By Dennis N. Ezika Esq

INTRODUCTION

President Muhammadu Buhari on Friday May 22, 2020 promulgated Presidential Executive Order No. 10 of 2020 (“EO”) for the Implementation of Financial Autonomy for the State Legislature and State Judiciary as guaranteed under section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) (“the CFRN”).

Constitution of the Federal Republic of Nigeria 1999 (fourth alteration No. 4) act, 2017 created a new subsection 3:

Any amount standing to the credit of the

House of Assembly of the State and
the 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.

FAR REACHING PROVISIONS OF THE EO
First Line Charge: 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.

Deduction and/seizure from the Federation Account funds due to the defaulting State Governments: The Accountant-General of the Federation, shall by this EO and any other 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 CFRN
Determination of the Budget: Every State Government to set up a Committee to determine and ascertain from the Revenue profile of the State, a workable budget for each Arm of the State Government based on the request and needs of the Accounting Officers.

The membership of the Committee shall comprise the Commissioner of Finance, Accountant-General of the State, representative of the State Budget Office, Chief Registrars of the various courts, the Clerk to the State House of Assembly and the Secretary of the State Judicial Service Commission.
Creation of State Judiciary Budget Committee: Each State Judiciary shall set up a State Judiciary Budget Committee to serve as an administrative body to prepare, administer and implement the budget of the State Judiciary with such modifications as may be required to meet the needs of the State Judiciary. The Committee shall be headed by the Chief Judge and the Chief Registrar as the Secretary.

Release of funds to the State Judiciary: On appropriation of Funds, the State Judiciary Budget Committee shall on a monthly basis or as the case may be, request the Budget Office of the State to release the statutory allocation either quarterly or monthly and the Authority to Incur Expenditure (AIE) shall be raised by the Office of the Accountant-General of the State for the release of the Fund to all the Heads of Courts/Judicial Bodies in line with the Appropriation Law.
Budget Templates: The budget templates and models in the schedule to this Executive Order shall apply to State Legislature and State Judiciary with modifications, in compliance with Section 121(3) of the CFRN and such other applicable Laws.

Appropriation Law: All States of the Federation shall include the allocations of the two Arms of Government (legislative and judicial arms) in their Appropriation Laws. Existing Appropriation law of any State in default of the Financial Autonomy requirements should be amended.
Special Allocation for the Judiciary: In the first three years of implementation of this EO, there shall be special extraordinary capital allocations for the Judiciary to undertake capital development of State Judiciary Complexes, High Court Complexes, Sharia Court of Appeal, Customary Court of Appeal and Court Complexes of other Courts befitting the status of a Courts.
CONTENTIOUS PROVISIONS OF THE EO
The EO purports to entrench constitutional provisions of financial autonomy to the State Legislative and State Judicial arms of government donated under section 121(3) of the CFRN and to enhance principles of separation of power among the three arms of government. However, the fact remains that the President cannot in exercise of its executive powers either under the constitution or under any statute act in breach of any clear provisions of the CFRN. His actions must at all times be within the ambit of the constitutional provisions.

In AG LAGOS STATE V. AG FEDERATION[1], one of the major issues before the Supreme Court was Whether the President was right to direct the Minister of Finance not to release allocations from the Federation Account due to Local Governments in Lagos State and payable to Lagos State Government, due to an alleged breach of constitution by Lagos State Government in creating additional 57 Local Government Areas not recognised by the CFRN. The Supreme Court in resolving this issue and declaring the action of the President unconstitutional held that “the President, in whom the executive powers of the Federation is vested, is bound to protect and defend the Constitution but the constitution does not and could not have intended that the President in fulfilling his constitutional obligation in protecting and defending the constitution should commit illegality.”

The Supreme Court per Akintan (JSC) in AG LAGOS STATE V. AG FEDERATION (supra) further emphasized as follows: “Nigeria is a federation and operates a federal constitution. An important attribute of a federal constitution is that there is a division of power between the centre or the Federal Government, and the States. The powers and roles given to each of the governments are as defined and set out in the Constitution. None of the governments is allowed to step out of its assigned field. If it does, whatever it does outside its assigned field will be unconstitutional and will be declared null void by the court”.
Expenditures of the Legislative and Judicial arm on a “First Line Charge” on the Consolidated Revenue of the State.

