Supreme Court throws out Buhari’s Executive Order 10

• HURIWA Lauds Judgment
• It’s Pyrrhic Victory, Setback – Lawyers
• Governors Will Take Position After Studying Judgment, Says Fayemi
• Order Not Unconstitutional, Dissenting Judge Insists

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

The apex court 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 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 being an amount they claimed to have so far spent on capital projects for the three courts in their respective states.

Six Justices led by Mohammed Musa Dattijo agreed 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 state 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 Dattijo said in the lead majority judgment.

According to them, President Muhammad Buhari over-stepped his bounds with the Executive Order 10 and thereby engaged in breach of the constitution and usurpation of powers of heads of other arms of government.

The six Justices are Muhammed Dattijo, Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro.

Only Justice Uwani Abba-Aji gave endorsement to Executive Order 10, saying it was in line with the provisions of the Constitution to enforce the separation of powers and functions.

“We are not unaware of 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 aide the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the state have always denied. This is not unconstitutional,” he said.

However, four of the seven-man panel of Justices turned down the request of the 36 state governors for an order of the apex 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.

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 Musibawu Adetumbi (SAN) to the issue.

They upheld the arguments of Malami, Magaji and Adetunbi to the effect that the states, and not the Federal Government, should fund capital projects for the three courts.

The apex court Justices specifically agreed with Adetunbi, who was one of the amici curiae, that the 1999 Constitution has sufficiently provided the manner the Federal Government 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 was narrowed down in Section 84(7) while Section 121 also narrows down the load it wants the state governments to carry.

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

The four Justices are Mohammed Musa Dattijo, Centus Chima Nweze, Hellen Ogunwumiju and Uwani Musa Abba-Aji.

With the majority decision, the state governments are to continue funding the three courts as they had been doing since 1999.

President Muhammadu Buhari had on May 22, 2020, signed the Executive Order No 10 into law. The Order was meant to give effect to the provisions of the 1999 Constitution as altered by the 4th Alteration Act, No.4 of 2017, which guarantees financial autonomy for the judiciary and the legislature at the state level.

The Order simply sought to ensure that the monies voted for the judiciary and legislature in the annual budget was directly sent to its leadership, as against the prevailing practice where the state governors manage the funds for the two critical institutions with the attendant implications for their independence and optimum performance.

In other words, the Order was to grant financial autonomy to the legislature and the judiciary in the 36 states of the federation. It sought to empower the Accountant-General of the Federation to deduct funds for the state legislature and the judiciary from the Federation Allocations to the states.

However, Attorney General of Abia State had on behalf of 35 others, dragged the Attorney General of the Federation (AGF) before the Supreme Court, praying for an order to compel the Federal Government to take up funding of capital projects for the three courts on the ground that they are the courts of the federation and as such, the funding of their capital project should flow from the Consolidated Revenue Fund of the Federation.

Their lead counsel, Chief Augustine Alegeh (SAN) had argued that the salaries and emoluments of the judges of the three courts were being paid by the Federal Government in line with Section 81 of the 1999 constitution and as such the section should be invoked to place the responsibility of funding their capital projects at the doorsteps of the Federal Government.

The 37 state governments had in their joint suit also applied for an order of the apex court to compel the Federal Government to pay them N66 billion being an amount they had so far spent on capital projects for the three courts in their respective states.

However, the Attorney General of the Federation (AGF) represented by Tijani Gazali (SAN) had vehemently opposed the request of the states, urging the apex court to dismiss it.

The AGF had predicated his argument on the fact that while the issue of salary and emoluments of the judges of the courts are expressly stated in the 1999 constitution as the responsibility of the Federal Government, the section was silent on the capital project.

He had canvassed that since the states had been responsible for the funding of capital projects of the courts since 1999, the position should be maintained.

In the bid to resolve the constitutional logjam, the Chief Justice of Nigeria, Justice Ibrahim Tanko, had invited five Senior Advocates of Nigeria as Amici Curies (friends of court) for their input in resolving the matter.

