Financial autonomy: Why Executive Order 10 can’t stand – Governors

State governors on Friday took their case on Executive Order 10 which guarantees financial autonomy for the judiciary and the legislature at the state level directly to President Muhammadu Buhari and the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN).

Chairman of the Nigeria Governors’ Forum (NGF), Dr. Kayode Fayemi, met separately with the President and the minister to press home the objection of the state chief executives to the order, which was signed by Buhari penultimate Friday.

To the governors, the order is not only unnecessary; it is also an over-kill of Section 121(3) of the 1999 Constitution.

They have a supporter in the immediate past Senate Deputy President Ike Ekweremadu, who said that while the intent of the President in signing the order might be good, the action was unnecessary and unconstitutional.

Ekweremadu said that the President should have stopped only at signing the bill on the financial autonomy as passed by the 8th National Assembly.

The governors, during a virtual meeting earlier in the week, mandated Fayemi to pass their views on the order to the appropriate quarters.

It was gathered that Fayemi met with the President and Malami on Thursday, accordingly.

A North-Central governor, who spoke in confidence, said: “We mandated the NGF chairman, Dr. Kayode Fayemi to have audience with the President and Malami to avoid a recourse to legal tussle on the interpretation of Section 121 (3) of the 1999 Constitution.

“We prefer dialogue to confrontation because we consider Executive Order 19 as unnecessary and an over-kill of the existing constitutional provision. You can see that in the last few days, AGF Malami has been trying to justify EO 10.

“And the NGF chairman on Thursday had closed door sessions with the President, where all the defects in EO 10 were spelt out.

“In another meeting with Malami on Thursday, the two parties agreed that some of the autonomy modalities were constitutionally flawed. The session reviewed the reservations of the governors.

“There will be a follow up with the AGF and Minister of Justice by the NGF Legal Committee comprising the governors of Sokoto, Plateau and Ondo states.”

Another governor said: “For a federating nation, there are so many extraneous clauses in EO 10 which are in conflict with the 1999 Constitution. For instance, Section 7 7(a) of the order made provision for a Presidential Implementation Committee to ensure compliance.

“For instance, in some states, there is already Appropriation Law for the State Legislature and the Judiciary. Of what use is this E0 10 then?

“In most states, we have a Joint Account Allocation Committee. Are we saying that EO 10 is superior to a state’s law enacted by the House of Assembly?

“Instead of rushing to issue EO 10, the appropriate thing for the Federal Government is to sit down with the governors and agree on autonomy modalities in line with Section 121(3) of the constitution.”

Sources said there is anxiety among the governors that the Federal Government may withhold the allocations of states that do not  implement autonomy for its legislature and judiciary.

A North-West governor said: “”It is also wrong to ask the Accountant-General of the Federation in 7(b) of EO 10 to “take appropriate  steps  to ensure compliance with the provisions of this Order. This is like giving a sword to the Accountant-General of the Federation to kill.

“We may witness a repeat of the era of the administration of ex-President Olusegun Obasanjo when Lagos State’s statutory allocations were seized for no just cause.

“All the governors are not happy that the Minister of Justice and the Accountant-General of the Federation can determine the fate of a state based on EO 10.”

The Executive Order 10 reads in part: “WHEREAS a Presidential Implementation Committee was constituted to fashion out strategies and modalities for the implementation of financial autonomy for the State Legislature and State Judiciary in compliance with section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended); taking into considerations all other applicable laws, instruments, conventions and regulations, which provides for financial autonomy at the state tier of government;

“There will be a follow up with the AGF and Minister of Justice by the NGF Legal Committee comprising the governors of Sokoto, Plateau and Ondo states.”

Another governor said: “For a federating nation, there are so many extraneous clauses in EO 10 which are in conflict with the 1999 Constitution. For instance, Section 7 7(a) of the order made provision for a Presidential Implementation Committee to ensure compliance.

“For instance, in some states, there is already Appropriation Law for the State Legislature and the Judiciary. Of what use is this E0 10 then?

“In most states, we have a Joint Account Allocation Committee. Are we saying that EO 10 is superior to a state’s law enacted by the House of Assembly?

“Instead of rushing to issue EO 10, the appropriate thing for the Federal Government is to sit down with the governors and agree on autonomy modalities in line with Section 121(3) of the constitution.”

Sources said there is anxiety among the governors that the Federal Government may withhold the allocations of states that do not  implement autonomy for its legislature and judiciary.

A North-West governor said: “”It is also wrong to ask the Accountant-General of the Federation in 7(b) of EO 10 to “take appropriate  steps  to ensure compliance with the provisions of this Order. This is like giving a sword to the Accountant-General of the Federation to kill.

“We may witness a repeat of the era of the administration of ex-President Olusegun Obasanjo when Lagos State’s statutory allocations were seized for no just cause.

“All the governors are not happy that the Minister of Justice and the Accountant-General of the Federation can determine the fate of a state based on EO 10.”

The Executive Order 10 reads in part: “WHEREAS a Presidential Implementation Committee was constituted to fashion out strategies and modalities for the implementation of financial autonomy for the State Legislature and State Judiciary in compliance with section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended); taking into considerations all other applicable laws, instruments, conventions and regulations, which provides for financial autonomy at the state tier of government;

“Whereas implementation of financial autonomy of the State Legislature and State Judiciary will strengthen the institutions at the State tier of Government and make them more independent and accountable in line with the tenets of democracy as enshrined by the Constitution of the Federal Republic of Nigeria 1999 (as Amended); and

“By the power vested in me as the President of the Federal Republic of Nigeria under Section 5 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended), which extends to the execution and maintenance of the Constitution, laws made by the National Assembly (including but not limited to Section 121(3) of the 1999 Constitution (as Amended), which guarantee financial autonomy of the State Legislature and State Judiciary.