The President in issuing the EO designated the appropriated expenditures of the State Legislative and Judicial Arms of government as a “First Line charge” on the Consolidated Revenue Fund of the State.
A “charge” in the above context means an encumbrance, lien or claim[2]. A first line charge therefore warrants that before any expenditure could be made from the Consolidated Revenue Fund of the State, funds would first be disbursed to cover the expenditures on the first line charge before other disbursements could be made.

It is worthy to mention and clarify that the remuneration, salaries and allowances of judicial officers of a State are not expenditures charged upon the Consolidated Revenue Fund of the State under the CFRN. In other words, such expenditures are not included in the first line charge or designated as a “charge” whatsoever in the Consolidated Revenue Fund of the State[3].
The remuneration, salaries and allowances payable to the Chief Judge and Judges of the Superior Courts of a State listed in the constitution constitute a Charge on the Consolidated Revenue Fund of the Federation[4].

Capital expenditures as well as recurrent expenditures of the judicial arm of the State fall under the Appropriation Bill of the State. These include the remuneration, salaries and allowances payable to Magistrates, Customary Court Judges, judicial workers and also include capital expenditure such as official residential Houses, Court premises, cars, etc. As earlier mentioned, the remuneration, salaries and allowances payable to judges are charged to the Consolidated Revenue Fund of the Federation.

The big questions here are (a) whether the framers of the constitution intended that the expenditures (both recurrent and capital expenditures) of the Legislative and Judicial arms of government in a State should be on a first line charge on the Consolidated Revenue of the State and (b) whether the President can use executive fiat such as the EO to amend clear provisions of the constitution. The answers are in the negative!
Section 121 (3) of the CFRN provides that “Any amount standing to the 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.’’

The purport of these constitutional provisions under section 121(3) of the CFRN is that upon the passage of the appropriation bill, the sum due to the State Legislature and the State Judiciary shall be paid directly to the Head of that arm; subject to the availability of the Funds in the Consolidated Revenue Fund of the State and subject to other competing expenditures of the State as contained in the Appropriation Law.

Unlike sections 84 (2) & (7) of the CFRN which designated the recurrent expenditure of judicial officers of the Federation (in addition to their salaries and allowances) as a charge on the Consolidated Revenue Fund of the Federation, the corresponding provisions under section 121(3) and 124 of the CFRN clearly omitted to put either the salaries, allowances or any of the expenditures (whether recurrent or capital) of either the judicial or legislative arm of government as a charge on the Consolidated Revenue Fund of the State. On the contrary, the drafters of the constitution intended that only the remuneration, salaries and allowances payable to the holder of offices in section 124 (4) of the CFRN, which excludes the expenditure of either the judicial or legislative arms of government, shall be a charge on the Consolidated Revenue Fund of the State.

It suffices to state that if there is a lacuna in the constitution or if same requires modifications, it behoves on the legislature to do same and not for the executive arm to usurp the legislative function and amend the constitution via executive fiat. The principles of separation of powers entail that between the executive, the legislature and the judiciary, neither arm should invade the province of the other and neither may control, direct or restrain the action of the other[5].
In UGBA & ANOR V. SUSWAM & ORS[6] the Supreme Court Per Rhodes Vivour held as follows: “…. the Constitution sets up a Federal system by dividing powers between the Federal and State Governments. It establishes a National Government divided into three independent branches. The Executive branch enforces the law. The legislative branch makes the laws, while the judiciary explains the law. There is no document superior to the Constitution in Democratic Governance. It is the heart and soul of the people…”

In OBI V. INEC & ORS[7] the Supreme Court per Aderemi JSC held as follows “I hold the strong view that law making in the strict sense of that term is (the function of) the legislature. Let there be no incursion by one arm of the government into that of the other. That will be an invidious trespass. Let me point out that no Constitution fashioned out by the people, through their elected representatives for themselves, is ever perfect in the sense that it provides a clear-cut and/or permanent or everlasting solution to all societal problems that may rear their heads from time to time. As society grows or develops, so also must its Constitution, written or unwritten. More often than not, the law, as passed by the legislators, may have produced a result or results which do not accord with the wishes of the people or do not meet the requirements of today. Let that defective law be put right by new legislation”.

