Executive Order 10: Between good governance push and presidential excesses
Mixed reactions have continued to trail the Executive Order No. 10 signed by President Muhammadu Buhari, which grants financial autonomy to the state legislature and judiciary.
While some partisan commentators praised the development as the beginning of restructuring the polity for good governance, others, particularly lawyers and rights groups dismiss the president’s action as an opening for anarchy.
During the last National Executive Committee (NEC) meeting of the governing All Progressives Congress (APC), President Buhari, in response to those who were calling for a constitutional amendment to allow him seek a third term in office, jokingly stated that being his final constitutional term in office as president, he could afford to be reckless.
President Buhari had, on May 20, 2020, in exercise of powers vested on him under Section 5 of the Constitution, signed Executive Order 10, 2020, which guarantees financial autonomy of state legislatures and judiciary.
In the light of the strident condemnation of the Executive Order number 10 by state governors, the question that readily comes to mind is whether the proclamation of the order is an instance of the reckless show of power he alluded or his determination to open the country’s democracy for good governance.
Some chieftains of APC and supporters of the president have been speaking glowingly in favour of the executive order, stressing that it falls within the bracket of the next level of change the president promised Nigerians during his electioneering for the 2019 polls.
To the members of Buhari Support Organisation (BSO), the Executive Order 10 of 2020 represents a repeal of the emperor stance of state governors, as well as the quick implementation of the Doctrine of the separation of powers at the state level.
In a statement signed by a former Speaker of Abia State House of Assembly, Hon. Stanley Ohajuruka and Mr. Godwin Onwusi, chairman and secretary respectively, BSO, Southeast chapter, commended President Buhari for the initiative.
The group contended that by that singular action of signing the Executive Order 10, the president “has set the stage for the repeal of emperorship, a toga unknown to the 1999 Constitution adorned by most state governors and which beclouded them from adhering to the fine tenets of the doctrine of separation of powers.”
While decrying the governors’ non-implementation of financial autonomy of state legislative and judicial arms as duly enshrined in the constitution, BSO Southeast declared: “A cursory but sincere assessment of democracy at the state level gazettes that of rubberstamp legislatures and tepid state judiciary. This dampens development, creates insecurity, gross unemployment and paralyses local councils.”
The immediate response from the Nigeria Governors’ Forum (NGF) was the description of the executive order as an overkill, especially based on section 7(b), which mandates the Accountant General of the Federation to take appropriate actions to ensure compliance with the provisions of the order.
But, BSO contended that if the state governors had implemented section 121(3) before now, there would not have been any need for the president to sign the Executive Order 10.
The group noted that since democracy was more or less in recession at the state level, the intendment of the order is for the proper supervision to ensure implementation by recalcitrant governors, who had failed to implement the constitutional provisions in Section 121(3), which they swore to uphold.
On the claims that Executive Order 10 infringes on the doctrine of true federalism, BSO asserted that the cause of true federalism is better-served and actualized under independent legislature and judiciary at the state level.
Also a pro-masses group, Save the Poor Coalition (SPC), described the Executive Order 10 as restructuring for the poor, stressing that the law by granting financial autonomy to state legislature and judiciary has unbundled freedom and devolved power to the people, which would lead to “the consolidation of democracy at the grassroots.”
Speaking to journalists after the virtual meeting of the group, the National Coordinator, Mr. Emeka Enechi, explained that Save the Poor Coalition (SPC), “views Executive Order 10, 2020, as restructuring for the poor.”
“The law, in no small measure, devolves power and consolidates democracy at the grassroots level. By granting financial autonomy to state legislature and judiciary, we urge the Accountant General of the Federation to give immediate effect to this Order. We commend the president and urge the governors to comply with Executive Order 10,” Enechi declared.
Lamenting that state governors had over the years denied the masses the fruits of democracy, SPC noted that while 48 per cent of the nation’s revenue goes to the states, the impact could not be felt by the people simply because the governors emasculated the third tier, the legislative and judicial arms.
On plans by the state governors to challenge the promulgation in the court of law, SPC remarked that if the governors could not protest the moratorium granted them by the federal government on the repayment of billions of naira they borrowed, they have ot right to oppose the devolution of power to the people.
Highlighting the positive influence the executive order would have on good governance, Save the Poor Coalition stressed that with the first line charge of funding envisaged by the order, “the implementation of financial autonomy would strengthen the independence of the judiciary and stamp out the rubber stamp state legislatures in the 36 states of the federation.”
Rough road to EO 10
The release of financial guidelines by the Nigerian Financial Intelligence Unit (NFIU) last year could be described as the starting point of the journey towards the controversial Executive Order 10 signed by Buhari.
Under the guidelines, which it issued in May 2019 to take effect in June 1, 2019, the NFIU blocked access of state governors to local government council funds, especial accruals from the Federation Account.
The state governors, through their umbrella organization, the NGF, petitioned President Buhari, pointing out that NFIU exceeded its bounds through the guidelines, which was captioned, ‘NFIU Enforcement and Guidelines to reduce crime vulnerabilities created by cash withdrawal from Local Government funds throughout Nigeria’.
Expectedly, the National Union of Local Government Employees (NULGE) reached out to the Nigerian leader, urging him to ignore the governors’ petition, in which the NGF sought to stop the implementation of the NFIU guidelines.
In its letter to President Buhari, the National President of NULGE, Ibrahim Khaleel, described the guidelines as “a bold move to end the financial recklessness by state governors as they feast on funds meant for the 774 local government councils in the federation.”
