Ordering Controversy: The pros and cons of Buhari’s Executive Order 10

LANRE ADEWOLE brings all perspectives into the controversies trailing the newly-minted, yet-gazetted Executive Order 10, from the Nigerian presidency.

Save for President William Henry Harrison, all United States presidents, beginning with George Washington in 1789, had issued one executive order or the other, and the practice of using such executive power also has its origin in the same United State, with the first ever executive order, issued on June 8, 1789 by George Washington. It was addressed to the heads of the federal departments, instructing them «to impress me with a full, precise, and distinct general idea of the affairs of the United States.”

However, the most famous executive order was believed to have been issued by President Abraham Lincoln, when he issued the Emancipation Proclamation on January 1, 1863. Since then, thousands of executive order have been issued by Presidents in the United States, with Franklin D. Roosevelt holding the record for most executive orders with a whooping 3,522 during his presidency, followed by Woodrow 1,803, Calvin Coolidge 1,203, Theodore Roosevelt 1,081 and Harry Truman 907.

It is also on record that executive orders can be shot down by the judiciary as was in the case of Truman›s Executive Order 10340 which placed all of the country›s steel mills under federal control.  It was pronounced invalid by the judiciary in the case of Youngstown Steel & Tube Co. v. Sawyer, 343 US 579 (1952) because «it attempted to make law, rather than clarify or to further a law put forth by the Congress or the Constitution»

Since the establishment of the precedent, American Presidents have been found to act with caution regarding constitutional power to issue such proclamations and where they are able to establish an enabling constitutional provision, they simply say, «under the authority vested in me by the Constitution».

Executive Orders in Nigeria

Nigeria’s desire to mimic the United States› brand of democracy and participatory governance, has seen executive orders coming more into force and under the hand of incumbent President Muhammadu Buhari, such proclamations are becoming a regularity. While those in the recent past have passed with little or no noise, considering their timeliness and the problems they sought to address with the polity, like the Executive Order 6 on Preservation of Suspicious Assets and Related Schedules, the most recent, dubbed Executive Order 10, which sought to cede independence to state judiciary and legislature through financial autonomy, is pitting the federal government against its state counterparts and again, throwing up the question of the legitimacy of executive power and the constitutionality of such Proclamations. Coming into focus once again, is the issue of constitutional democracy and fiscal federalism, which are at the heart of the country›s current democratic experience and practice.

Since the order was issued by President Muhammadu Buhari, ably backed by his Attorney General of the Federation and Minister of Justice, Abubakar Malami SAN, there has been a back and forth between the presidency and the Nigerian Governors› Forum, led by Buhari›s ally and Ekiti State governor, Kayode Fayemi and the latest in their head-knocking game over who should determine how state judicial divisions and Houses of Assembly should be funded, is the reported suspension of the gazetting exercise of the Order, which should have kick-started the process of its implementation, though Malami was clear, there would be no going back on the said Proclamation.

Governors are very clear about the President not possessing the constitutional power to gift the state assemblies and judicial divisions such financial independence and by extension, their freedom from the state executives, thought to be breathing down their neck, to do their bidding as the ones paying the piper, through the monthly allocations from the federation account in Abuja.

In disputes like this, the Supreme Court is always called upon to adjudicate on who is right and who is wrong, sitting as a court of first instance on constitutional matters and if the Governors› Forum will eventually be approaching the court, considering the militant stance of Malami, it would not be the first time the presidency and the governors, would go head to head on the issue of financial autonomy and beneficiaries of first line charge payments.

During the time of Justice Mohammed Lawal Uwais as Chief Justice of Nigeria (CJN), the vexed issue of onshore/offshore dichotomy dominated the political space for months, until the court rested it, between the administration of President Olusegun Obasanjo and the governors of that time.

While it is still debatable the current impasse would end in a constitutional action, the two sides, are having their victories in different spaces as things currently stand.

In public opinion space, Buhari is without doubt, winning, due to the poor perception of the governors in their relationships with the other two arms of government in their respective domains. The state executives are seen to be largely domineering in relating with their assemblies and state judicial divisions, simply because the disbursement of funds from Abuja is done by the executive arm. Apart from the celebration in the camps of those to benefit from the enforcement of the controversial Executive Order, other bodies like the Nigerian Bar Association, have celebrated the President for the move, seen largely as caging the rampaging governors.

But not all are impressed. Interestingly, most of those who have given competent opinions on the constitutionality of the Order, are senior members of the NBA and they practically slammed it. Despite the desirability of the result it was planned to achieve, the senior lawyers, are arguing, it must be within the context of constitutionality, practically siding with the governors.