In the circumstances, the prescription in the EO placing the expenditures of the State Legislative and Judicial arms of government as First Line Charge on the Consolidated Revenue Fund of the State ultra vires the powers of the President, is an usurpation of legislative function of the National Assembly and inconsistent with the provisions of the Constitution.
Deduction and/seizure from the Federation Account funds due to the defaulting State Governments
The EO mandates the Accountant-General of the Federation to deduction at source from the Federation Account, allocations due to a State that defaults in releasing funds meant for the State Legislature and State Judiciary in line with the financial autonomy guaranteed by Section 121(3) of the CFRN.
If the State Governments indulge in alleged continuous breach of an extant provision of the constitution, including s. 121(3), the Federal Government is not empowered by any law to act arbitrarily by withholding/deducting from allocation due to a State from the Federation Account.
The Supreme Court being the apex court in Nigeria and vested with the judicial powers of interpreting the law had said that failure of the State to allocate public funds as prescribed by the CFRN would constitute a breach of the relevant provisions of the Constitution and any such breach would be actionable in a court of law and cannot be enforced by executive sanction[8].

There is no constitutional power conferred on the President either under section 162 of the CFRN or under any provision of the Constitution to the withhold allocation due to another tier of government from the Federation Account on the basis of a conceived breach of the Constitution[9].
The provision of the EO authorising the Accountant General of the Federation to deduct from the Federation Account allocation due to a State who failed to comply with the EO is an arbitrary exercise of Presidential powers, a resort to self-help and utter disregard to rule of law and principles of separation of powers enshrined in the CFRN.

The only instance where the President is authorised by the CFRN to deduct from an amount due to a State Government by way of setoff is in respect of a loan made by the Federation to that State[10].
Payment due to a State Government from the Federation Account is a charge upon the Consolidated Revenue of the Federation and should be released to that State without deduction except as a setoff to offset a loan amount due[11].
Creation of additional obligations or duties on State Officials:

The doctrine of separation of powers is one of the core principles of a modern democracy and the rule of law. Its principles in a federal system of government entail that the Federal Government cannot dictate to the State Government how to carry out its state functions. The Federal Government cannot also impose on the States any additional duty/function aside from those prescribed by the constitution.
The Supreme Court had pronounced that neither the National Assembly nor the President has the Constitutional power to impose any new duty on the Governor of the State save for what was provided under the constitution; that such an imposition would normally meet with resentment and refusal to perform for the enforcement of which there is no Constitutional sanction[12].

In AG OGUN STATE VS. AG FEDERATION,[13] Ogun, Bendel and Borno States sought against the Federal Government a declaration that the Constitution of the Federal Republic of Nigeria (Adaptation of Public Order Act) Order, 1981, made by the President via executive order (S.I. No. 5 of 1981) which modified some of the provisions of the Public Order Act, 1979, was unconstitutional, null and void and of no effect. The Supreme Court upheld the constitutionality and validity of the Adaptation Order save for the modification made to Section 4(3) of the said Public Order Act which the court declared unconstitutional, null and void.[14] The Supreme Court in declaring the same void held that: “neither the President of the Federal Republic of Nigeria nor the National Assembly can unilaterally confer powers on a State functionary such as the Governor or the Attorney-General of a State and thus bring him within the investigatory or scrutinising powers conferred upon the National Assembly”

One of the striking principles laid down by the apex court AG OGUN STATE VS. AG FEDERATION (supra) was the President cannot in exercise of his constitutional powers violate express provisions of the said constitution. The Supreme Court in that case held per Fatai-Williams (JSC) as follows: “To construe the provisions of Section 195 subsection 4 of the Constitution as giving the Governor of a State the power of concurrence as the President has done in the Adaptation Order is, in my view, to do violence to the express provisions of that section. Consequently, by giving the Governor the power, the President, perhaps inadvertently, has committed an infraction of the provision of the said section….. I accordingly hold that this particular modification is unconstitutional and is therefore null and void and of no effect”.

