Executive Order 10: Why Governors Can’t Celebrate Yet

LAST Friday, the Supreme Court of Nigeria dealt a major blow to a signature agenda of President Muhammadu Buhari, when it shot down Executive Order 10, ceding financial autonomy to state legislature and judiciary.


In siding with the state governors who sued the president over the “gift” to the other arms of government in their respective domains, the apex court communicated two major messages to the executive leadership of the country.


One is that the executive cannot engage in the process of lawmaking through a back channel, and two, it was needless gifting state legislature and judiciary, what they already have, constitutionally.


Before the landmark pronouncement, legal heavyweights like renowned constitutional lawyer, Professor Ben Nwabueze, now late Chief Ladi Rotimi-Williams, both silk, and many others, had slammed the move as patently illegal and unconstitutional.


Due to the perceived rascality of the state governors, there were other senior lawyers like Mr. Femi Falana and Chief Mike Ozekhome, both silk too, who were astride on the controversy, asserting that a resort to self-help by the Buhari administration was as wrong as the reckless orientation of the governors, towards the other arms of government in their domains.

Uncharacteristically, Falana said, “Frankly speaking, Executive Order 10 on deduction of the funds for the judiciary from source is totally unnecessary. At the same time, the refusal of state governments to comply with section 121 of the Constitution is embarrassingly indefensible.

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“Section 81(3) of the Constitution provides that any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the Federation shall be paid directly to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the State under section 6 of the Constitution.


“Furthermore, Section 121 (3) of the amended Constitution has prescribed that the fund of the Judiciary and House of Assembly in the Consolidated Revenue Fund of the state shall be paid directly to both institutions.


“These constitutional provisions have been confirmed by two judgments of the Federal High Court which have directed the federal government and state governments to comply with the provisions of section 81 (3) and 121 (3) of the Constitution.

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“Both sections and the judgments have been disregarded. On that score alone the President is under a legal obligation by virtue of section 287 of the Constitution to ensure compliance with the valid and binding orders of the Federal High Court on the matter. The federal government has complied with the judgements while state governments have ignored them without any legal basis.”


In what also appears like splitting the justice of the matter, the apex court also denied the N66 billion demand of the governors from the Buhari administration and directed their continuous funding, of judicial divisions. Before the Buhari administration ran into legal turbulence with EO 10, signed into existence in May 2020, it had navigated what could have been a crosshair on Executive Order 6, clinging to public sentiment which widely viewed it as effective instrument, against corruption.

Tagged “Preservation of Suspicious Assets and Related Schedules”, the concern of some Nigerians, particularly opposition elements from the Peoples Democratic Party (PDP), that the Order would become an oppressive tool in the hand of the administration, was brushed aside as corruption fighting back. The public bought the welcoming optics of the Order, which many argued should have emanated from the federal lawmakers, and because only the likes of former Deputy President of the Senate, Ike Ekweremadu, were feeling the heat at the time, leading to temporary seizure of his assets, the controversial Order, was passed, for the administration.


There was also Executive Order 4 which touched on what some also felt should be a lawmaking process, but arbitrarily birthed, by the executive arm.

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Known as “Establishment of the Voluntary Assets and Income Declaration Scheme (VAIDS)”, a few had wondered if it wasn’t a duplication of what the Code of Conduct Bureau was set up to do, since the Order can only be implemented within the public sector. Political interpretations were also read into it, but its constitutionality wasn’t challenged in court.


Apart from seemingly telling the Buhari administration it can’t engage in illegality again and get away with it, the Supreme Court has also spoken clearly about the constitutionality of the independence of the Judiciary, a debate that has always raged, but with little in official actions, to show for the fireworks.


The Nigerian Tribune learnt before the landmark pronouncement that the judiciary was tired of being the whipping boy of the polity and going forward, big decisions and steps would be felt everywhere. The judgement looks like a confirmation of the judiciary rising to the occasion for itself and the country.


A Senior Advocate of Nigeria, who wants his identity withheld, wondered why the National Assembly whose lawmaking function, the Supreme Court ruled, was usurped by the Executive, wasn’t the one, suing.


He also knocked the media for being silent on the “obvious dictatorship” the Order and others like it, represented, adding that the legal community, despite the strong affinity with the governing establishment, jubilated when the apex court summoned the courage to annul the Order.


One major fallout of the judgement is the governors of Buhari’s All Progressives Congress (APC), eventually picking courage to challenge his administration, by participating in the suit. It shows party loyalty counts for little when state affairs are going to be substantially affected by decisions of the central government.


After the “victory” of last week, many expect they will likely tee up on other issues, like revenue, allocation, sharing formula and consumption tax.


Within the ruling party, the outcome of the collective challenge to the defunct EO, is likely to propel more judicial confrontations between governors and the presidency, on major party matters, while more PDP governors may embrace the judicial route, like Mr. Nyesom Wike of Rivers State.

After the “contest” at the National Assembly, between governors and the leadership of the Judiciary over the 846 state judges, and the failed attempt to nix the National Judicial Council (NJC), in the amended constitution, the state helmsmen may soon discover their perceived victory at the apex court, is the beginning of a fresh battle on judicial autonomy. Kayode Ajulo, constitutional lawyer, is a sympathiser of the downed Order.


However, he believes the constitutional provision on the autonomy of the Judiciary and Legislature, is sacrosanct and must be implemented.


“Despite the decision of the Supreme Court, it must be reassuringly stated that autonomy of the Judiciary and Legislature is extant, subsists, vital and must continue to be activated for the good of our republic” he stated in a statement to Nigerian Tribune.


Feelers from the Judiciary portray a restless system seeking to take its due. Interestingly, the state governors that went away from the Executive Order battle, feeling like the winner, are the real culprits in the denial of judiciary’s constitutional entitlements.

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