While observing that local council employees had been victims of the maladministration and recklessness of state governors, the NULGE boss stated: “We call on Your Excellency to ignore the petition of the governors, who are behaving like wounded lions, because they see the source of the funds, which they have habitually misused and abused drying up.
“Your standing firm with the downtrodden people in the grass roots, who have endured avariciousness of the governors over the years, will send the desired message to all that you will consolidate and win the battle against corruption.”
The coming of Executive Order number 10, therefore, seems to be President Buhari’s attempt to strengthen the fiscal probity and accountability envisaged by the NFIU guidelines, particularly against the background of popular belief that the state governors take cover under their constitutional immunity to perpetrate impunity against other arms of government at the states’ level.
Oppositions to Executive Order 10
However, as noble and salutary as the Executive Order number 10 sounds, opposition to it points to its legality and especially possible breaches of extant constitutional provisions.
A pro-democracy and environmental rights activist, Mr. Ifeanyichukwu Okonkwo, said the Executive Order number 10 is a reckless move and an invitation to anarchy, adding that there is no way the federal government should take over the power to make laws for local government councils from the state legislatures.
Okonkwo said the only option left for the state governors is to challenge the constitutionality of the promulgation if they have the moral gravitas to protect the rule of law.
Similarly, a constitutional lawyer, Mr. Anene Ezugwu, posited: “This singular action (signing of the Executive Order No. 10), no matter how laudable it appears has thrown up the following issues for determination: Whether Section 5 of the 1999 Constitution as amended empowered the president to modify the provision of Section 121 (1)-(3) of the 1999 Constitution.”
Ezugwu explained that whilst Section 5 (1) of the Constitution provides that ‘subject to the provisions of this Constitution, the executive powers of the federation is vested with the President of Nigeria which shall include the implementation and maintenance of the Constitution,’ Sub-section 2 vests the executive powers of the state on the governor of the state.
“It is on this stead and among other sections dealing with public revenue and expenditure, that the president prepares Appropriation Bill for the Federal Government and lays it on the National Assembly for passage, while the governors prepare Appropriation Bill for the states and lay same before the states’ Houses of Assembly for passage.
“Section 121(1) and (2) of the 1999 Constitution as amended empowered the state governors to prepare expenditure for both the House of Assembly and the state judiciary and cause it to be laid on the floor of the state House of Assembly for passage.
“Sub Section (3) provides that any such amount approved for or standing to the credit of both the state House of Assembly and state judiciary shall be deducted from the consolidated revenue fund of the state,” the lawyer argued.
He contended that since it is very clear that the executive powers vested on the president under Section 5 (1) of the constitution started with the phrase “SUBJECT TO,” it makes powers granted to the president under Section 5 (1) subservient to the powers granted to the state governors under Section 121(1-3) of the 1999 Constitution.
Ezugwu asserted: “The President signing of the Executive Order no 10, 2020 to deduct from the source amount standing to the credit for both the state Houses of Assembly and the state judiciary has overreacted the governors’ powers as enumerated in Section 121 (1-3) of the 1999 Constitution as amended, which renders Executive Order no 10, 2020 as illegal, unconstitutional, void and of no effect as the president by his action seeks to modify an unambiguous provision of our Constitution which is the ground norm.”
As to whether Section 5 of the 1999 Constitution as amended empowered President Buhari to direct the Accountant General of the Federation to deduct money from the source to pay the amount standing to the credit for both the state Houses of Assembly and state judiciary, the constitutional lawyer, argues in the negative.
“The well established principal of law in Section 121(3) of the Constitution is that any amount standing to the credit for both the state Houses of Assembly and state judiciary shall be deducted from the consolidated revenue fund of the state,” he stated, adding that the import of the section is that no deduction shall be made elsewhere either from the source or wherever except from the consolidated revenue fund of the state.
He maintained that since the Accountant General of the Federation has no power to manage or dispense money from consolidated revenue fund of the state, “therefore, the Executive Order no 10, 2020, wherein the president directed the AGF to deduct money directly from the source, for the purposes of dispensing same to the state Houses of Assembly and state judiciary, also run contrary to the letters and the spirit of Section 121 (3) of the 1999 Constitution.”
To the constitutional lawyer, the Executive Order no 10, 2020, however well intentioned as it may seem, “remains illegal, unlawful, unconstitutional and of no effect so long as 1999 Constitution remain as it is at the moment.”
Ezugwu noted that the legal status of Executive Orders made by the Executive Arm of government is a rule or directives issued by the Executive arm for the smooth conduct of government business.
“Such Executive Order is inferior to the Constitution, Act of National Assembly or law made by the state Houses of Assembly and bye-laws made by the Local Government legislative council.
“Executive Order is not a law per se, neither does it have the equal status with the law, especially in a given democratic society. Its inferiority is made worse in country practicing federal system of government like ours, where the Constitution clearly spelt out the powers of the three arms of government.
“Consequently, when President Buhari purported to have signed into law Executive Order no 10, 2020, he did not do so in the sense of Constitutional provisions, which empowered him to sign Bill passed by the National Assembly.
“Apart from being overloaded, the president’s Executive Order no 10 has completely taken over the powers of state appropriation vested with the governors and their respective Houses of Assembly.
“Besides it is against democratic ethos and norms in a federal system of government for the president to use Executive Order to determine when and how capital projects will be executed in a given federating unit. Briefly, this is gruesome anti-climax to democratic tenets,” the lawyer surmised.