February 15, 2022

The president’s executive orders and true federalism in Nigeria

Nigeria The president’s executive orders and true federalism in Nigeria


IT is no longer news that the Supreme Court of Nigeria last Thursday set aside President Buhari’s Executive Order 10 as being inconsistent with the 1999 constitution and ipso facto illegal, null and void and of no effect whatsoever. It will be recalled that the Order was made by President Buhari ostensibly to enforce financial autonomy of the States’ Judiciary and Legislature.

In this case filed by the States against the Federal Government, the apex court also rejected the request of the 36 state governments for an order to compel the Federal Government to take up funding of capital projects for State High Courts, Sharia Court of Appeal and Customary Court of Appeal and concomitantly refused to grant an order sought by the governors to compel the Federal Government to refund to the states, N66 billion being an amount they claimed to have so far spent on capital projects for the three courts in their respective states.

By a majority of six out of the seven, with His Lordship, Honourable Justice Mohammed Musa Dattijo, delivering the lead judgement, the apex court concurred that the controversial Executive Order 10 is in conflict with provisions of the 1999 Construction with respect to functions and powers of heads of each arm of the government. Justifying the principles of separation of powers, noting “this country is still a federation and the 1999 Constitution it operates is a federal one. The Constitution provides a clear delineation of powers between the state and the Federal Government.

Dealing a fatal blow on the curious legislative instrument initiated by the head of the Executive arm of the  Federal Government, the zenith of the nation’s judicial pyramid  declared and held  that “the President has overstepped the limit of his constitutional powers by issuing the Executive Order 10. The country is run on the basis of the rule of law.”

In our respectful view, the decision of the Supreme Court was not farfetched. In fact, it only proclaimed what many people who are conversant with the concept of federalism and its tenets in constitutional democracy portends. Many, however, prefer playing to the gallery for fear of political or social repercussions from individuals and powerful institutions with vested interests.

As reported in the media, in the absence yet of its publication in the authoritative law reports, “President Muhammad Buhari over-stepped his bounds with the Executive Order 10 and thereby engaged in breach of the constitution and usurpation of powers of heads of other arms of government.”

That precisely is the crux of the matter. It is recalled  that President Muhammadu Buhari on May 22, 2020 issued the Executive Order No 10 ostensibly to give effect to provisions of the 1999 Constitution as altered by the fourth Alteration Act, No.4 of 2017, which guarantees financial autonomy for the judiciary and the legislature at the state level.

As reported  in the media, the Order is a directive that the monies voted for the judiciary and legislature in the annual budget was directly sent to its leadership, as against the alleged prevailing practice where the state governors manage the funds for the two other arms which is said to impinge their much sought independence and performance.

By its practical objective, the Order  sought to grant financial autonomy to the State legislature by empowering the Accountant-General of the Federation to deduct funds for the state legislature and the judiciary from the Federation Allocations to the states and send directly to the heads of those arms of the State Government. 

Our understanding of this power is that the Accountant General, an appointee of the Federal Government, is enabled to take charge of the Appropriation Laws passed by the State legislature, which must be submitted to him, for the purpose of enforcement to see that what is due to the legislatures and judiciary in each State is sent to them, failure which the due sum deducted at source from the states’ share of the federation account and sent accordingly.

After its recital, the general purpose and intendment of the 9 sections Order decreed as follows: (a) Without prejudice to any other applicable laws, legislations and conventions at the State tier of Government, which also provides for financial autonomy of State Legislature and State Judiciary, allocation of appropriated funds to the State Legislature and State Judiciary in the State appropriation laws in the annual budget of the State, shall be a charge upon the Consolidated Revenue Fund of the State, as a First Line Charge.

(b) The Accountant-General of the Federation shall, by this Order and such any 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).

