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Debating Supreme Court judgement on Executive Order 10

By Ameh Ochojila, Abuja 
15 November 2022   |   3:04 am
On February 11, the Supreme Court in a split decision of six Justices to one, nullified Executive Order 10 initiated by President Muhammadu Buhari to grant financial autonomy to State Judiciary and Legislature.

Maliki

On February 11, the Supreme Court in a split decision of six Justices to one, nullified Executive Order 10 initiated by President Muhammadu Buhari to grant financial autonomy to State Judiciary and Legislature.

  
The apex court had held that Executive Order 10 was inconsistent with the 1999 Constitution and therefore unconstitutional, illegal, null and void and of no effect whatsoever.
  
In a lead judgment by Justice Muhammed Dattijo in the suit filed by the 36 states against the Federal Government, the court rejected the request of the 36 state governments for an order to compel the Federal Government to take up funding of capital projects for State High Courts, Sharia Court of Appeal and Customary Court of Appeal.
   
The Justices also refused to grant an order sought by the 36 state governors to compel the Federal Government to pay them N66 billion, an amount they claimed to have so far spent on capital projects for the three courts in their respective states.
   
The six Justices led by Dattijo vehemently agreed that the contentious Executive Order 10 violated the provisions of the 1999 Construction, which stipulates the functions and powers of heads of each arm of the government.
   
Recall that the governors of the 36 states of the Federation had kicked against the Executive Order as an infringement on their rights under the 1999 Constitution. 
   
They had approached the Court for declaration that the Executive Order 10, is unconstitutional and illegal and for the court to compel the Federal Government to take up funding of capital projects for State High Courts, Sharia Court of Appeal and Customary Court of Appeal, and also to refund to the 36 states a sum of N66 billion, being the amount which they claimed to have spent on capital projects for the three courts in their respective states. 
   
In its wisdom, the Supreme Court, in addition to the constituted panel of seven Justices, also invited five Senior Advocates of Nigeria (SANs) as amici curiae (friends of the Court) for their advice. 
   
The panel, after painstakingly looking at the argument of the parties, resolved that Executive Order 10 is ultra vires, unconstitutional, illegal, and therefore null, void and of no effect whatsoever. They also went further to state that the 1999 Constitution already expressly spells out the responsibility of the states and the Federal Government concerning the funding of the State High Courts, Sharia Court of Appeal and the Customary Court of Appeal, even if it is silent on capital projects.
   
The effect of the Supreme Court judgement is that it had rejected the request of the Attorney General of Abia State and 35 others with regard to compelling the Federal Government to take up funding of capital projects for State High Courts, Sharia Court of Appeal and Customary Court of Appeal, and (c) refund to the 36 states a sum of N66 billion, being the amount which they claimed to have spent on capital projects for the three courts in their respective states. 
   
Legal analysts said the Supreme Court has taken a technical view of the matter and offered a strict interpretation of the Constitution, the powers of the President, the relationship between the states, and the limits of the Federal Government in the exercise of its powers as spelt out in the 1999 Constitution. 
   
To some lawyers, the apex court has only looked at the constitutional roles assigned to states, and the Federal Government and their actors, without considering that it may promote hardship on judicial workers. 
   
An Abuja-based lawyer, Isaac Attah Ogezi explained that Executive orders are generally quasi-legislation made by President Muhammadu Buhari, which are enforceable. 
   
He said the conflict between the Federal Government and the state governors stemmed from their disagreement on judicial and legislative autonomy, which the FG sought to enforce at the state level, although it is already granted by the Constitution, but most state governors unfortunately are paying lip service to it, much to the disadvantage of the other arms of government at the state level. 
   
He contended that the Executive Order 10 was well intentioned, as it aimed at enforcing the separation of powers via financial autonomy as constitutionally granted to the state judiciary and legislature away from the whims and caprices of state executives. 
  
However, he said, the question the Supreme Court addressed in the judgement was whether the Federal Executive Council had the requisite or constitutional powers to make such a quasi-legislative order called Executive Order 10 in the first place. “Did it not amount to a usurpation of the legislative power of the National Assembly as well as executive powers of State Governors in a federal system of government such as Nigeria? As much as I do not like this unpopular decision, I think the Supreme Court deserves to be commended for its intrepidity in taking this position in line with the legal Latin maxim, ‘fiat Justicia ruat coelum’, meaning ‘Justice must be done even if the heavens will fall.’ Given the recent majority decision of the apex court, Executive Order 10 is illegal, null and void and thus set aside. That remains the law now until the Supreme Court reverses itself in a future judgment. 
   
