Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Achieving judicial and legislative financial autonomy in the states 09 Jul 2020

On the 22nd of May, 2020, President Muhammadu Buhari signed Executive Order 10, which seeks to establish the financial autonomy of the legislature and judiciary at the state level. Many newspapers reported that the President signed the order “into law.” Not surprisingly, the reports sparked a debate about the constitutionality of the order.

In my article in the November 2018 edition of this publication, I assessed the legality of executive orders and I still maintain, as I wrote then, that executive orders constitute practical tools by which the President carries out his constitutional governmental duties. They can, thus, be validly issued to ministries, departments and agencies (MDAs), which are part of the executive arm of government. The President can also use executive orders to implement executive policies as long as they do not violate any existing constitutional and/or statutory provision.

However, executive orders do not constitute laws in the legislative sense. Lawmaking falls exclusively within the purview of the legislative arm of government.

The objective of the Executive Order 10, also known as the “Implementation of Financial Autonomy of State Legislature and State Judiciary Order, 2020,” is to enforce the implementation of the 4th Alteration to the Constitution and provide a practical framework for the legislative and judicial arms of state governments to have financial autonomy. The 4th Alteration, which amended Section 121(3) of the Constitution, provides that: “Any amount standing credit of the – 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 judiciary, such amount shall be paid directly to the Heads of the Courts concerned.”

Prior to this amendment, Section 121(3) – and the similar provision contained in Section 81 of the Constitution, which relates to the federal government – provided autonomy for only the judiciary.  

The president’s executive order authorizes the Accountant-General of the Federation to deduct from source, the money due to the legislatures and judiciaries of states from the monthly allocations of states whose executives fail to grant financial autonomies to the other two arms of government.

The order also directed every state government to set up a committee comprising the Commissioner of Finance, the Accountant-General of the State, a representative of the state’s Budget Office, the Chief Registrar of the High Court, Sharia Court of Appeal and Customary Court of Appeal as applicable, the Clerk of the House of Assembly and the Secretary of the State Judicial Service Committee or Commission. This committee is to be accorded legal recognition in the appropriation laws of the states. The committee’s main task is to, where applicable, determine based on the revenue profile of the state, a workable budget for each arm of the state government.

The executive order also provides that each state judiciary is to set up a state judiciary budget committee, which would be responsible for preparing, administering and implementing the budget of the judiciary. The committee would comprise of the state’s Chief Judge as Chairman, the Grand Kadi of Sharia Court of Appeal or President of Customary Court of Appeal as applicable, and two members of the Judicial Service Committee/Commission to be appointed by the Chief Judge. The Chief Registrar is to serve as Secretary of the committee.

The lack of financial autonomy for the legislative and judicial arms of government has been a long-standing issue, especially with respect to the judiciary, which was even guaranteed such autonomy prior to the 4th Alteration. The desire to uphold judicial financial autonomy led prominent Senior Advocate of Nigeria, Olisa Agbakoba, to file a suit against the Attorney-General of the Federation (AGF), the National Judicial Council (NJC) and the National Assembly in February 2013. His suit challenged the extant methods of appropriating the judiciary’s budget in the Appropriation Bills, as opposed to being a first-line charge paid directly to the judiciary. He contended that this was contrary to the constitutional provisions of Section 81(3) of the 1999 Constitution.

The Judiciary Staff Union of Nigeria (JUSUN) instituted a similar action against the NJC, AGF and the Attorneys-General of the states in the same year, and also claimed reliefs for the implementation of the financial autonomy of the judiciary at both the federal and state levels in accordance with the provisions of Sections 81(3) and 121(3) of the 1999 Constitution. Both suits were decided in favour of the financial autonomy of the judiciary. However, more than five years later, major parts of the judgments are still being disobeyed as state governments continue to breach the Constitution.

The interim report of the Presidential Implementation Committee on the Autonomy of the State Legislature and State Judiciary states that no state of the federation, apart from the Federal Capital Territory (FCT), has complied with the provisions of Section 121(3) of the Constitution. The committee’s report ties the non-compliance to the non-availability of uniform modalities for full compliance as obtainable at the federal level. Thus, the report posits that a template, modeled after the framework at the federal level, should be developed to serve as a uniform standard for implementation by the states. This position is what eventually led to Executive Order 10 of 2020.

In his written address supporting his originating summons, Agbakoba argued that, “the continued dependence of the judiciary on the executive arm of government for its budgeting and funds release is directly responsible for the present state of underfunding of the Judiciary, poor and inadequate judicial infrastructure, low morale among judicial personnel, alleged corruption in the judiciary, delays in administration of justice and judicial service delivery, and general low quality and poor out-put by the judiciary.”

Another outcome of the state executive’s control of the purse strings is the notion that houses of assembly are rubber stamps of state governors.

Indeed, the efficiency of the judiciary hinges on its independence, which is inextricably tied to its financial autonomy. The ability of state legislatures to truly provide checks and balances for the state executives is reduced to nothing when the lawmakers have to lobby and practice eye-service for the purpose of accessing funds that legitimately belong to them.

The constitution is the most powerful governing document in Nigeria. Its effect cannot be compared to an executive order. It commands or ought to command obedience without the assistance of any order – executive or judicial. What the President has tried to do is to ensure the performance of the constitutional provisions by arm-twisting the state governments. It is also fair to state that the structure of the order provides a very practical guide for the states to implement the constitutional provisions. Notwithstanding the foregoing points, the legitimacy of Executive Order 10 is questionable.

First, given the clear provisions of the Constitution, each state of the federation is autonomous. Hence, only the governor of a state has executive powers over the state, except in specific matters otherwise provided in the Constitution. Neither the President nor the Accountant-General of the Federation has powers over the consolidated revenue funds of any state. The President cannot give directive as to what laws are to be enacted by the state legislatures.

The President’s directive to the Accountant-General of the Federation to deduct funds from the Federation Account on behalf of state judiciaries and legislatures whose executives have denied their financial autonomies is in breach of another constitutional provision. Section 162(4) of the Constitution states that any amount standing to the credit of the States in the Federation Account shall be distributed among the states on such terms and in such manner as may be prescribed by the National Assembly. Hence, the President cannot withhold or direct any deductions from the funds due to any state government in the Federation Account.

How do we then get our state governors to obey the constitution and grant financial autonomy to their counterparts in the judiciary and the legislature? Do we return to the courts when there is already a subsisting judgment in the JUSUN case that is yet to be obeyed? Strike actions undertaken by JUSUN at different junctures since the judgment have not yielded the desired outcome.

I believe it is left for the lawmakers and the judiciaries at the state level to develop political will and demand and ensure complete obedience to the constitution with regard to their financial autonomy. The current officials have to be more passionate about financial autonomy than being obsequious to the governors or seeking to save their political necks or careers.

The state legislatures and judiciaries do not need the President to come to their aid with an unconstitutional order. After all, Buhari already back-pedalled on the executive order by suspending its implementation following a meeting of the governors with the President last month. It’s time for the lawmakers and judiciary to harness the powers they possess to check the executives.