Not even under the military has our federalism been so assaulted and the governments of the constituent states of the federation so insulted. Even National Assembly which has legislative authority to make laws for the Federal Government has not been so audacious as to seek to render the States so prostrate by holding them in their financial jugular. Unfortunately, respective states Governments, particularly in the Buhari era have, except for a few, allowed themselves to be so cowed that they submit wittingly or unwittingly to blackmail from powerful institutions, that they surrender the autonomy of the State as Government of co-ordinate powers with the Federal Government in each of the two tier’s area of legislative authority as specifically designed by the constitution in spite of its unpardonable flaws as a federal grundnorm.

In this warped federation, the states governments, most of whom are really not more than salary paying institutions, particularly the Governors are held responsible for all the ills of the country. 

The states are the Governments closest to the people, therefore the performance  of the states are more easily and readily measured by  the welfare of the people. In other words, the states are more exposed to the scrutiny of the people and ipso facto, their wrath.

Even from the cocoon of  their hallowed  libraries thought to shield them from civics, their Lordships at the Supreme Court are not so insulated as they remarked, albeit obiter, that “we are not unaware of the hanky-panky, subterfuge played by state governors against the independence and financial autonomy of state judiciary. It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.

Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions… the Executive Order is to aide the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the state have always denied. This is not unconstitutional.”

Without holding brief for State governments, in some of the public perceptions, we make bold to say that the federating states of the Nigerian federation, have been at the pitiable receiving end of the ills of the 1999 constitution. Time there was, under the 1963 constitution where the masses were less bothered about the Federal Government; where the shakers and movers of the federation were content, like Sir Ahmadu Bello and Obafemi Awolowo, to hold their regions, in the first place. While the likes of Awo ventured for Federal powers, it was clear to all that it was to enact the unequalled glorious foundation already laid in the West by him and his colleagues. 

One often wonders why the feat performed by those young men of their era from Awo, Sardauna, Okpara to Osadebey, who were in their 40s, could not since be repeated in the regions making these men the only colossus that have traversed our territory. The answer is not in their stars nor are their offspring of doubtful genes. It is the structure of the federation at any time that makes the difference.

Unlike in the time of yore, when the government at the centre was fed from resources permitted it by the constitution to gather from the regions, it is now the states that beg for peanuts from all that the constitution steals from the states for the centre. The states now beg for an increase.  The Federal covets and collects all revenue, in addition to import and export duties and such federal taxes, mineral royalty, consumption tax, environmental protection, education, property etc, while states are meant to feel obliged that some peanuts are given.

The revenue allocation formula unilaterally in percentages, gives the Federal Government 52.68, States 26.72 Local Governments 20.60 and derivation 13. We once said on this page, that the amount budgeted by Federal Ministry of Agriculture is more than the annual budget of many states where agricultural activities and development truly take place. 

Unfortunately, the present governors, except for a few of them, have resigned to fate, either as a desire to remain politically correct, or would not be bothered, like their colleagues in the Obasanjo and Yar’adua/Jonathan eras, to challenge the anti federalism acts of the Federal Government.  Professor Yemi Osinbajo, now Vice President, when he was Attorney General of Lagos state, demonstrated the enormous instrumentality of law as weapons of social change.

On creation and administration of Local Government, management  of internal waterways, urban and regional planning etc, Lagos State successfully challenged the Federal Government. All the State Governors, jointly wrestled their listed and residual powers from encroachment by the Federal Government. 

Some of the cases, reported, using the Attorney General of Abia State, the first in the  alphabetical order of the states as the first party, tackled the Federal Government variously and successfully in matters such as Local Government  administration, elections into Local Governments, revenue allocation with respect to power of the President under Section 315 of the constitution and determination of the seaward boundary of a littoral state for the purpose of benefit from the 13% oil derivation formula

Writing about Executive Order in the United States, where we derived our Presidential constitution, the authors of Wikipedia say “in the United states, an Executive Order is a directive by the President of the United states  that manages operations of the  Federal  Government. For want of space, it is safe to conclude that the Executive Order is limited to the operations of the Federal Government and never contemplated to make the President and his appointees Supervisors of the State Governments in a true federal State like the United States of America. Nigeria, we hail thee.

Ebiseni is Secretary General, Afenifere.

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