It is clear from the provisions of the EO that the President ascribed new duties/obligations on State officials contrary to the provisions of the CFRN and the judgment of the apex court in AG OGUN STATE VS. AG FEDERATION (supra). These new obligations/duties on the State include composition and membership of State Judiciary Budget Committee, composition and membership of State Budget Committee, adoption of a budget template and instructing the States to set out special extraordinary capital allocations for the Judiciary.
Notwithstanding the good intentions of the President in signing the EO and the remedy which the EO seeks to provide, the President cannot by executive fiat dictate to the States how to run their affairs and how public funds should be allocated and doing same ultra vires the powers of the President under the CFRN.

In AG LAGOS STATE V. AG FEDERATION[15] the Supreme Court held as follows: “Nigeria operates a federal system of government. Section 2(2) of the 1999 Constitution re-enacts the doctrine of federalism. This ensures the autonomy of each government. None of the governments is subordinate to the other. This is particularly of relevance between the State Governments and the Federal Government, each being, as said by Nwabueze in his book, The Presidential Constitution of Nigeria, pages 39-42 , an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs within the Constitution, free from direction by another government”.
STATUTORY BACKING OF THE EO

Without going into the history of Executive Orders, it must be mentioned that Executive Orders have the force of law when signed by the executive and gazetted. By Section 5(1) of the CFRN the Executive Powers of the Federation is vested in the President and extend to the execution and maintenance of the CFRN, all laws made by the National Assembly and to all matters with respect to which the National Assembly has power to make laws. S. 5(2) of the CFRN also vests the Executive Powers of the State in the Governor.

The Courts have also taken judicial notice of executive orders as having the force of law unless challenged and set aside by the court[16].
In ELEPHANT GROUP PLC V. NATIONAL SECURITY ADVISER & ANOR[17] the court in upholding the validity of executive order held as follows: “In Law, an Executive Order is an order or regulation issued by the President or some administrative authority under his direction for the purpose of interpreting, implementing, or giving administrative effect to a provision of the constitution or of some or treaty. It is indeed an effective instrument or tool for good governance and administration by the Government”

Executive Orders having been judicially noticed by the courts have become part of our law. However, the court in its adjudicatory function may declare any or all the provisions of an executive order invalid, null and void if same ultra vires the power of the executive.
However, there had been instances where the court declared an executive order valid notwithstanding that the Executive Order made material amendments/modifications an existing law[18]. There had also been instances where the court declared executive order; particularly provisions that alter/amend clear provisions of the constitution, invalid and unconstitutional[19].

In AG ABIA STATE V. AG FEDERATION[20], the States through their respective Attorneys General challenged Statutory Instrument of No. 9 of 2002 (executive order) made by the then President Olusegun Obasanjo which modified an existing law; Allocation of Revenue (Federation Account Etc) Act of 1990 as amended by Decree 106 of 1992 in order to bring same in conformity with the CFRN pursuant to section 315 of the CFRN. The then President in modifying the existing law allegedly increased the allocation due to Federal Government in the Federation Account by 7.5% and same was challenged by the States as unconstitutional. The Supreme Court in dismissing the suit held, among other things, as follows: “….

It is true that separation of powers is essential to a healthy democracy, the power given the President and also to State Governors in existing law of the State by the Constitution is not an abuse of the principle or doctrine of separation of powers, it is essential to giving meaning to an existing law so that the Constitution itself is not abused. I therefore hold that the exercise of the power to modify the allocation formula in the existing Allocation of Revenue (Federation Account Etc.) Act (Cap. 16, Laws of the Federation of Nigeria, 1990) as amended by Allocation of Revenue (Federation Account Etc) (Amendment) Decree (No. 106 of 1992) is constitutional and within the scope of his right under the Constitution”.

