President Muhammadu Buhari, on May 22, 2020, signed 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 by the Judiciary and Legislature in the annual budget were directly sent to their leadership, as against the prevailing practice where the state governors manage the funds for the two critical institutions with the attendant implications on 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 also 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, the Attorney-General of Abia State, on behalf of 35 others, dragged the Attorney-General of the Federation 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, Augustine Alegeh, 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 36 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, in a split decision of six to one, the Supreme Court, on Friday in Abuja, nullified Executive Order 10.
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.
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 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 Executive Order 10 and thereby engaged in a breach of the constitution and usurpation of powers of heads of other arms of government.
The six Justices are Muhammed Dattijo, Centus Chima Nweze, Helen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro. Only Justice Uwani Abba-Aji gave an 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 aid the state legislature and judiciary in curing the constitutional wrong of their financial autonomy which the state has always denied. This is not unconstitutional,” he said.
It is our opinion that it is the constitution that is rather the winner in this legal battle between the federal and the state governments.
It is not anybody’s loss; it is the constitution that has won.
Although the judgment came in the form of anti-climax, the Federal Government should be commended for making the various state governments activate the provisions of Section 121(3) of the 1999 Constitution.
The simple implication of the judgment is that the constitutional provisions on the subject matter shall prevail.
Since the Constitution has covered the field, Executive Order 10 made by the President becomes unnecessary.
The plain implication of it is that the EO10 is now non-existent in the eye of the law and not binding on the states.
It is a decision of the apex court of the land against which there is no appeal. In this circumstance, the states are at liberty to continue with the issue of funding the judicial sector as they may choose or consider appropriate.