“Executive Order unnecessarily, but governors are guilty’

Leading rights lawyer, Femi Falana, SAN, was unequivocal about his position, while advising state governors on how to end the controversy. According to him, “Frankly speaking,  Executive Order 10 on deduction of the funds for the judiciary from source is totally unnecessary. At the same time, the refusal of state governments to comply with section 121 of the Constitution is embarrassingly indefensible.

“Section 81(3) of the Constitution provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National judicial Council for disbursement to the heads of the courts established for the Federation and the State under section 6 of the Constitution.

“Furthermore, section 121 (3) of the amended Constitution has prescribed that the fund of the judiciary and House of assembly in the consolidated revenue fund of the state shall be paid directly to both institutions. These constitutional provisions have been confirmed by two judgments of the federal high court which have directed the federal government and state governments to comply with the provisions of section 81 (3) and 121 (3) of the Constitution.

“Both sections and the judgments have been disregarded. On that score alone, the President is under a legal obligation by virtue of section 287 of the Constitution to ensure compliance with the valid and binding orders of the federal high court on the matter. The federal government has complied with the judgments while state governments have ignored them without any legal basis.

“Disobedience of court orders in a democratic country that operates under the rule of law is tantamount to totalitarianism. It constitutes a threat to law and order in a civilised society. Disobedience of court orders is always resisted by authorities in a democratic society because a government that rules by law cannot be permitted to ignore court orders.

“In 1954, the US Supreme Court handed down its historic Brown v. Board of Education decision  which declared all laws establishing segregated schools to be unconstitutional. Consequently the verdict called for immediate desegregation of all schools throughout the nation. After that decision, 9 black students were denied admission to an  all-white Little Rock Central High School in the state of Arkansas.  The state governor called in the  Arkansas National Guard to ‘preserve the peace’ due to claims that there was “imminent danger of tumult, riot and breach of peace” at the integration.

“On account of the disobedience of the court order by the Arkansas state governor President Eisenhower issued Executive order 10730, which put the Arkansas National Guard of 10,000  troops under federal authority. The president sent additional 1,000 US Army troops from the 101st Airborne Division  to support the integration of the black students in compliance with the court order. The 11,000  troops did not withdraw until the 9 black students were fully integrated.

“From that precedent  President Buhari cannot be faulted for issuing Executive Order 10 directing the Accountant-General of the Federation to deduct the fund budgeted by state houses of assembly and signed into  law by state governors and pay directly to the state judiciary and houses of assembly in line with the appropriation laws of the states. With respect, that is in line with section 287 of the Constitution which has vested the president to adopt measures  deemed fit to ensure compliance with the two orders of the federal high court. So, the issue considered by former Chief Justice Mohammed Uwais is totally different from wilful disobedience of court orders and brazen breach of the provisions of the Constitution on financial autonomy for the judiciary.

“I am, however, not unaware of the statement credited to the Chairman of the Nigeria Governors Forum, Dr. Kayode Fayemi to the effect that the president has assured the governors that Executive Order 10 would be suspended. That assurance should be taken with a pinch of salt having regards to the statement of the Attorney-General of the Federation, Mr. Abubakar Malami SAN, who has harped on the sacrosanctity of Executive order 10.

«Instead of the unnecessary controversy other state governors should emulate the Delta State government which has enacted a law for financial autonomy for the state judiciary and house of assembly in line with section 121 (3) of the amended  Constitution.  That is the most effective way to resist the interference in the management of the internal affairs of state governments by the federal government with respect to financial autonomy for state judiciary and legislative houses.”

Osun-based attorney, Mr Jola Akintola’s view is in line with Falana’s and he is very concerned about implementation.

He told Sunday Tribune; “My attitude to it has always been that it is not implementable as far as Nigeria is concerned. Even before I read the guidelines released by the Federal Government for its implementation, I have always been of the opinion that it’s not implementable. It has no constitutional backing. If you look at the 1999 Constitution of the Federal Republic of Nigeria (as amended), it only talks about the independence of the judiciary which ordinarily does not go beyond guaranteeing salaries of Judges to be on the consolidated fund. Payment of their allowances is not so guaranteed. Financial autonomy, in the real sense, should mean complete autonomy, financially.

“The legislative arm of government, for example,  hardly generate money. Where will they get the money to be spending autonomously from? In the guidelines released by the Federal Government for implementation of the autonomy, I laughed when I read that the two arms will still have to request for money needed by them quarterly or so from the executive arm after giving satisfactory explanation of how they spent the last one collected. You see, a chicken that  has  gotten independence from its  mother doesn’t come to the mother for any food or assistance and neither does it give any account of how it ate the  food that comes its way to the mother. Sincerely speaking, it has no constitutional backing  and it is not implementable,” he explained.

Scion of the F.R.A Williams’ legal dynasty, Chief Ladi Williams, SAN, calls it plain illegality.