“The effect of this unsavoury decision is a return to status quo ante, which will bring more hardship to the staff of state judiciary and legislature. With utmost humility to their learned Lordships, I find the dissenting judgment of their learned brother, Justice Uwani Abba-Aji, more persuasive, curative and palatable. I agree with him that the presidential Executive Order 10 no matter its breaches or lapses is geared towards facilitating the implementation of the constitutional provisions of fiscal autonomy for state judiciary and legislature.
   
“It is my humble submission that where there are conflicts among the arms of government at the state level, which are intractable, the Federal Government should be able to play the role of an unbiased or disinterested umpire or a benign elder brother to step in with a view to enforcing the law or constitutional provisions with or without executive orders.”
   
He held that the constitutional provisions for judicial and legislative autonomy if not enforced by the Federal Government armed with executive orders, it is not expected that state governors should execute what they perceive is antithetical to their vested and unpatriotic interests.
   
“I am afraid that this brave albeit unpopular decision has cast more shadows on these grey areas of our constitution as a federation and has given the state governors the upper hand in this fight to make state judiciaries and legislatures independent of the executive, ‘’ the lawyer suggested.  
   
Another legal practitioner, Umahi Ekwe agrees with the judgment. He said the Executive Order 10 as set aside by the apex court was an excellent demonstration of the principle of checks and balances as enshrined in Sections four, five and six of the Constitution.
   
He argued that even if states refused to comply with constitutional provisions guaranteeing fiscal autonomy of the state judiciary and legislature, it was not for the President to dish out such an executive order that contravenes the federating order when there are courts. 
   
“The decision of the apex court in no small way strengthened the tone for judicial independence and legislative effectiveness at the state level; two major ingredients of democratic consolidation whose deficit have hampered the growth of democracy at the subnational level of the country,” he said.
   
According to him, the essence of the Executive Order was to operationalise the constitutional provision, which requires that the heads of courts and the legislature are completely independent of the executive.
   
A human rights lawyer, Maliki Sylvanus, said from the nature of the judgment delivered by the Supreme Court, it is not difficult to see that what the apex court has done was to take a face value interpretation of the Constitution, in respect of the powers of the President, the relationship between states and the Federal Government, and the limits in exercise of its powers as spelt out in the 1999 Constitution.

“It is my humble submission that the decision of the Supreme Court was in line with the provision of the Constitution, where as the Executive Order 10, though with good intention in granting financial autonomy to the various arms of government, is null and void and the same was correctly set aside,” he declared.
   
He suggested to the National Assembly to amend the Constitution to introduce the intentions of the Executive Order 10 through the amendment. Also, the burden, he noted, rests on the 36 Houses of Assembly to invoke their powers of checks and balances whenever the Governor acts beyond his powers or fails to give to them the required funding within time. The powers of checks and balances is constitutional and should be exercised pending an amendment to the Constitution that grants the other arms of government the required autonomy.
   
Akintayo Balogun, also a lawyer, argued: “The Federal Government has nothing to benefit from allocating the funds of the various arms or tiers of government directly without recourse state to executives. It was simply done in the interest of states. It was an opportunity for the Supreme Court Justices to set the record straight and not give a literal interpretation to the Constitution.
   
“This was the opportunity the court had to liberate itself from the tyranny of State Governors who have suddenly realised that there is supremacy in the Constitution when it is in their favour, but had variously done acts that undermine the supremacy of the Constitution.

   
“This was the opportunity the courts had to relieve the judiciary of the “Yes Sir, Yes Sir” syndrome under State Governors. But it appears the court chose to throw away this position in favour of the Governors.”
   
He stated that he would continue to identify with the position taken by the minority decision. “I would stand firmly with the minority decision of the Supreme Court as stated by Hon. Justice Abba-Aji. 
Prof. Itse Sagay (SAN), also agreed with Justice Abba-Aji’s minority judgment. 
  
“The reason is that the Constitution makes it clear that the legislative and judicial branches of states are to get specific sums of money from what goes to the state. And if the state governors are not giving it to them, all that the Executive Order had done was to facilitate the implementation of the Constitution. 
   
“That is what executive orders are supposed to do. So, the Federal Government was right and I agree with the minority judgment entirely,” he said. 
 According to the lawyer, the Federal Government had introduced Executive Order 10 to correct the wrong being committed by State Governors. It is unfortunate that the only impediment against the attempt by the Federal Government to enforce the fiscal autonomy of the arms and tiers of government is the law itself. 
   
“We hope an opportunity can arise for the judiciary to correct this position so its autonomy can be fully entrenched,” the lawyer enthused.