Supreme Court judgment: Lawyers say Buhari derailed in issuing Executive Order 10

Legal experts and civil society groups have expressed a unanimous opinion that President Muhammadu Buhari derailed in issuing the Executive Order 10 (EO 10)on the Autonomy of Local Government and Judiciary at the state level, which the Supreme Court declared unlawful on Friday.

The EO 10, which was signed by the President in May 2020, provides financial autonomy to both state legislature and judiciary.

The order empowers the accountant-general of the federation to deduct funds for the state legislature and the judiciary from the federation allocations to the states.

But in the Friday judgment, the seven-man justices in a split decision of six to one, agreed that the president exceeded his constitutional powers in issuing the EO 10.

Speaking with Businessday shortly after the judgment in Abuja, a lawyer, Ostia Nwanjo, agreed that the president acted outside his powers by issuing the Order.

“I am happy that the Supreme Court has declared it unconstitutional, because if they had allowed it to stand, it may become a means of making a law in a society like ours,”Nwanjo said.

Nwanjo, who believes that the “President derailed in issuing the EO 10,” described the Order as “very unlawful.”

He noted that it would have been more appropriate if the judiciary workers had approached the courts to issue judicial pronouncements, which should have been presented to the Federal Government for implementation

He advised the Judicial Staff Union of Nigeria (JUSUN) to take action by proceeding to the Court to enforce the Constitutional provisions that grants financial autonomy to the judiciary, particularly, Section 21(3) and Section 81(3) of the 1999 Constitution of the Federal Republic of Nigeria as amended.

The governors of the 36 states had approached the nation’s apex court to set aside the Executive Order on the ground that the Federal Government was pushing its responsibility of funding both the capital and recurrent expenditure of the state high courts, Sharia Court of Appeal, and the Customary Court of Appeal, to the state governments.

They held that the EO 10 was a clear violation of Sections 6 and 8(3) of the 1999 Constitution, which made it mandatory for the Federal Government to fund the listed courts.

They argued that they had been funding capital projects in the listed courts since 2009, and asked the Supreme Court to order the Federal Government to make a refund of N66 billion to them.

Former minister of justice and attorney general of the federation, Adetokumbo Kayode, who also agreed with the Supreme Court ruling said, “the President has no Constitutional powers to issue Executive Orders that are binding on State Governors”

According to Kayode, “The President was not given the right advice. He can only give orders to members of his Cabinet. There are some Heads of MDAs who will not obey the Orders from Mr. President because they are not statutorily bound by his orders.”

The former minister, while also commenting on some states that had gone ahead to pass laws for autonomy of judiciary and state local governments, believed that they were not acting on the basis of EO 10.

“The governors have a captive legislature and they can do and undo. For instance, nobody can become a Speaker of the State House of Assembly without the governors’ inputs. So, even though it may be argued that these are not right, that is how they are. So, the Order cannot be binding on the states,” he said.

He described the EO 10 as “unnecessary and verbose, in so far as it concerns the states.”

Kayode, who also served as minister of culture and tourism, lamented however, that the states cannot develop properly under the current circumstances, because according to him, “States are running undemocratic systems.

“Unless these things are changed, states cannot develop. We have another issue that no one is talking about and that is the third tier of government, called the Local governments. We have counsellors who are elected and do nothing but collect salaries because the governors have caged them. We need to make the system work.”

He also called on the members of the Nigerian Bar Association (NBA) and the Civil Society groups to take up the matter. The NBA members and other interest groups should not be timid, this is the time to take up the matter and enforce the Constitutional provisions to ensure autonomy especially of the local government administration.

Read also: Supreme Court declares Executive Order 10 unconstitutional

Awal Ibrahim (Rafsanjani), executive director, Civil Society Legislative Advocacy Centre (CISLAC), also opined that the President was Ill -advised to issue the EO 10.

“What the President should have done was to have had a proper consultation with the Governors to arrive at the best way on the matter. Alternatively, let the judiciary and local government workers go to the courts and enforce the provisions in the Constitution and then approach the Federal government for implementation.

“There is a limit to which the President can go in forcing the state Governors to do anything. So you can see where we are. I believe it was this lack of proper advice that has led to this embarrassment for the Executive.”

The Civil Society expert noted that what the Supreme Court had done was in line with the Principles of Separation of Powers.

“What the Federal Government is trying to achieve is good, but they have to tackle them with the right steps to avoid taking us back to those undemocratic ways of doing things,” he said.

Ibrahim, while noting that the nation requires responsible judiciary and local government system of administration, added that “the Civil Society group will continue to advocate that the right thing is done.”