It is customary that as soon as an executive order is signed/and gazetted, it becomes operational and effective. It is only the court of competent jurisdiction that can declare an executive order or any part thereof null and void.
In the circumstances and in view of the contentious provisions of the EO discussed above which touch on the very fabric of separation of power and rule of law enshrined in our constitution, it will be interesting to see how same will be resolved by the Supreme Court, if the matter is competently presented before it.

THE MISCHIEF IN S. 121 (3) OF THE CFRN AND THE REMEDY WHICH THE EO INTENDED TO PROVIDE
It should be noted that the EO was promulgated to fill a “lacuna” that exist under section 121(3) of the CFRN.
The intendment of the law under section 121(3) of the Constitution was that the funds due to the legislative and judicial arms of the state should be paid directly to the heads of those arm as soon as the funds are available to meet the said expenditures.

The Governors, being the heads of the executive arm of their respective States decide how the funds are released to meet the different expenditures contained in the budget and most times underfund the legislative arm and the judicial arm not withstanding the sum appropriated for each arm of government in the budget. The executive undoubtedly has wide discretion in implementing/executing the law, including the Appropriation Law.
The revenues in Appropriation Law are estimates and accrue to the Consolidated Revenue Fund of the State in piecemeal either monthly, quarterly or otherwise. The Executive decides the priority to be accorded to each heads of expenditure in contained in the Appropriation Law and how funds are released to meet such expenditures.

The legislative and judicial arms of the State to this end live/survive at the mercy of the executive arm with regards to funding and meeting budgeted expenditures. A State Governor thus exercises his discretion in determining, albeit unintended, the quantum of funds to be released to the other arms of government and when the funds will be released to the relevant arm of government. By so doing, the Governor exerts considerable influence over the operations and more particularly the decisions/actions of the other arms of government and in contrast to the principles of separation of power enshrined in the CFRN.

The heads of the other arms of government go cap in hand to the executive arm to appeal for the release of funds to carry out their statutory functions. To this extent, the Legislative and Judicial arms of government dare not disagree with the Governor in order not to incur the “wrath” of the Governor which may lead to poor funding of the budgeted expenditures of the arm of government involved. Absolute powers corrupt absolutely! The Governors most often than not use the “control the purse string” to bring the other arms of government in the State under their whims and control which negate the constitutional principles of separation of powers.

The Judicial arm is the most vulnerable in view of the lacuna in s. 121(3) mentioned above. We have seen how some state executive members and members of the legislative arm change fleet of exotic cars every two years whilst judicial officers in the State use rickety cars for close to 8 years without State intervention. We have heard humiliating stories of how Chief Judges of some States go to government house and wait for several hours to see the Governor to seek approval and release of funds due to the judicial arm.
We have also seen demeaning pictures of how State High Court Judges and Magistrates line on rows to receive official cars from their Governors, after years of neglect and the effrontery of those Governors in listing the said purchase of cars as part of their administration’s achievements.

We have also seen how powerful the Governors are in determining who gets appointed as a judge in their respective States even though the CFRN donated exclusive powers to National Judicial Council (NJC) to screen and appoint judges throughout the federation. This is so because the NJC prior to appointing judges for the States requires their respective State Governors to provide court house, car and accommodation and the Governors leverage on same to exert influence over such appointments.
A more disturbing scenario was witnessed in one of the States in the South Eastern part of the Country wherein the State Governor organised a Christmas Party for the Judicial arm and gave the Judges and Magistrate small handouts as Christmas gifts; ostensibly from the allocations due to the Judicial arm. These ‘learned’ Justices and Magistrates on receiving the said handouts turn to praise singers and/or bootlickers of the Governor.

The constitutional guaranteed independence of an arm of government could be easily compromised if the release of fund to the said arm of government is at the discretion of another arm of government. No arm of government can effectively function or discharge its constitutional duties without proper funding.
CONCLUSION
True financial autonomy of the three arms of government in both Federal and State Government will guarantee the independence of each arm of government, guard against totalitarianism, protect the constitutional principles of separation of powers and indeed deepen democratic principles.
However, the said financial autonomy should not and cannot be made through the back door via executive fiat.

