Executive Order 10: A step in the right direction

Most recently, President Muhammadu Buhari signed the Executive Order 10 (EO. 10) to give specific direction to the independence of the state legislative assemblies and the state judiciaries in line with and as already sanctioned by the National Assembly in 2017 as per the Constitution Alteration Act No. 4 of 2017. The issuance of the EO 10 has, however, generated a debate in legal circle as to the propriety or otherwise of such a procedure. While some are of the view that the Order was properly initiated, others are of the view that such procedure was in breach of the constitution itself or that same has impugned on the supremacy of the constitution which is the fons et origo and the grundnum of our democratic system.

At this juncture, it is pertinent to briefly recall the background of where we were coming from. After the catastrophic effect of military incursion into our body politic which left the nation comatose due to maladministration from the Khaki boys, the nation fought for and eventually secured a return to civil rule in 1999. The presidential system that was embraced by the nation, as a continuation of the system introduced during the second republic between 1979 to 1983, was not well thought out. The opening paragraph of the 1999 Constitution which commenced with the words, “We the people…..” have been variously denigrated as being a lie well packaged by the military to achieve a militocrazy rather than democracy properly so called. It was, therefore, not a surprise that the 1999 Constitution was crafted in such a way as to subjugate other arms of government to the whims and caprices of the executive arms, particularly in the area of financial dependence. The situation became so disheartening such that most state governors see the state judiciaries and the state assemblies as extension of their executive offices. Hence, for the past 20 years, we have therefore inadvertently run a “Kabiyesi democracy” wherein the governors are perceived as kings who can do no wrong under any circumstances. The effect of this abnormal system has hemorrhaged our justice system in particular, as every state chief judge has to go cap in hand to beg their state kabiyesi before they could have a smooth tenure as head of the courts within the state, in the financial sense; ditto for the speakers of the various of assemblies.

It therefore became fashionable for the executive to buy cars and other items for these arms of government as if they were appendages of the executive arm of government. Some of these governors are consequently rewarded with obscene Pension Law to give these state chief executives permanent Eldorado upon retirement, at the expense of the common man and tax payers. The end result is such that while our brand of democracy makes our politicians to grow fatter in all respect, the populace grow thinner and thinner, to the extent that, as at today, we have achieved the unenviable record of being the “poverty capital” of the world.

Having regard to the above background history of our nation, it, therefore, became a thing of joy when the National Assembly passed the Constitution Alteration Act No. 4 of 2017 to strengthen the financial autonomy of the two other arms of government. Thus, it can be safely said that our democracy is gradually being demilitarized – so much so that at the end of the day, the Nigeria populace can indeed see and enjoy the real dividends of democracy. With this development, the principle of checks and balances can then take proper root within our democratic system.

As regards the issue of legality or otherwise of the EO 10, it is my humble view that there is nothing illegal in the said Executive Order. In actual fact, it is in line with the spirit of the Constitution and therefore the EO. 10 should be applauded by all in view of the positive advantages envisaged by the Order. Section 121 (3) of the Constitution of the F.R.N (1999) provides that: “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund (CRF) of the State shall be paid directly to the heads of the courts concerned”. However, due to the observed none-compliance by the state governors with this mandatory provision, this engendered public outcry which resulted in the National Assembly taking steps to amend the provision through the Constitution Alteration Act No. 4 of 2017 which amendment puts the budgets of the State judiciary and the legislature on first line charge. By this amendment, the Constitution “specifically” provides that, the amount standing to the credit of the judiciary and the legislature in the State Consolidated Revenue Funds (SCRF) shall be paid directly to the said bodies.

With the EO 10 recently signed by the president, the constitutional provision relating to the financial independence of the state legislature and the state judiciary can now be made practicable at the state level, since the legislature and the judiciary are already enjoying the same benefit at the federal level. The Executive Order is, therefore, meant to give executive support to the enforcement of the constitutional provision regarding the financial autonomy of the state legislature and state Judiciary. In other words, with the EO 10, the Accountant -General of the Federation is empowered to deduct directly from the allocations due to states in the federation accounts and pay the deducted funds to state legislature and state judiciary whenever any particular state fails to release the allocations to the other arms of government as directed by the Constitution as per the Constitution Alteration Act No. 4 of 2017.

However, some are of the view that the issuance of the EO 10 smacks of executive lawlessness and despotic tendency on the part of Mr. President. On my part, I consider this line of thought, with due respect, a gross misconception for the following reasons: our presidential system of government provides for inter – relationship between the three different arms of government while at the same time promoting the independence of each arm of government. For this reason, the president / governors lay their yearly budget before the relevant national / state Assemblies, the Chief Justice of the Federation swears in a newly elected president while a state C.J. swears in the newly elected governor, and the president / governors appoint federal and state judges pursuant to the recommendation of the NJC at the federal / state level.

The oath of office which the president subscribed to as stipulated under the Constitution of the FRN 1999 (as amended) shows that his jurisdiction as president covers the whole nation and therein, he undertook, among other things, as follows: “……. I will to the best of my ability preserve, protect and defend the Constitution of the Federal Republic of Nigeria” The EO. 10 should be seen in the light of the above undertaken ‘to preserve, protect and defend’

The reason our democracy has failed to serve us, despite two decades of uninterrupted civil rule, is that the state legislatures and the state judiciaries operate without the expected independence which the constitution had conferred on them, in the realm of finance, thus enabling the state governors to see themselves as demi-gods or emperors who must necessarily control other arms of government as if they were appendages of the executive. With that type of system, the nation witnessed movement without progress.

The pertinent question we should ask ourselves is – who else could have done it if not the president to provide the legal mechanism whereby the constitutional provision as regard financial autonomy could be enforced and/or realised, in line with his oath of office ‘to preserve, protect and defend’? We should recall that two different courts of the land had given positive judgments which are pro-financial autonomy in favour of our state judiciaries in recent time, but the almighty state governors failed and/or neglected to comply with those judgments.

In the light of all the above, it is crystal clear that the nation stands to benefit from EO 10 in the long run. A new lease of life has thus been unleashed to shepherd our democracy to the next level of progress. Most recently, all the local governments within the nation were equally granted financial autonomy. This will no doubt strengthen government at the local levels where the citizens will directly feel the impact of government. There is no doubting the fact that when the state governors have access to limited resources, unlike was the case in the recent past, the propensity to steal and loot would hopefully become minimized. With the financial autonomy to the state legislature and Judiciary, the quality of enacted laws and pronounced judgments will no doubt be enhanced. Resources meant for these arms of government can then be channeled towards positive end, for the overall benefit of the people and the nation.

The EO 10 should be seen as part of the effort of the president to de-militarize our democracy so that, at the end of the day our democracy will not be lacking in democratic potency in terms of quality and content. I urge the State Governors to look at the bigger picture of what is meant to be achieved by the EO. 10 which no doubt is aimed towards strengthening our democracy and leaving a lasting legacy for children yet unborn; and for learned colleagues to endeavor to use our legal knowledge to fight for higher ideals for our nation rather than using our legal knowledge to support those who are wont to tear the system down and who, of course, can pay the bill. If you consider that financial autonomy is indeed good for our State Judiciaries, then, let us applaud EO. 10.

Ojogbede, the Principal Counsel at Dele Ojogbede & Co wrote from Lagos.

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