Nullification of Executive Order 10: No Winner, No Loser, Say SANs

Alex Enumah in Abuja

As reactions continue to trail Friday’s judgment of the Supreme Court nullifying President Muhhamadu Buhari”s Executive Order 10 (E10), which directed the implementation of financial autonomy for the states’ judiciary and legislature, senior lawyers have described the judgment as one that was neither won nor lost by parties in the suit.

Senior lawyers, who spoke on the implications of the judgment, were of the opinion that it is the constitution that is rather the winner in the legal battle between the federal and the state governments.

The apex court had in a split decision of six-to-one, held that the president exceeded his powers when he initiated the E10 to compel the governors of the 36 states to implement the constitutional provisions on financial autonomy of the states’ judiciary and legislature.

In his apparent bid to deepen democracy in the country, and in response to the agitations of judiciary workers, President Buhari had in 2020 signed into law the Executive Order 10 to compel the states to implement the provisions of Section 121(3) of the 1999 Constitution.

Specifically, E10 directs the Accountant-General of the Federation to deduct from the allocations due to a state from the Federation Account, any sums appropriated for the legislature or judiciary of that state, which the state fails to release to its legislature or judiciary as the case may be and to pay the funds directly to the state’s legislature or judiciary concerned.

The move it was believed would curtail the alleged dominance of the state executive over the two other arms of government.

But the states through their Attorneys-General swiftly approached the court to challenge the legality of the presidential order, insisting that it was unconstitutional and should be voided.
However, the seven-man panel of justices of the apex court, which heard the matter held divergent positions leading to split decisions on the two issues raised before the court.

Delivering judgment in the suit on Friday, six justices of the apex court agreed with the position of the plaintiffs that President Buhari exceeded his powers by initiating and signing the law.

According to the majority decision, the Executive Order 10 was inconsistent with the 1999 Constitution and therefore unconstitutional, illegal, null and void and of no effect whatsoever.
Those who held this view include: Justices Muhammed Dattijo, Centus Nweze, Ejembi Eko, Adamu Jairo, Helen Ogunwunmiju and Emmanuel Agim.

The court subsequently voided E10 signed into law by President Buhari in 2020.
Reacting to the Supreme Court decision on the The Morning Show, a programme of ARISE NEWS Channel, Mr. Abiodun Owonikoko (SAN), was emphatic that there was no winner or loser in the legal contest between the federal government and the states. “It is not anybody”s loss, it is the constitution that has won,” he said.

According to him, although the judgment came in form of anti-climax, the federal government should be commended for making the various state government activate the provisions of Section 121(3) of the 1999 Constitution.

“Ultimately, the executive arm of government has achieved its objective, the judiciary vindicated,” since the Nigeria Governors’ Forum has agreed with both the judiciary and the federal government to implement the provisions by enacting fund management law for the purpose of the independence of the legislature and the judiciary.

Responding to questions whether the judiciary did not enter judgment foreclosing its own independence when it nullified the E10 which appeared to be in its favour, Owonikoko replied, “The court has not ruled against itself because before the executive order, it has been a matter of executive discretion by the various states’ government, how much and in what manner monies due to the other two arms of government are released whereas the Constitution at that time expressly by the amendment made in 2017, took that discretion out of the hands of the governors”.

He explained that because most of the state legislators were in the pockets of the governors they were unable to assert themselves, adding that the constitution itself was not a self-executing instrument, thereby necessitating the need for some form of framework by which one can judge compliance with Section 121(3).

“Now, the governors by assenting to the various fund management bills that were initiated by consent of all of them at the level of the governors’ forum can no longer exercise those powers because there are bodies set up which will start with budget preparation, budget allocation and then appropriation.

“Once the appropriation is done in form of financial bill in the state houses of assembly, the governor has no say anymore. Whatever is due from the consolidated revenue to it or the other arms of government go directly from the accountant general of the state to their account’s management bodies. In the court, the heads of the courts and the chief registrar manage the finances of the courts.

Also reacting, another senior lawyer, Reverend John Baiyeshea (SAN), noted that the simple implication of the judgment is that the constitutional provisions on the subject matter shall prevail.
According to him, Buhari had initiated E10 “out of genuine concern (as a result of agitations and long strike actions by JUSUN for the enforcement/implementation of same).

He however, agreed with the majority judgment that since the Constitution has covered the field, the Executive Order 10 made by the President becomes unnecessary.

“Actually, the issue of autonomy of the judiciary as provided for in the Constitution is with regards to control of the funds budgeted for the Judiciary. State governors over the years have always hijacked the funds of the judiciary and they will now be giving pittance to judiciary as if doing them a favour.

“The governors derive enormous pleasure in exercising power to control the judiciary. The judiciary is never in charge of their affairs. If you cannot control your fund, you are not independent.

“So, it is all about independence of the judiciary. The same governors who have been frustrating the full implementation of the autonomy for the Judiciary ‘rushed’ to Court to challenge Executive Order 10, which the President made to strengthen the independence of the Judiciary.
For Mr. Dayo Akinlaja (SAN), “the plain implication of it is that the EO10 is now non-existent in the eye of the law and not binding on the states.

“It is a decision of the apex court of the land against which there is no appeal. In the circumstance, the states are at liberty to continue with the issue of funding the judicial sector as they may choose or consider appropriate”.
He however, noted that the only remedy lies with the amendment of the Constitution. “Until then, the status quo continue,” he added.