- Order effectively directs Accountant-general to fulfill the provisions of the constitution
Lagos lawyers, Mr. Femi Falana (SAN), Ebun-Olu Adegboruwa (SAN) and Executive Director, Policy and Legal Advocacy Centre, Mr. Clement Nwankwo, have commended President Muhammadu Buhari for enforcing the provisions of the 1999 Constitution, as amended, by signing into law an Executive Order to grant financial autonomy to the legislature and the judiciary across the 36 states of the federation.
In separate interviews with THISDAY, the lawyers said the president acted rightly when he issued the executive order on Friday to ensure financial autonomy for states’ judiciary and Houses of Assembly.
Falana said since the governors would not comply with the provisions of the constitution, the president had a duty to enforce the constitution. He stressed that the executive order was aimed at enforcing the constitution.
According to him, section 121 of the constitution grants the judiciary financial autonomy. But the governors would not comply with it.
Besides, Falana stated that there had been two judgements calling on governments to uphold financial autonomy for the judiciary.
He said, “Remember that judiciary workers had to go on strike to force government to comply. That was what led to the amendment of the constitution in 2018. Despite that, the governors did not respect both the judgements and the amendment to the constitution.
“What the president has now done is to use Executive Order to direct the accountant-general to fulfill the provisions of the constitution to actualise the constitutional amendments.
“The president is in order in issuing the executive order. The president has a right to enforce the constitution, if the governors would not do it.”
Adegboruwa commended the President for his bold initiative to grant financial autonomy to the judiciary, through the executive order.
He said: “It takes courage and selflessness for the head of the executive to seek to grant autonomy to the judicial arm of government, when it is considered that most cases in the courts are to check the excesses of the executive arm, being the organ of government responsible for the implementation of policies.”
He however, warned that it was not enough to grant financial autonomy to the judiciary but also to ensure compliance with the rule of law through full and complete obedience to all orders and decisions of the courts.
He said: “I urge the President to grant total autonomy to the judiciary by signing another executive order to all parastatals, agencies and departments of government to implement section 287 of the 1999 Constitution by complying with all orders, judgments and decisions of the courts.
“In addition, the statutory power placed upon the Attorneys-General to grant approval for the enforcement of monetary judgments involving government revenue is one of the greatest encroachments upon the powers of the judiciary, whereby a member of the executive is still required to approve or refuse the enforcement of a final decision of any court, even after full trial. The President should uproot this anomaly urgently.”
He urged governors of to cooperate with the President for the full implementation of the executive order in all parts of the federation.
Nwankwo said regarding the executive order, “It is welcome, especially since state executives/governors have consistently hindered the constitutional provisions guaranteeing the financial autonomy and independence of these arms of government.”
He explained that the order outlined implementation mechanisms for the amendments made by the National Assembly in the Fourth Alterations to the Constitution.
According to him, “It is not and cannot add to the well spelt out constitution alteration that provides for the financial budget of the state judiciary and state legislatures to be on first line charge. The National Assembly and the federal judiciary benefited from a similar amendment made to the constitution in the First Constitution Alteration of 2010.
“The Executive Order reiterates what the Constitution Alteration set out to achieve.”
Buhari had on Friday signed Executive Order Number 10 of 2020 for the implementation of Financial Autonomy of State Legislature and State Judiciary. This was announced in a statement issued by Special Assistant on Media and Public Relations to the Attorney-General of the Federation and Minister of Justice, Dr. Umar Gwandu.
The president signed the executive order based on the powers vested in him as the President of the Federal Republic of Nigeria under Section 5 of the 1999 Constitution (as amended). This extends to the execution and maintenance of laws made by the National Assembly (including but not limited to Section 121(3) of the constitution), which guarantee financial autonomy of the state legislature and state judiciary.
The statement said a Presidential Implementation Committee was constituted to fashion out strategies and modalities for the implementation of financial autonomy for state legislature and state judiciary in compliance with section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
According to the statement, “The amendment took into consideration all other applicable laws, instruments, conventions and regulations, which provide for financial autonomy at the state tier of government.
“The implementation of financial autonomy of the state legislature and state judiciary will strengthen the institutions at that tier of government and make them more independent and accountable.
“This would be in line with the tenets of democracy as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
The executive order states, “the Accountant-General of the Federation shall by this Order and any such other Orders, Regulations or Guidelines as may be issued by the Attorney-General of the Federation and Minister of Justice, authorise the deduction from source in the course of Federation Accounts Allocation from the money allocated to any State of the Federation that fails to release allocation meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended).”
It said, “All states of the Federation shall include the allocations of the two Arms of Government in their Appropriation Laws.”
Article 6 (1) of the order also says, “Notwithstanding the provisions of this Executive Order, in the first three years of its implementation, there shall be special extraordinary capital allocations for the Judiciary to undertake capital development of State Judiciary Complexes, High Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of other Courts befitting the status of Courts.”
Buhari had in 2018 assented to the constitution amendments granting autonomy to the two arms of government at the sub-national levels. In May last year, state governors pledged to implement financial autonomy for state legislatures and judiciary to ensure transparency and openness in governance. They made the pledge through the Nigeria Governors Forum (NGF) at the opening session of a two-day conference on the implementation of the initiative held at Transcorp Hotel, Abuja.
The then Chairman of the NGF, Abdulaziz Yari, who was then the governor of Zamfara State, said the governors would work with the federal government to implement the law.
Yari was represented at the event by the then Bauchi State Governor, Mohammed Abubakar. He said the autonomy of the legislature and the judiciary was critical to sustainable development.
Despite the assurances by the governors, they refused to comply with the provisions of the constitution granting financial autonomy to state judiciary and legislature.
The president has now been forced to wield the big stick.