President Muhammadu Buhari’s efforts to ensure the independence of the judicial and legislative arms of government at the state levels were thwarted yesterday by the Supreme Court, which invalidated his Executive Order 10 signed in June 2020.
The Order cited as “the implementation of financial autonomy for state legislature and judiciary 2020” contains a key provision that gives the Accountant-General of the Federation the authority to deduct from the allocations due to a state from the Federation Account any sums appropriated for that state’s legislature or judiciary that 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 the judiciary as the case may be.
The Supreme Court, in a split decision delivered in a suit brought by the 36 state governors challenging the president’s order, voided 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 the judiciary and legislature of the states.
According to the Order, President Buhari usurped the powers of the heads of other branches of government.
Dissatisfied with the Presidential Order, the 36 states of the federation filed a suit in the Supreme Court on September 17, 2020, through their attorneys-general, challenging the constitutionality of Executive Order 10, as well as requesting that the court issue an order compelling the federal government to fund capital projects of superior courts in the states.
The High Courts, Sharia Court of Appeal, and Customary Court of Appeal were among the superior courts mentioned.
Six justices of the Supreme Court agreed with the plaintiffs’ position that President Buhari exceeded his powers by initiating and signing Order 10.
According to the majority decision, Executive Order 10 was unconstitutional, illegal, null and void, and had no effect whatsoever because it was inconsistent with the 1999 Constitution.
Justices Muhammed Dattijo, Centus Nweze, Ejembi Eko, Adamu Jairo, Helen Ogunwunmiju, and Emmanuel Agim all agreed.
The lead judgment, written by Mohammed, held that the contentious Executive Order 10 violated the provisions of the 1999 Constitution, which clearly defines the functions and powers of the heads of each branch of government.
“This country is still a federation, and the 1999 Constitution that it is governed by is a federal one.”
The Constitution clearly divides powers between the states and the federal government.
By issuing Executive Order 10, the President has exceeded his constitutional authority.
“The country is run on the basis of the rule of law,” Justice Mohammed stated in the majority decision.
In her dissenting opinion, Justice Abba-Aji held that President Buhari was in order because Executive Order 10 was aimed at improving the provisions of the 1999 Constitution.
According to her, “the president’s action is justifiable in light of the hanky panky subterfuge played by state governors against the independence and financial autonomy of the state judiciary.”
“What judicial officers and staff go through financially at the hands of state executives, who frequently flout constitutional and court orders to their whims and caprices, is a pitiful eyesore.”
“As a result, Presidential Executive Order 10 is intended to facilitate the implementation of constitutional provisions…the Executive Order is to assist the states’ legislature and judiciary in correcting the constitutional error of their financial autonomy, which the states have always denied.”
“This is not unconstitutional,” Abaa-Aji maintained.
Meanwhile, in response to the plaintiffs’ request that the defendant be ordered to bear responsibility for funding capital projects of the three courts, four of the justices ruled that the federal government cannot bear responsibility for the affected courts’ current and capital expenditures.
The Justices, who included Mohammed, Nweze, Aba-aAji, and Ogunwunmiju, also refused to grant state relief for the payment of N66 billion in capital project expenses incurred so far for the three courts in their respective states.
The four Justices upheld the Attorney General of the Federation (AGF) Abubakar Malami, SAN, and two other senior lawyers, Mahmud Magaji, SAN, and Musibau Adetunmbi, SAN, who argued that capital projects for the three courts should be funded by the states rather than the federal government.
The Supreme Court’s Justices specifically agreed with Adetunmbi, SAN, one of the amici curiae, that the 1999 Constitution adequately provided for how the federal and state courts should be funded.
They also upheld his contention that Section 84 (7) narrows the load that the Constitution wants the federal government to carry, while Section 121 also narrows the load that the Constitution wants the state governments to carry.
Adetunmbi’s opposition to Executive Order 10 was also upheld, as was his request that it be declared illegal, unconstitutional, void, and set aside.