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Executive Order 10: ‘President lacks power to make such proclamation’

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In reaction to the Executive Order 10 recently signed by President Muhammadu Buhari, granting autonomy to the local government, state legislature and judiciary, renowned lawyer, Chief Awa U. Kalu (SAN), a former attorney general and commissioner for Justice in Abia State, in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, explained that the President lacks the power to make such proclamation, saying he is only constitutionally limited to federal legislature and judiciary.

Does the President have the power to issue such an Order on a constitutional matter like that as if it were a decree?
I think it is necessary to give a little clarification as to the extent of the executive powers vested in the President. If you look at the Executive Order No. 10, it refers to the power vested in the President of the Federal Republic of Nigeria “…under Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which extends to the execution and maintenance of the Constitution…”

It is also necessary to indicate that Section 5, which the Executive Order refers to consists of five subsections, but in order to answer your question, it is advisable to refer to subsections 5(1)(a) and 5(1) (b), as well as subsections 5 (2) (a) and 5 (2) (b).

While Section 5(1) (a) vests “the executive powers of the federation” in the President, Section 5 (2) (a) vests the executive powers of the state “in the Governor of that State.”

You will find that the executive power vested in the President, just as the executive power vested in the Governor extends to the execution and maintenance of the constitution.

The layman may be interested in asking how the President and a Governor are required to execute the same constitution. The answer is plain and simple and rests on the fact that when Nigeria became independent, as well as when it turned to a republic, each of the constituent regions had its own constitution and the federation also had a constitution.

However, the 1979 Constitution, just like the current constitution, i.e. the 1999 Constitution, is a monolith. This is a roundabout way of saying that the constitution, as a single document, makes provisions that affect the powers of the President, as well as of Governors of the states.

The only limitation on the executive powers vested in a state is to be found in Section 5 (3) to the extent that such executive power “shall be so exercised as not to impede or prejudice the exercise of the executive powers of the federation or to endanger any asset or investment of the government of the federation in that state; or to endanger the continuance of a federal government in Nigeria.”

The answer to your question, therefore, and without any hesitation, is that the President lacks the power to seek to implement any constitutional provision for the control of state funds accruing to either a state legislature or a state judiciary. It is immaterial that Governors of some states have at the moment not taken steps to enforce such provisions.

What does the Order portend for state and local government administration in Nigeria?
It has to be understood that we have a constitution that recognises governments at three levels, i.e. the Federal Government, State Governments (as well as the Federal Capital Territory Administration) and Local Government. It is my belief that the Federal Government, acting within its scope and authority, ought not to asphyxiate either the State Governments or the Local Governments at their levels.

In addition, in terms of constitutionalism, the Federal Government must be the shining star, just as the State Governments ought to illuminate the path of constitutionalism for Local Governments. If you are a powerful landowner, you must take extraordinary care not to encroach on the land of your less powerful neighbour.
How implementable is this Order?
 
The Order can only be implemented by acquiescence of the state governors and either now or in the future, it will generate friction and tension between states and either their Houses of Assembly or the Judiciary, as the case may be.

It is necessary to draw attention to the authoritative decision of the Supreme Court in the relatively old case of Attorney General of Bendel State Vs. Attorney General of the Federation & 22 Ors, a judgment delivered on October 2, 1981, in which the Supreme Court advised citizens to scrupulously scrutinise the laws by which they are governed, even if they are beneficiaries under such laws, in order to ensure “that the laws are lawful.”

So, those who will benefit from Executive Order No. 10 should be careful.

Do you think the governors would readily accept?
I think the answer to your question will depend on the governors. Luckily, all the governors belong to the Nigeria Governors Forum (NGF) at the national level and also the governors forum at zonal level and with eminent lawyers in their midst, I can only make an educated guess, which is that the governors have the capacity to determine what is right and what is wrong and will make a decision that will guide those who will succeed them.

Does the matter not involve constitutional amendment?
The Executive Order itself is said to arise from an amended part of the constitution and I am not comfortable with generous amendments to the constitution.

I was trained to believe that a constitution is an enduring document meant to serve even generations yet unborn and that in order to ensure a lasting legacy, most written constitutions are designed to be rigid, in the sense that the process of amendment is one that is difficult to achieve.

To that extent, I believe we should not attempt a constitutional amendment when ordinary legislation can achieve some results that are meant to ensure good governance. At any rate, the constitution as it is (with regard to subject matter Executive Order No. 10) is clear enough and is plain and is not rocket science.

I believe that making available funds to the state legislature, as well as state judiciary is a laudable objective that can be achieved without rancour or by a maneuver, which is not within the contemplation of the constitution itself.

Would the Order accelerate development at the local government level?
My understanding is that the Executive Order relates to the administration and distribution of funds to the legislative and judicial branches at the state level.

Local governments can only benefit from such distribution if and only if judicial decisions, as well as legislative action, which affect grassroots development arise.

What are the impediments to its implementation?
What I see as the inevitable impediment is its inherent weakness, namely: that each governor will be constantly reminded that the source of the directive is unlawful. All heads of courts, as well as speakers of the various houses of the assembly will inherently understand the weaknesses I have spoken about.

My recommendation is that the President of the Federal Republic of Nigeria ought to create a forum, where the state Governors will be persuaded or coaxed to accept their constitutional responsibilities towards their respective State judiciaries, as well as the legislature. In the long run, this is the road to travel.

In addition, I need to quote from another long-standing decision-Attorney General, Ogun State Vs. Attorney Generation of the Federation (1982) 166- where Udo Udoma (JSC), of blessed memory, stated as follows: “…I am satisfied that neither the National Assembly nor the President has the constitutional power to impose any new duty on the government of the state.

“Such an imposition would normally meet with resentment and refusal to perform for the enforcement of which there is no constitutional sanction.”

The duty which the President seeks to impose is already in the constitution and all that has to happen is for state legislatures, as well as state judiciaries to find a common ground with the governors of those states where implementation is required.

 


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