Supreme Court declares Executive Order 10 unconstitutional and void

Supreme Court declares Executive Order 10 unconstitutional and void

The Supreme Court of Nigeria has nullified Executive Order 10, which was signed by President Muhammadu Buhari on May 22 2020 to grant financial autonomy to judicial and legislative arms at the state level. According to the apex court, the President’s action was a violation of the 1999 Constitution, which lays down the powers and functions of the respective heads of the three arms of government.

Delivering the lead judgment, which was endorsed by five other justices of the court (with one dissenting), Hon. Justice Muhammed Dattijo reaffirmed that Nigeria is still a federation and that there are clear delineation of powers between the States and the Federal Government under the 1999 federal constitution. According to the majority decision, the President had overstepped the limits of his constitutional powers by issuing the Executive Order, thereby usurping the powers of heads of other arms of government.

The Order was issued by the President, apparently to give effect to the provisions of the 1999 Constitution, as altered, which guarantees financial autonomy for the judiciary and the legislature at the state level. According to the Order, the monies voted for state judiciaries and legislatures in the annual budget was to be sent directly to the heads of those arms, as against the practice of sending the funds to state governors to disburse. It sought to empower the Accountant-General of the Federation to deduct funds for the state legislature and the judiciary from the Federation Allocations to the states.

The action challenging the Order was commenced at the Supreme Court by the Attorney-General of Abia State on behalf of the state and 35 others against the Attorney-General of the Federation. Apart from the declaration sought, they also prayed for an order to compel the Federal Government to take up the funding of the capital projects of the State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal from the Consolidated Revenue Fund of the Federation, on the ground that they are courts of the federation. According to them, since the salaries and emoluments of the judges of the three courts were being paid by the Federal Government in line with Section 81 of the 1999 Constitution, that section should be invoked to make the Federal Government responsible for the funding of their capital projects.

The court also refused to grant an order sought by the 36 states to compel the Federal Government to pay them the sum of N66 billion, representing the amount they claimed to have spent since 1999 on capital projects for the three courts in their respective states.

The Supreme Court, in this case empaneled a full court of seven and invited five Senior Advocates of Nigeria as amici curiae to help resolve the important constitutional issues raised.

In his dissenting judgment Hon. Justice Uwani Abba-Aji lamented the ordeal faced by judicial officers and staff in the hands of state executives. Upholding the validity of the Executive Order, he reasoned that the action of the President was necessary to facilitate the implementation of the constitutional provisions on the separation of powers. He also held that the Order would help cure a situation where the constitutionally guaranteed position was being denied through the “hanky-panky, subterfuge played by state governors against the independence and financial autonomy of state judiciary.”
The six Justices that sided with the majority opinion are Muhammed Dattijo, Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro while Justice Uwani Abba-Aji dissented on the constitutionality of the Order.

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