The relevant provisions of the CFRN should be amended by the Legislature to grant full and true financial autonomy to the State Legislative and Judicial Arms of Government.
The Nigerian Governors Forum through its Chairman Dr. Kayode Fayemi of Ekiti State stated on Month day the 8th day of June 2020 that they met with the President and communicated their concerns on the implementation of the EO and that the President in return agreed to delay gazetting of the said EO to enable the parties harmonise the issues and address them.

A long-term political solution would be to amend the constitution with a view to granting a true and clear financial autonomy to the Legislative and Judicial arms of government. Some of the laudable provisions promoted by the EO may be considered and incorporated in the said amendment to the CFRN with a view to ensuring a true and clear financial autonomy to the respective arms of government.

These provisions include but not limited to determination of budget for each arm of government, The budget templates and models in the schedule to this Executive Order shall apply to State Legislature and State Judiciary with modifications, in compliance with Section 121(3) of the CFRN and such other applicable Laws, providing constitutional safeguard and monitoring to guard against abuse of public funds and above all, designating the approved budget for the legislative and judicial arms of government as a charge on the Consolidated Revenue Fund of the Federation/State (as the case may be) in order to remove the element of discretion on the part of the executive arm in disbursing funds to the other arms of government.

A Short-Term political solution would be for the President re-tune the EO to achieve workable document without undermining the “financial autonomy” of the State Legislative and Judicial arms of government as well as the expenditures of the States.
In the event that the Federal Government and the State Governments could not find a political resolution to the issues surrounding the EO, it is expected that State Governors through the respective Attorneys General would challenge the constitutionality of the EO.

What ever the outcome would be on implementation of Financial Autonomy of the Legislative and Judicial arms of government, it is recommended hereof that a long term solution (amending the constitution) should be vigorously pursued to help deepen our democratic principles.
Dated 11th June, 2020

DENNIS N. EZIKA ESQ., Prudent Attorneys, Ezikadennis@gmail.com, info@prudentattorneys.com

END NOTES

[1] (2004) 18 NWLR (Pt. 904).

[2] See Black’s Law Dictionary; 7th Edition at page 227

[3] See section 124 of the CFRN

[4] See S. 84 (2) & (4) of the CFRN

[5] See A.G BENDEL STATE v. A.G FEDERATION & ORS (1981) LPELR-605(SC); OBI V. INEC & ORS (2007) LPELR-2166(SC); UGBA & ANOR V. SUSWAM & ORS (2014) LPELR-22882(SC)

[6] Supra note 6

[7] Supra note 6

[8] See the judgment of Akintan (JSC) in AG LAGOS STATE V. AG FEDERATION supra

[9] See AG LAGOS STATE V. AG FEDERATION (supra)

[10] See. S. 166 of CFRN.

[11] See S. 167 of CFRN.

[12] See AG OGUN STATE v. AG FEDERATION (CON) (1982) LPELR-11(SC)

[13] See supra note 13

[14] The modification in the Adaptation Order made by the President gave the State Governor the power to veto the decision of the Commissioner of Police as to whether the assembly, meeting or procession should be held whereas the Governor under section 195(4) of the said 1979 constitution does not have such power. The power of the Governor in the constitution thereof was limited to giving directions to the Commissioner of Police of the State and the Commissioner of Police has the discretion either to carry out the order/directives or refer same to the President or the duly authorised Minister who may overrule or modify same by new directions

[15] Supra note 1

[16] See A.G. ABIA STATE V. A.G. FEDERATION & ORS (No. 2) reported in 2003 LPELR-610; ELEPHANT GROUP PLC V. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528)

[17] See supra note 17

[18] See A.G. ABIA STATE & ORS. V. AG FEDERATION No.2 in supra note 17.

[19] See AG OGUN STATE v. AG FEDERATION in supra note 13.

[20] Supra note 17