…it merely affirms the financial autonomy already donated to State Legislatures and Judiciaries, by the Constitution, – Oshoma.
…it’s very clear that the executive powers vested with President under section 5 subsection 1 of the constitution started with the phrase ” SUBJECT TO” which makes powers granted to the president under section 5 subsection 1 subservient to the powers granted to the state governors on the section 121 subsection 1 2 3 of the 1999 constitution.- Anene
On May 20, 2020 President Muhammadu Buhari signed the Executive Order 10, giving financial autonomy to the legislature and judiciary at the state level, at that very point, many believed that the President innocently crossed the state governors’ red-line, possibly cut down on their powers over the local governments.
By reason of the Presidential system of government that Nigeria runs, there should be three arms of government- Executive, Judiciary and Legislature- with clear separation of powers at the federal, state and local government levels. But what the country has always had is a travesty of democracy with a dominant executive that has very powerful and over-bearing influence on the other two.
The Order, which political pundits say is normal and constitutional in democratic norms, has empowered the accountant-general of the federation to deduct funds for the state legislature and the judiciary from the federal allocations to the states and give same directly to them.
Executive Order, they say, is not new in world democracy and, according to Abubakar Malami, Attorney-General of the Federation (AGF), it is often exercised by leaders in developed nations to promote legislature, judiciary autonomy and deepen democracy.
“The President has executive powers in Section 5 to implement and execute Section 121 of the constitution; it is the responsibility of the President. The constitution guarantees the autonomy of the state legislature and judiciary and it is the responsibility of the President to make sure this is recognised,” the AGF explained.
Two Honourable lawyers in an Exclusive Interview with Control TV in Abuja have submitted divergent views on the constitutionality of the Presidents Executive order 10.
Asked, if the Executive order 10 is Constitutional?
Liborous Oshoma:
– ” Yes it is as it 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, he added.
“It 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 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) of the constitution
That was the position of the Supreme Court in the case of AG. ABIA STATE & ORS v AG. FEDERATION (2003) LPELR-610 (SC); AG. BENDEL STATE v AG. FEDERATION (1983) LPELR-3153 (SC)
Another Constitutional Lawyer and Human Rights Activist Emmanuel Anene in an exclusive interview with Control TV today said:
“Executive Order is a rule or directives issued by the Executive (ie President, Governor or Local government chairman) for the smooth conduct of his government business.”
Such executive Order is inferior to the Constitution, Act of National Assembly or Law made by the State Houses of Assembly and bye-laws made by the Local government legislative council, he said.
“Executive Order is not a law per se neither does it have the equal status with the law especially in a given democratic society.”
“Its inferiority is made worse in country practicing federal system of government like ours where the Constitution clearly spelt out the power of the three arms government in Section 4 (legislatures… law making), Section 5 (executive… law enforcement and implementation) and Section 6 ( judiciary…law interpretation).”
According to him, “Consequently , when Mr President purported to have signed into law Executive Order no 10, 2020, he does not do so in the sense of Constitutional provisions which empowered to sign Bill passed by the National Assembly.”
The Executive Order no 10, 2020 however well intentioned as it may seem, remain illegal, unlawful, unconstitutional and of no effect so long as 1999 Constitution remain as it is at the moment.
“Its very clear that the executive powers vested with President under Section 5 (1) of the constitution started with the phrase “SUBJECT TO” which makes powers granted to the President under Section 5 (1) subservient to the powers granted to the State Governors under Section 121(1-3) of the 1999 Constitution.”
Barrister Anene wen further to submit that, “Whereas the President is vested with the exclusive powers to prepare expenditure for both the National Assembly and Federal judiciary, The same responsibility for appropriation for the State House of Assembly and State judiciary is vested with the State Governor.”
The President signing of the Executive Order no 10, 2020 to deduct from the source amount standing to the credit for both the State Houses of Assembly and the State judiciary has overreacted the Governors’ powers as enumerated in Section 121 (1-3) of the 1999 Constitution as amended which renders Executive Order no 10, 2020 as illegal, unconstitutional, void and of no effect as the President by his action seeks to modify an unambiguous provision of our Constitution which is the ground norm.
(C) Control TV 2020.
