Nigeria: Supreme Court Annuls Buhari’s Order 10 on Financial Autonomy for States’ Judiciary and Legislature

Efforts by President Muhammadu Buhari to ensure independence of the judicial and legislative arms of government at the state levels suffered a major setback at the Supreme Court on Friday following the invalidation of his Executive Order 10 signed in June 2020.

The Order cited as “the implementation of financial autonomy for state legislature and judiciary 2020”, has a key provision which gives the Accountant-General of the Federation the power 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 Supreme Court in a split Judgment delivered in a suit by the 36 state governors challenging the order of the president voided the Order 10 on the grounds that the president exceeded his powers when he initiated the Order to compel the governors to implement the constitutional provisions on financial autonomy for states’ judiciary and legislature.

The apex court said by the Order, President Buhari usurped the powers of heads of other arms of government.

Miffed by the Presidential Order, the 36 states of the federation, had through their attorneys-general, filed a suit on September 17, 2020, at the apex court to challenge the constitutionality of the Executive Order 10, as well as for the court to make an order compelling the federal government to take up funding of capital projects of superior courts in the states.

The superior courts listed were the High Courts, Sharia Court of Appeal and Customary Court of Appeal.

Delivering judgment in the suit, six justices of the apex court agreed with the position of the plaintiffs that President Buhari exceeded his powers by initiating and signing Order 10.

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 lead Judgment written by Mohammed held that the contentious Executive Order 10 violated the provisions of the 1999 Construction which clearly stipulates the functions and powers of heads of each arm of the 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 states 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 Mohammed said in the lead majority judgment.

However, in her dissenting judgment, Justice Abba-Aji, held that President Buhari was in order as the Executive Order 10 was aimed at enhancing the provisions of the 1999 Constitution.

According to her, “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.

“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,”Abaa-Aji held.

Meanwhile, on the demand by the plaintiffs that the defendant be ordered to assume responsibility of funding of capital projects of the three courts, four out of the justices however held that the federal government cannot bear responsibility of current and capital expenditures of the affected courts.

The Justices, who included Mohammed, Nweze, Aba-aAji and Ogunwunmiju, also refused to grant reliefs of the states for payment of N66 billion being expenses incurred so far on capital projects for the three courts in their respective states.

The four Justices upheld the opposition of the Attorney General of the Federation (AGF) Abubakar Malami, SAN, and two other senior lawyers, Mahmud Magaji, SAN, and Musibau Adetunmbi, SAN, on the issue, which submitted that capital projects for the three courts should be funded by the states and not by the federal government.

The apex court’s Justices specifically agreed with Adetunmbi, SAN, who was one of the amici curiae, that the 1999 Constitution has sufficiently provided the manner the federal and states should fund their courts.

They further upheld his submission that part of the load that the Constitution wants the federal government to carry is narrowed down in Section 84 (7), while Section 121 also narrows down the load it wants the state governments to carry.

Adetunmbi’s opposition against the Executive Order 10 and his prayer that it should be declared illegal, unconstitutional, voided and set aside was also upheld.

Alex Enumah in Abuja

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