By Anyanwu Ezinne Vivian

INTRODUCTION

Under state constitutional provisions, the executive generally proposes and administers the fiscal policies of government while the legislature raises and allocates public funds.

Through either a sense of comity or a recognition of public needs, the legislature and executive generally cooperate with the judiciary to meet the courts’ anticipated costs. This cooperation is not always possible. Political and economic considerations often dictate that the comparatively unassertive requests of the judiciary be neglected.

It is a matter of great irony to all of us today that we are discussing the issue of financial independence for a Legislature. The Legislature oversees the activities of the Executive to guarantee the public policies of the Administration in accordance with the legislative intention. The legislatures control and discover defects of the Executive. Legislatures also act to correct the executive’s misinterpretation or mismanage. The Executive’s activities are kept under critical scrutiny and constant public. Through the House and House Committees, we exercise oversight of the government’s financial and budgetary process and today we are talking about the financial independence of a Legislature! It’s really ironic and unfortunate. Before I talk about financial autonomy, I would like to say something about having a separate Secretariat for a representative institution without having a full state status. I believe that all legislatures that enjoy law enforcement should be considered equivalent because their powers should be considered equivalent because their powers, services and privileges are, I think, equivalent. Now returning to the question of financial autonomy in legislatures, I would like to present that legislatures, in my opinion, inherently should have the following three components. First, sufficient budget; secondly, the powers or independence to use the Budget; and thirdly, the freedom of external interference in the use of the Budget. If all three components are available, then we can consider that financial independence is available. Most of the time budget I am available, but the Secretariat of the Assembly is not in a position to use the Budget in accordance with the need and requirement of the Assembly. The third aspect is that since assemblies and representative institutions are very important institutions, there should be no external interference in these institutions. If these three factors are taken into account, I think, you can achieve the financial independence of the Legislatures and it can lead to a complete autonomy of a Legislature, which is a broader issue.

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 in vain, the reports sparked a debate about the constitutionality of the order. In evaluation of the legality of executive orders and still maintained, as I wrote then, that executive orders constitute practical tools by which the president performs his constitutional government functions. Therefore, they can be issued validly to ministries, departments and agencies (MDC), which are part of the executive arm of the government. The President may 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. The law is framed exclusively in the vision of the legislative arm of the government. The objective of Executive Order 10, also known as the Implementation of Financial Autonomy of the State Legislature and the State Judicial Order, 2020, is to enforce the application of the 4th Alteration of the Constitution and provide a practical framework for legislative and judicial weapons of state governments to have financial autonomy.

The 4th Alteration, which amended Section 121(3) of the Constitution, states that: Any amount of permanent credit from the – a) State Chamber, and b) Judicial, in the State Consolidated Income Fund will be paid directly to the previous bodies respectively; in the case of the judiciary, this amount will be paid directly to the heads of the interested courts. Prior to this amendment, Section 121(3) – and the similar provision contained in Section 81 of the Constitution, which refers to the federal government – provided autonomy only for the judiciary. The president’s executive order authorizes the General Accountant of the Federation to deduct from the source, the money due to the legislatures and judicialities of the states of the monthly allocations of states whose executives do not grant financial autonomies to the other two weapons of government. The order also each government of the State the implementation of a committee formed by the Of Finance, the General Accountant of the State, a representative of the Budget Office of the State, the Chief Registrar of the Supreme Court, the Court of Appeal of sharia law and the usual Court of Appeal as appropriate, the Secretary of the House of Representatives and the Secretary of the Committee of Judicial Services of the State or Commission. This commission must be in accordance with legal recognition in state appropriation laws. The main task of the committee is, where appropriate, to determine based on the state revenue profile, a feasible budget for each arm of the state government. The executive order also states that each state judiciary must create a state judicial budget commission, which would be responsible for preparing, administering and implementing the judiciary’s budget. The committee would consist of the chief judge of the state as president, the Grand Kadi of the Sharia Court of Appeal or the President of the Habitual Court of Appeal as appropriate, and two members of the Judicial Service Commission to be appointed by the chief justice.

The chief registrar must serve as Secretary of the committee. The government’s lack of financial autonomy for legislative and judicial weapons has been a long-standing issue, especially with regard to the judiciary, which even guaranteed such autonomy before the 4th Alteration. A desire to maintain judicial financial autonomy led Nigeria’s prominent senior advocate, Olisa Agbakoba, to file a lawsuit against the Federation Attorney General (AGF), the National Judicial Council (NJC) and the National Assembly in February 2013. His lawsuit challenged existing methods of applicable to the judiciary’s budget in the Appropriations Bills, rather than being a front-line charge paid directly to the judiciary. He maintained that this was contrary to the constitutional provisions of Section 81(3) of the 1999 Constitution. The Judicial Staff Union of Nigeria (JUSUN) instituted similar action against the NJC, AGF and the Attorneys General of the States in the same year, and also demanded relief for the application 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 Constitution of 1999. Both lawsuits were decided in favor of the financial autonomy of the judiciary. However, more than five years later, important parts of the sentences are still being disobeyed as state governments continue to breach the Constitution. The provisional report of the Presidential Execution Committee on the Autonomy of the State Legislature and the State Judiciary establishes that no state of the federation, apart from the Federal Capital Territory (FCT), has complied with the provisions of article of the Constitution. The Committee’s report links the breach of the non-availability of uniform modalities for full compliance that can be obtained in the Level. Thus, the report proposes that a workforce, modeled after the federal level framework, should be developed to serve as a uniform standard for implementation by states. This position is what ultimately led to Executive Order 10 2020.

In his written speech supporting his original calls, Agbakoba argued that, the continued reliance of the judiciary on the government’s executive arm for its budget and release of funds is directly responsible for the current state of underfunding of judicial infrastructure , poor and inadequate, 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.

From the foregoing, I think it is wise to say that it’s time for the lawmakers and judiciary to harness the powers they possess to check the executives.

NAME: ANYANWU EZINNE VIVIAN

SCHOOL: IMO STATE UNIVERSITY

EMAIL: ezinnevivien39@gmail.com