Hear him: “No the president  cannot legally (gift state legislature and judiciary financial autonomy). We are not practising true federalism as envisaged in the Constitution of 1999 as amended. The power to make laws is vested in the National Assembly and state assembly. It will take us quite a while to be free from the military hangover of unitary system of Government.

“What the President has done is to ignore the principles of financial federalism, maybe because it is not expedient. The president can execute the provisions of an act of the National Assembly and in the case of the states, the Governor of the state.

“I am not a fan of executive orders. Many a time, they brazenly make incursions into sacred precincts of the Constitution, attempting to modify, abridge or even outright annul its sacrosanct provisions. This was why I vehemently kicked against President Muhammadu Buhari’s Executive Order No 6 of 5th July, 2018, which sought to curtail certain liberties and fundamental rights of Nigerians under the thin guise of fighting corruption, for being unconstitutional,” he said.

Constitutional law icon, Chief Mike Ozekhome SAN, has his argument for and against executive orders, but viewed the one in discourse as desirable.

Quoting him, “I am not a fan of executive orders. Many a time, they brazenly make incursions into sacred precincts of the Constitution, attempting to modify, abridge or even outrightly annul its sacrosanct provisions. This was why I vehemently kicked against President Muhammadu Buhari’s Executive Order No 6 of 5th July, 2018, which sought to curtail certain liberties and fundamental rights of Nigerians under the thin guise of fighting corruption, for being unconstitutional.

“However, when an executive order merely reaffirms the provisions of the Constitution which have been  continuously  breached by its operators, who swore to defend them, I subscribe to such an order. For too long, some Governors, since 1999, defied the provisions of the Constitution regarding equitable sharing formula between the FGN, states, LGAs, Legislature and the Judiciary. They scornfully treat such provisions with supercilious disdain, by ambuscading at source, allocations meant for State Legislatures and Houses of Assembly.

The argument that Executive Order 10 contravenes section 121 (1) and (2) of the 1999 Constitution is a non sequitur. Section 121 (1) enjoins a governor to prepare and lay before the House of Assembly before commencement of each financial year, estimates of the revenues and expenditure for the following financial year. Section 121 (2) provides that such estimates “shall be included in a bill, to be known as Appropriate Bill, providing for the issue from the Consolidated Revenue Fund of the State of the sums necessary meet that expenditure and appropriation of those sums for the purposes specified therein”.

The argument here is that executive order 10 overrides the above sections 121 (1) and (2) of the 1999 Constitution. To that extent, it is contended, Order 10 runs foul of those sections. This is fallacious. By section 162 (9), “any amount standing to the credit of the Judiciary in the federation Account, shall be paid directly to the national Judicial Council for disbursement to the  heads  of  Courts  established  for  the  federation and  the States under section 6 of this Constitution”.

A founding father of Nigeria’s constitutional governance, Professor Ben Nwabueze SAN, won’t agree with his younger colleague.

In a recent interview with Guardian Newspaper, he was quoted as saying “the Fourth Alteration to the Constitution (Act No. 7) of 2018 was aimed at stopping it, so far as concerns monies meant for the state Houses of Assembly but neither adds to nor subtracts from the financial autonomy already granted to the judiciary by the pre-existing Section 121(3) of the constitution.

“Granted that the financial autonomy of the State Houses of Assembly should be protected against (alleged) diversion of their money by the state governors, by what means and at what cost should this be done? Should it be by means of an Executive Order made by the President as a sole individual in his capacity as head of the executive arm of the Federal Government? Executive Orders are something new in Nigeria, and their constitutional boundaries, as a form of legislation, are yet to be delineated and defined.

“In making the Executive Order 10, the President relied on Section 5(1) of the constitution as authority for making it. Does the subsection in fact confer such authority?”

The professor consequently declared the order as null and void “by the operation of the opening words of the subsection.”

What, however, is not in doubt is the majority opinion that all arms of governance both at the federal and state levels, should be free as enshrined in the Constitution, the point of divergence is the course it should take.

But the contending parties in the matter can take their cue from the recent lamentation of the Chief Justice of Nigeria, Justice Tanko Mohammed, who said “when we assess the Judiciary from the financial perspective, how free can we say we are?…If you say that I am independent, but in a way, whether I like it or not, I have to go cap-in-hand asking for funds to run my office, then I have completely lost my independence. It is like saying a cow is free to graze about in meadow, but at the same times, tying it firmly to a tree. Where is the freedom?

“The Constitution provides  for separation of powers and independence  of  the three arms of government. I am using this medium to appeal to governments at all  levels to free the Judiciary from the financial bondage it has been subjected to over the years. Let it not just be said to be independent. There should not be any strings attached. We would not like to negotiate our financial independence under any guise. Even as I speak now, some State Judiciaries are still having issues with their respective governments. A stitch in time will certainly save nine. Let the Judiciary take its destiny in its [own] hands”.

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