- Olukayode Ajulo
I find it quite interesting and intriguing that the Supreme Court today, 10th February, 2022 nullified President Muhammadu Buhari’s Executive Order 10 by a panel of 6-1 of the 7 member panel of the Court in its original jurisdiction.
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The 36 States Governors in Suit marked SC/655/2020 which was filed on September, 17, 2020 through their Attorneys General, queried the legality or otherwise of the Presidential Executive Order.
Six out of the seven members of the panel proceeded to void and set aside the Executive order 10. The majority decision adopted the expert opinion of Musibau Adetunbi and Mahmud Magaji, tow of the Senior Advocates of Nigeria, invited by Supreme Court to advise it on matter. The Supreme Court has declared as unlawful and unconstitutional the Executive Order 10 (E010) issued by President Muhammadu Buhari on the funding of State Judiciary and Legislature.
In declaring the EO10 unconstitutional, Justice Musa Dattijo Muhammad, in the lead judgment, said: “This Country is still a federation and the 1999 Constitution in 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”.
In the dissenting judgment, Justice Uwani Abba-Ajiheld as follows:
“we are not unaware of the hanky-panky and 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 courts orders to their whims and caprices. This, the presidential Executive Order 10 is meant to facilitate the implementation of the Constitutional provisions….the Executive Order is to aid the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the state have always denied. This is not unconstitutional”.
Recall that President Muhammadu Buhari in May, 2020 signed the Order into law. The order grants financial autonomy to the legislature and the judiciary in the 36 states of the country.
The order also mandates the accountant general of the federation to deduct from source amount due to state legislatures and judiciaries from the monthly allocation to each state for states that refuse to grant such autonomy.
Without prejudice to the decision of the Apex Court, I must quickly say that Our Courts have described Executive Order as an order or regulation issued by the President or some administrative authority under his direction for the purpose of interpreting, implementing or giving administrative effect to a provision of the constitution or of some Laws or treaty. See the cases of A.G Abia State & 35 Ors v. A.G Federation (2003) 4 NWLR (Pt. 809); Elephant Group Plc v. National Security Adviser & Anor (2018) LPELR-45528(CA).
In the circumstance, the said Executive Order 10 was signed into law based on the power vested on the President by virtue of Section 5 of the Constitution of the Federal Republic of Nigeria, which extends to the execution and maintenance of the Constitution and laws made by the national Assembly.
Section 121(3) of the Constitution expressly provides that “any amount standing to the credit of the judiciary in the Consolidated Revenue fund of the state shall be paid directly to the heads of the courts concerned”.
The above constitutional provisions is the law that require further explanations and or directives.
Conclusively, despite the decision of the Supreme Court, it must be reassuringly stated that autonomy of the Judiciary and Legislature is extant, subsists, vital and must continue to be activated for the good of our republic.
