Lawyers Differ over Executive Order on Financial Autonomy for State Legislature, Judiciary

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Alex Enumah in Abuja

Lawyers are divided over President Muhammadu Buhari’s Executive Order No 10 of 2020, compelling the enforcement of financial autonomy for the legislature and the judiciary in the 36 states of the federation as enshrined in Section 121 (3) of the 1999 Constitution as amended.

Some senior lawyers, who spoke to THISDAY, described the executive order as laudable because it would entrench the principle of separation of powers and make all arms of government truly independent.

However, others countered that as good as the decision may appear, the president lacked the legal authority as the issue of financial autonomy of state legislature and judiciary is purely a constitutional matter.

Those who spoke in favour of the new order include former Nigerian Bar Association (NBA) National President and human rights activist, Chief Olisa Agbakoba (SAN); President, Centre for Socio-Legal Studies (CSLS) and Professor of Public Law, Professor Yemi Akinseye-George (SAN) and Mr. John Baiyeshea (SAN).

But another senior lawyer, Mallam Ahmed Raji (SAN) and an Abuja-based legal practitioner, Mr. Steve Ekeh, said financial autonomy for state legislatures and judiciary could not be addressed or legislated on by a mere executive order.
According to Agbakoba, the executive order complies with the doctrine of separation of powers, which in the constitution makes the funding of the judiciary independent of the executive.

Agbakoba congratulated the president for the effort, noting that by signing the executive order, Buhari has implemented the decision in Olisa Agbakoba vs AGF, that judicial funding is independent of the executive.
He, however, said if the governors believed in the notion that the central government was overloaded with too many responsibilities, they should apply political wisdom than legalism, adding that “this executive order has the potential to kick-start the long-awaited rebalancing of the federation.”

“So, my advice is for the governors to also encourage the president to issue more executive orders,” he said.
Similarly, Akinseye-George said the president did the right thing by signing the order, adding that the recognition of the financial autonomy for the judiciary and the legislatures at all levels of government is necessary for effective checks and balances.

“At the moment, state governors exercise overbearing powers. Most states practice the one-party system. Several governors operate like dictators. This does not augur well for democracy. The autonomy of state legislature and the judiciary should help to improve the performance of those two arms of government,” he said.
While noting that it is possible for the financial autonomy to be abused, he urged stakeholders to work together to hold state legislature and judiciary accountable.

“Autonomy must go hand-in-hand with accountability. It is likely that autonomy will be abused. Civil society must be up and doing at the state levels to draw attention to the excesses of the arms of government.
“The media too has an important role to play in reporting abuses of powers by the different arms of government. In short, we must all be vigilant to ensure that the grant of autonomy translates to good governance in the real sense of the word,” he said.
While acknowledging the president’s power to enforce the constitution, he said any governor who violated the constitution could be sanctioned by the president.

He said although the president might not use force, there were other ways he could compel obedience to the constitution, including executive orders made pursuant to the constitution.
On his part, Baiyeshea who noted that the issue of financial autonomy for state legislature and judiciary is a constitutional matter, explained that the issue had dragged on for too long with previous administrations refusing to comply.
“I think with the executive order, what the president has done is to lead by example. Having now demonstrated the will power to comply with the constitution, it means that, at the federal level, the National Assembly and the judiciary are now financially independent or autonomous.

“I expect the states to follow,” he said.
Baiyeshea also noted that with Executive Order 10, 2020, the president has also given effect to the judgment of the Federal High Court delivered in 2013 in a suit filed by the Judiciary Staff Union of Nigeria (JUSUN), wherein the federal government and state governments were ordered to grant financial autonomy to the judiciary.

“The debate for financial autonomy for those arms of government has raged for too long. In the legal profession, we have always detested the idea of heads of the judiciary in the states (particularly), going ‘caps in hand’ to the governors (who seem to enjoy keeping the judiciary perpetually under their executive powers), to ‘beg’ for funds to run the affairs of the judiciary.
“The bold steps of the president will or should settle the issue once and for all. That’s a level of progress,” he said.
Baiyeshea also expressed fear that autonomy may lead to gross abuse.
However, Raji and Ekeh described the financial autonomy of state legislature and judiciary as a constitutional matter that cannot be addressed or legislated on by a mere executive order.

“The appropriate authority to grant such autonomy is either the constitution or an enabling statute. The problem with an executive order is multifaceted. What happens if the president withdraws, revokes, or suspends the order? Is the granting of autonomy within the executive power of the president under Section 4 of the 1999 constitution? Most humbly, I don’t think the president has the power and such is prone to create uncertainty as the president may decide to revoke or suspend the order,” Raji stated.
While noting that the issue of financial autonomy can only be achieved by legislative intervention, he said: “Governors can seek redress in court or ignore the order but it is better to go to court.”
Ekeh stated that although an executive order may be regarded as a law or having a legal force, they remain subsidiary or delegated legislation.

He said for exigent reasons, including administrative reasons, the executive could make certain orders, rules, regulations, which have the force of law.
Ekeh, however, added that such orders, rules or regulations must not be inconsistent either with provisions of substantive law or any provisions of the constitution.

“Where subsidiary legislation like orders, rules and regulations made by the executive is contradictory or inconsistent with the provision of substantive law or the constitution, such must be null and void to the extent of its inconsistency.
“Issues bordering on the autonomy of state legislature and the judiciary are constitutional matters that cannot be addressed or legislated on by a mere executive order.

“Nigeria operates federalism and matter relating to the autonomy of state legislature or judiciary is within the prerogative of the state governments and not the federal government.
“Executive Order 10 as it relates to granting autonomy to state legislature and judiciary is inconsistent with provisions of the constitution and therefore null and to the extent of its inconsistency,” Ekeh added.