However, three out of the five SANs – Chief Adegboyega Awomolo, Olisa Agbakoba and Chief Sebastine Hon – had thrown their weight behind the request of the 36 governors.

In their separate submissions, they had argued that the Federal Government should be responsible for the funding of capital projects for the three courts, since they are courts established for the federation.

Two other senior lawyers, Mahmud Magaji (SAN) and Musibawu Adetumbi (SAN), however, expressed dissenting views on the contentious issue.

They had aligned themselves with the AGF that the states and not the Federal Government should fund capital projects for the three courts.

Reacting to the judgment, Chairman of the Nigeria Governors’ Forum and Ekiti State Governor, Kayode Fayemi, said it was difficult for him to make a categorical statement until he receives a copy of the judgment on Wednesday, February 16, 2022.

“We have to receive a copy of the judgment, study it and understand its implication to the states before we can formally react,” he said.

But the National President, Human Rights Writers Association (HRWA), Comrade Emmanuel Onwubiko, described the setting aside of Executive Order 10 as an excellent demonstration of the principle of checks and balances as enshrined in Sections four, five and six of the Constitution.

According to him, “it was a healthy decision. ”

However, a professor of comparative constitutional law, Edoba Omoregie (SAN), described the judgment as a pyrrhic victory for the states.

His words: “If the report is anything to go by, the decision is a pyrrhic victory for the states. Executive Order 10 was surplus to the provisions of the Constitution and the subsequent Alteration Act on the issue of funding of state judiciary and legislature. President Buhari issued the Order when the states refused to comply with the constitutional provisions guaranteeing fiscal autonomy of the state judiciary and legislature.

“The states filed the suit in the hope of shirking their responsibility to fund state judiciary/legislature and possibly frustrate the autonomy granted the two branches to directly manage their finances.

“In the final analysis, it’s the judiciary and legislature of the states that have emerged victorious.

“This is good, because it sets the tone, finally, 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.”

On his part, a lawyer and former president, Campaign for the Defence of Human Rights (CDHR), Malachy Ugwummadu, said the judgment was a setback.

He said: “My reaction is that of concern. We all know that the Supreme Court is the last arbiter in the country. So, we can only but express our views after it has decided on a live matter.

“Executive Order 10 signed by the President is to operationalise the constitutional provision, which requires that the heads of courts should receive the funds meant for the running of the judiciary, if you like to actualise the desire for, not just autonomy, but financial independence of the judiciary. I hold the view that the President may have been persuaded that he had the powers to issue Executive Order based on the provisions of Section 121(3) and Section 5 of the 1999 Constitution, but has now been determined to be overreaching himself, acting unconstitutionally and ultra vires his powers and unconstitutional, apparently in breach of principle of federalism.

“So, that is the principle and motive. So, if an Executive Order is meant pursuant to a constitutional provision, then it stands to reason that it derives expressly from the constitution. But when we read the full judgment of the court, we will understand the rationale behind the decision. But given what was set out to achieve by that Executive Order, I do believe that the decision is a setback.

“It is the same with the legislative arm of government. It is to strengthen the principle of Separation of Power and to respect the sanctity of these arms of government with a view to giving full effect to constitutional democracy as it operates in our system. In that sense, I will think that not much is lost in the judiciary, in which favour the Executive Order was promulgated. They should resort to the constitutional provisions I talked about, which is to the effect that monies standing to the credit or meant for the judiciary arm of government, should be disbursed straight to the heads of such respective courts, such that the judiciary doesn’t need to go cap in hand, begging for what they are entitled to from the other arms of government, particularly, the executive, thereby compromising their independence and autonomy.

“However, I think that anyone who has gone to court to challenge the propriety of the Executive Order will be proceeding from the perspective that the Federal Government cannot make such orders to states in a federal system of government. However, such contradictions in relation to the functionality of federalism in our system has been noticed, just in the judiciary, but how we run our police, and other numerous federal as well as other sub-regional agencies. And I imagined that that must have come to the fore. What I spoke to was the principle behind it. That matter must have been contested and won on the basis that the president cannot sit in Abuja and issue an order or take decision that will impact on the independence of the federating units.”