Is President Buhari’s Executive Order 10 Constitutional?


Definition of “Executive Order”
An “executive order” (Black’s Law Dictionary), is “an order issued by or on behalf of the President, intended to direct or instruct the actions of agencies or government officials, or to set policies for the executive branch to follow”.
Executive Order, is not a Law. It does not form part of the Constitution, nor claims parity with it. Nigeria practices Presidentialism, within a Federal arrangement. There is a clear bifurcation of powers between the Federal, State and LGAs on the one hand, and between the three arms of government (Legislature, Executive and Judiciary (Sections 4, 5, 6, 1999 Constitution).

History of Executive Orders
The first known Executive Order was issued by American President George Washington on April 22, 1793. President Franklin D. Roosevelt issued the highest number of executive orders, amounting to 3,522. An executive order can be struck down, as in YOUNGSTOWN SHEET & TUBE CO. v SAWYER 343 U.S. 597 (1952). President Franklin D. Roosevelt, on 19th February, 1942, used an executive order to authorise the mass interment of Japanese-Americans during World War II. President Harry Truman in 1948, abolished racial segregation with an executive order. Earlier, President Ulysses Grant, had issued Executive Order 9, on February 17, 1873, to curb abuse of powers by individuals holding national, state and political offices.

Perhaps, the most famous executive order was the historic “Emancipation Proclamation” issued by President Abraham Lincoln on January 1, 1863, during a bloody civil war, declaring that “all persons held as slaves” within the rebellious States “are and henceforward shall be free”. Though this abolitionist order did not outrightly end slavery in America, it changed the imagination of millions of Americans about the evils of the over 500-year old anti-human practice. By April 15, 1865, (two years later), Lincoln was assassinated by Stage Actor, John Wikes, through a shot in the head at Ford’s theatre in Washington D.C. It is believed that Lincoln’s assassination towards the end of the Civil War, was part of a grand conspiracy by the Confederates unwilling to end slavery.

As far back as 2003, in A.G Abia State v A.G Federation (2003) 4 NWLR (Part 809) 124, 177, the Supreme Court upheld the validity of the Revenue Allocation (Federal Account, Etc.) (Modification) Order (Statutory Instrument No. 9 of 2002) and held that the President rightfully acted pursuant to the provisions of Section 315 of the 1999 Constitution, and the Order which came into effect retroactively, was thus, valid.

When Executive Orders become Lawful
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.

Yet, the Constitution has deliberately separated a State House of Assembly headed by a Speaker, from a State Executive arm of Government headed by a Governor. See Sections 90, 92, 176 and 180 of the 1999 Constitution. Because the Judiciary is the weakest of the three arms of government, as “it has neither FORCE nor WILL, but merely judgement” [Alexander Hamilton, Federalist Paper No 78, May 28, 1788], it grovels at the imperious feet of State Governors. State Judiciaries cannot therefore, give judgements of significant jurisprudential import.

CJN Tanko Muhammad’s Words on Marble
So bad is the situation that the CJN Tanko Muhammad, on September 23, 2019, during a special session to mark the commencement of the 2019/2020 Legal year and swearing-in of 38 newly conferred Senior Advocates of Nigeria, lamented the helplessness of the Judiciary regarding its much trumpeted independence. He 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 time, 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 hands”.

This blunt statement by the CJN, bemoaning the hapless fate of the Judiciary, says it all. The President has merely used Executive Order 10 (made pursuant to Section 5 (1) of the 1999 Constitution), to give respite to long suffering state Judiciaries and Legislatures, by making it mandatory that Heads of all of State legislatures and Judiciaries be paid directly on a first line charge. There is nothing wrong with this.

Arguments Against Executive Order No. 10
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 Appropriation 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 that, Executive 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”.
By Section 121 (3), “any amount standing to the credit of the Judiciary in the Consolidation Revenue Fund of the State shall be paid directly to the Heads of the Courts concerned”.

Finally, Section 3 of the Fourth Alteration provides,“any amount standing to the credit of a (a) House of Assembly of the State; and (b) Judiciary in the Consolidated Revenue Fund of the State, shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid directly to the Heads of the Courts”.
It is clear that, the recurring decimal in these provisions that are subsequent to Section 121 (1) and (2) are the words, “paid directly to the Heads” of State Judiciaries and Houses of Assembly; not to a State Governor.

Intendment of Executive Order 10
Order 10 does not howsoever, interfere with the budget of States presented in the form of an “Appropriation Bill”. All it says is that, when State Houses of Assembly prepare budgets and same are signed into Law by State Governors, all amounts reflected in the said budgets as “standing to the credit” of the Judiciaries and Houses of Assembly are directly transferred to their Heads, by the Accountant-General of the Federation (AGF). They are not supposed to be routed again, on an Israelites journey, to the respective Governors who have already taken their own allocations under Sections 162 (4), (5), (6), (7) and (8) of the Constitution. This is the mischief that Order 10 seeks to cure, pursuant to Section 5 (1) and the above sections. See AG. ABIA STATE & ORS v AG. FEDERATION (2003) LPELR-610 (SC); AG. BENDEL STATE v AG. FEDERATION (1983) LPELR-3153 (SC), on revenue allocation. See also, on the mischief rule, HEYDON’S CASE (1584) 3 CO. R. 637. ABIOYE v YAKUBU (1991) 5 NWLR (Pt 190) 130; SEAFORD COURT ESTATE v ASHER (1949) 2 All ER 155.

Executive Order No. 10 merely affirms the financial autonomy already donated to State Legislatures and Judiciaries, by the Constitution, strengthens them as institutions, and makes them truly independent from the suffocating grip of State Governors. This leads to transparency, accountability and responsibility in government; broadens and deepens the democratic space; and signposts the much desired restructuring and power devolution.

Article 6(1) of Executive Order 10 even helps State Judiciaries by providing for “special extraordinary capital development of State Judiciary complexes. It further makes it mandatory for the AGF to “deduct the amounts due to State Legislature and Judiciary from monthly allocations of States that refuse to implement the Order”. In so far as Article 6 merely warehouses amounts due to State Judiciaries and Legislatures already duly appropriated by States (but denied them by State Governors), it is not unconstitutional. The President does not, and cannot decide the contents of these Appropriation Bills; State legislatures do.

The AGF’s involvement is a refreshing remedial penalty to State Governors, compelling them to obey Sections 121(3), 162(9) and Section 3 of the Fourth Alteration to the 1999 Constitution. Such amounts, when deducted at source by unyielding State Governors, are now forthwith transferred directly by the AGF to Heads of Courts and Houses Assembly. What is wrong with this? Nothing.

The current revenue sharing formula (don’t forget, we only share; we never bake) in Nigeria is, Federal Government – 52.68%; States – 26.72%; LGAs – 20.60%. This is ludicrous and grossly lopsided in favour of a behemoth Federal Government, that lords it over subservient federating units. Yet, these near vassal States have themselves, imperiously turned into tin gods and rendered State Houses of Assembly and Judiciaries to paupers and lowly beggars. Executive Order 10, rather than seeking to assail the Constitution, as did Executive Order No. 6, merely strengthens it, and makes State Governors obey the Constitution.

“Mastering others is strength. Mastering yourself is true power”
(Lao Tzu).