. What it says is that the president lacked the powers to issue Executive Order 10. That has, however, thrown up a fundamental question: If governors can blatantly refuse to obey the constitution, as it is the case on this matter, how do the affected parties seek redress?

Overall, we hope the governors will not see this judgement as a victory for their lawlessness. We are encouraged by the fact that some have indeed complied with the law in their states. Those that have not should do the needful by implementing the provision of the constitution as interpreted by the courts in an earlier case on the subject matter.