“Now, therefore, I, Muhammadu Buhari, President of the Federal Republic of Nigeria, in exercise of the power conferred on me, do hereby orders as follows:

“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.

“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, authorize 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).

“Subject to section 8(1) of this Order, implementation of the provisions of this Order shall be carried out by the Presidential Implementation Committee in accordance with its recommendations.

(b)  To the extent as may be permitted by law, the Accountant-General of the Federation shall take appropriate steps to ensure compliance with the provisions of this Order and implementation of the recommendations of the Committee, as may from time to time be made.

(c)  This Order shall be implemented consistently with States applicable laws that guarantee financial autonomy of State Legislature and State Judiciary and subject to the availability of funds.

Defending EO 10 however, Malami said it was designed to force constitutional compliance with Section 121(3) of 1999 Constitution.

He spoke on Thursday at the Radio Nigeria programme “Politics Nationwide”.

In a statement through his Special Assistant on Media, Dr. Umaru Jibrilu Gwandu, the Minister said “Executive Order No. 10 is meant to bring about the constitutionality associated with the autonomy of the state legislature and judiciary.

He said the order was also “intended to achieve supervisory role by assigning responsibilities and ensuring proper supervision desired for the purpose of enforcement and application of autonomy constitutionally granted states legislature and judiciary as contained in Section 121(3) of the 1999 Constitution of the Federal Republic of Nigeria.

He said: “The Executive Order is therefore a necessary tool for the purpose of bringing into effect such autonomy by way of assigning certain responsibilities, both institutional and otherwise necessary for the purpose of enforcing the autonomy.

“By way of example, therefore, if the Federal Government wants to withhold the resources of a State Government that refuses to comply with the constitutional provision relating to the autonomy of State Legislatures and Judiciary, then the Federal Government may require the services of the Office of the Accountant-General of the Federation”.

“Similarly, if the government wants the state legislature to be part of the process relating to appropriation, for example, agreement must be reached on the need for the state legislature to be alive to their responsibility.”

Ekweremadu faults Executive Order 10

Former Deputy President of the Senate, Senator Ike Ekweremadu, on Friday faulted the Executive Order No. 10, noting that while the intent might be good, the action was unnecessary and unconstitutional.

Ekweremadu also picked holes with the controversial Control of Infections Disease Bill 2020 and the National Health Emergency Bill 2020 now before the National Assembly, explaining that they negated the Constitution and could not possibly succeed as currently drafted.

The former Chairman of the Senate Committee on Constitution Review equally criticised the restriction of movements and other rights ordered by the Federal Government and several states in managing the COVID-19 pandemic.

He said that while the restrictions were “absolutely necessary,” they “failed the constitutionalism test” and could only be overlooked on the grounds of Doctrine of Necessity.

He spoke in a radio interview in Enugu.

His words: “We, the members of the 8th Assembly, passed the amendment to the Constitution to grant financial autonomy to the State Judiciary and Legislature because we believed that for the sake of their independence, they should be on the First Line Charge of the states’ Consolidated Revenue Account.

“And when we passed them, the President dutifully signed them into law (over a year ago).

“That should have been the end of it because the amendments are self-executing.

We expected that having done that, the states should go ahead to work out the modalities. But that didn’t happen.

“So, the President now set up a Committee headed by the Attorney-General of the Federation to work out the modalities for implementation.

“I think it was at that point that they deemed it necessary to come up with an Executive Order to strengthen the implementation.

“But regrettably, they have simply mutilated those provisions of the Constitution as amended.

“Now, they are adding some aspects suggesting to the states how to manage their funds because part of that Executive Order is that in the next three years, the judiciary in the states should dedicate part of the monies coming to them to capital projects for the State Judiciary.

“It went ahead to suggest that if the governors fail to remit these monies to State Judiciary and State Legislature, then the President could direct that these monies be transferred straight from the Federation Account to the State Judiciary and Legislature.

“This in itself was not part of what we amended in the Constitution and it is not part of the Constitution.”

On the way forward, Ekweremadu advised the Governors to approach the President and point out those mistakes so that he could withdraw the executive order.

“And unfortunately, if they go to court, the implication is that the application of that amendment regarding financial independence of the State Judiciary and State Assembly will be put on hold because so long as they are in court, those provisions will not be implemented.

“So, it something the Governors and the Attorney General and the President need to settle amicably.”

On the infectious disease Bills before the National Assembly, he said the bill would not be passed by the National Assembly in its present form because “it appears to me that the Bill is even more dangerous than the diseases they are meant to control.

“If you look at some parts of the Bill, it says if you have any problem with the order or actions of the Nigeria Centre for Disease Control (NCDC), you have to appeal to the Minister and whatever the Minister says will be final.

“But Section 4 (8) of the Constitution says that no attempt should be made by the National Assembly or any State Assembly to make any law that ousts or purports to oust the jurisdiction of the court. In other words, you have right to go to court if you have any issues.” (The Nation)