EXECUTIVE ORDER 10: REAL REASONS GOVERNORS DRAGGED BUHARI TO COURT
Tambuwal committee still working – NGF spokesman
More facts have emerged on the suit by 36 state governors before the Supreme Court, jointly challenging the contentious Executive Order 10 signed by President Muhammadu Buhari, granting financial autonomy to state judiciaries and legislatures.
The original jurisdiction of the Supreme Court in such suits is provided under Section 232 (1) of the Nigerian Constitution, 1999 thus: “The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a state, or between states if, and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
While signing the Order on May 22, President Buhari said he relied on sections 5 and 121(3) of the Nigerian Constitution, 1999. He added that the orders, which will be implemented across the states, would make them independent and more accountable in line with the report of the Presidential Implementation Committee set up to examine the implementation of financial autonomy for state legislatures and judiciaries.
In the statement released by the office of the Attorney
General of the Federation, Abubakar Malami, a Senior Advocate of Nigeria (SAN) following the accent, the Order provides thus:
“That the Accountant-General of the Federation shall, by this Order and such other orders, regulations or guidelines as may be issued by the Attorney General of the Federation and Minster of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from money allocated to any state of the Federation that fails to release allocation meant for the state legislature and judiciary in line with the financial autonomy guaranteed by Section 121(3) of the constitution of the Federal Republic of Nigeria 1999 (as amended),” the statement read.
The AGF further explains that Article 6(1) of the Order provides that “notwithstanding the provisions of this Executive Order in the first three years of its implementation, there shall be special extraordinary capital allocations for the judiciary to undertake capital development of state judiciary complexes, High Courts complexes, Sharia Court of Appeal, Customary Court of Appeal and court complexes of other courts befitting the status of courts.”
But in their originating summons before the Supreme Court, the 36 state governments averred that the Order violates the provisions of sections 6 and 81(3), and item 21(e) of the Third Schedule to the Nigerian Constitution, 1999, which they maintained obligated the Federal Government with the “responsibility for funding all capital and recurrent expenditures 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 Constitution of the Federal Republic of Nigeria.”
Section 81(3) of the Nigerian Constitution, 1999 states that, “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the state under section 6 of this constitution.”
The suit was filed on behalf of the states at the apex court by their lawyer, Austin Alegeh (SAN), leading eight other SANs and lawyers.
In the affidavit deposed to by a lawyer in the legal team, Chinweoke Onumonu, she averred that each attorney-general of a state informed her that their state governments had expended total sums in funding capital and recurrent expenditure of the state High Court and Customary Court of Appeal from May 5, 1999 to January 31, 2020.
The states further contend that the Federal Government, which will be represented by the Attorney-General of the Federation, has the constitutional responsibility to fund the recurrent and capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the states.
The states also explained that apart from salaries of judicial officers in the states, which are currently paid by the Federal Government through the National Judicial Commission (NJC), they are saddled with the responsibility of capital and recurrent expenditure, which obligation they say “has tremendous impact on the finances of the plaintiff states (36 states) and currently accounts for a significant portion of the revenue accruing to the plaintiff states on a continuous basis.”
According to them, some of their capital expenditures include court rooms, residential quarters, furniture, vehicles, generators and others, while they continue to bear recurrent expenditures in the courts, except for the salaries of judicial officers.
“In the face of continuing and persistent refusal of the defendant (Federal Government) to fulfill its constitutional duty and obligation, the plaintiffs have invoked the original jurisdiction of the Supreme Court to resolve the dispute and determine the respective
The 36 state governments averred that the Order violates the provisions of sections 6 and 81(3), and item 21(e) of the Third Schedule to the Nigerian Constitution, 1999, which they maintained obligated the Federal Government with the “responsibility for funding all capital and recurrent expenditures of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal of the states of the Federation of Nigeria
In the case of Executive Order 10, judicial autonomy is already in the constitution, but governors are observing it in the breach.
constitutional rights, duties, responsibilities and obligations of the parties under the constitution,” they averred.
Before the latest suit by the states, some lawyers had challenged the Executive Order by filing actions at the lower courts. For instance, Obioma Ezenwobodo had in June approached a Federal High Court in Abuja, seeking a declaration against the implementation of the Order.
He argued that the Order “cannot authorise or empower the Accountant-General of the Federation to deduct from source, money allocated to any state of the Federation that fails to release allocation meant for the state legislature and state judiciary in view of sections 5, 81, 121 and 315 of the Constitution of the Federal Republic of Nigerian, 1999 (as amended).”
Controversy has continued to trail the Executive Order 10 more than some others signed by the president. The other Orders are Executive One of 2017, which is to facilitate the ease of doing business; Order Two for payment of bills by government agencies; Order Three to compel ministries, departments and agencies (MDAs) to buy made in Nigeria goods; Order Four, Voluntary Assets and Income Declaration Scheme (VAIDS), which is tax on property.
Others are Executive Order Five to restrain giving work or contract outside the country; Order 6 2018 (EO6) is on preservation of assets connected with serious corruption; and Executive Order 08, Voluntary Offshore Assets Regularisation Scheme (VOARS) for non-prosecution after return of assets abroad.
A former second vice president of the Nigerian Bar Association (NBA), Onyekachi Ubani, said there was nothing wrong in the executive arm making Executive Orders to execute laws and policies of the government of the day.
“In the case of Executive Order 10, judicial autonomy is already in the constitution, but governors are observing it in the breach. So, in order to ensure uniformity, the president set up a committee that actually made the recommendation and came up with the Executive Order in order to give life and bite to the constitutional provision that is already in place,” he said
Also reacting, the Judicial
Staff Union of Nigeria (JUSUN), through its president, Marwan Mustapha Adamu, told Daily Trust on Sunday that there is no going back on the union’s demand for full autonomy for the judiciary.
Adamu’s stand differs from that of the Nigerian Governor’s Forum (NGF). The chairman of the NGF, Governor Kayode Fayemi of Ekiti State had in June announced that they had agreed with the Federal Government to postpone the implementation of the Executive Order until constitutional issues surrounding it are ironed out.
But Adamu said that neither judicial workers nor the judiciary were part of the negotiation between the governors and the
Federal Government, including the latest suit.
“They filed a matter in court. I don’t know the full content because we are not a party to it. Only the Attorney-General of the Federation was joined. For us as the JUSUN, we remain in our position of ensuring that the autonomy of the judiciary is realised,’’ he said.
Similarly, the AGF, through his spokesman, Umar Gwandu (PhD), insisted that the Executive Order was meant to be implemented across the Federation.
“If the matter is in court we will await the outcome of the proceeding,’’ he added.
When contacted, Abdulrazaque Bello-Barkindo, the head of Media and Public Affairs Department of the NGF said, “The Tambuwa Committee is still working. I don’t think I would like to comment on that. The committee continues to brief governors at every meeting. So until they conclude their briefings, I don’t think it is proper to pre-empt them.’’
When asked about the court case in which the Federal Government was said to have pushed its responsibility to cater for state High Courts, Sharia Courts of Appeal, and Customary Courts of Appeal, the NGF spokesman said he would not comment on matters that had not been discussed.
On August 19, 2020, the NGF received an update from its vice chairman, Governor Aminu Waziri Tambuwal of Sokoto State, who is leading the committee interfacing with the Office of the AttorneyGeneral of the Federation on the implementation of Executive Order 10.
A communique issued at the end of the meeting stated that the committee was currently working on a template acceptable to all parties for the implementation of financial autonomy for state legislatures and judiciaries.