- ‘Fiscal autonomy for legislature and judiciary’ ll deepen democracy’
AKEEM NAFIU writes that more than 10 months after the issuance of an Executive Order by President Muhammadu Buhari, fiscal autonomy for state legislatures and judiciaries has remained a mirage as state governors continue to observe Section 121(3) of the Constitution in breach
Some senior lawyers have expressed deep concerns about the non-implementation of the Executive Order 10 issued more than ten months ago by President Muhammadu Buhari to ensure fiscal autonomy for state legislatures and judiciaries. The lawyers while baring their minds on the issue at the weekend warned that the non-implementation of the Executive Order by state governors portends great danger for the polity. Indication that all was not well wih the implementation of the Order emerged last month when parliamentary staff of State Houses of Assembly under the auspices of the Parliamentary Staff Association (PASAN) embarked on protest at the National Assembly over delayed implementation of fiscal autonomy for state assemblies.
While the protests lasted, offices of several state assemblies across the country were locked up for business. The protesters numbering over 400 drawn from various states across the country accused state governors of deliberate non-implementation of Executive Order 10 thereby undermining the principle of separation of powers.
The protesters led by PASAN President, Comrade Mohammed Usman and his Deputy, Ikechukwu Alaribe, threatened to embark on an indefinite strike if the ugly trend continues. In a 2-page petition titled: ‘Demand for full implementation of financial autonomy for State Houses of Assembly as provided for in Section 121(3) of the Constitution and Presidential Order 10 2020’, addressed separately to the Senate President, Dr. Ibrahim Lawan and Speaker of the House of Representatives, Hon. Femi Gbajabiamila, the legislative staff sought for the swift intervention of the National Assembly.
The petition reads: “Recall that His Excellency, President Muhammadu Buhari assented to the Constitution Fourth Alteration Bill in June 2018 which among other things granted financial autonomy to all State Houses of Assembly in Nigeria and subsequently issued Executive Order 10 to ensure implementation.
“The union considers these actions as great strides toward embedding the democratic principle of separation of powers which in turn guarantees positive progressive, effective and efficient checks and balances especially at the state level where Executives have continually arm-twisted the Legislature into total submission thereby negating the essence of separation of powers in a democracy.
“It is therefore needful to see that for there to be a robust legislature at the state level, the implementation of the legislative financial autonomy is pertinent.
It is in consideration of the foregoing that PASAN wishes to express her unreserved disgust and dismay with the actions of some Nigerians and institutions particularly the Nigeria Governors Forum (NGF) for aiming to not only discredit but to exterminate this democratic prerequisite through frustrating its implementation.
“The union has been magnanimous with the virtue of patience by allowing for ample time so that the Federal Government through His Excellency’s implementation committee on financial autonomy for state judiciary and legislature would ensure the implementation of the letters of the Constitution of the Federal Republic of Nigeria for over two years now.
“Our members have run out of patience and have resolved to forthwith put an end to condoning further delays to the implementation of the financial autonomy for States Houses of Assembly which in itself is a glaring breach of the Nigerian Constitution.
“As the union’s motto reads, ‘Service for Democracy’, the union shall remain committed to serving the nation’s democracy but the continuous non-implementation of financial autonomy at the state level is a huge obstacle before the wheel of democracy and the principle of separation of powers which in turn frustrates our devoted service.
Consequent to the foregoing, the union hereby demand full implementation of the letters of our Constitution as provided for in Section 121(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
“Failure to meet the above demand, the union will have no other option than to direct all its members nationwide to embark on indefinite strike action.
By implication, the nationwide strike action shall see the following institutions shut down: National Assembly, National Assembly Service Commission, all state Houses of Assembly, all States Houses of Assembly Service Commission and all agencies under them”.
Prior to the signing of the Bill which granted financial autonomy to States Judiciary and the Houses of Assembly on 8th June, 2018, by President Muhammadu Buhari, many state governors have been observing Section 121(3) of the Constitution which clearly spelt out how funds due to the third arm of government should be disbursed in breach.
National Assembly’s intervention
The 7th Assembly had jointly passed the fourth alteration Bill to further amend the 1999 Constitution, but former President Goodluck Jonathan withheld assent even after billions had been committed to the amendment exercise.
However, in its determination to fashion out an acceptable legislation, the 8th Assembly proceeded with the amendment to the Constitution. The two chambers considered the amendment to 33 Sections of the Constitution based on the reports of their ad-hoc committees on Constitution review.
While the Senate approved 29 recommendations, the House of Representatives approved only 24. Notable among the Bills is the one which granted financial autonomy to States Judiciary and Houses of Assembly.
The Bill granting financial autonomy to States Judiciary and Houses of Assembly subsequently became law on 8th June, 2019, when President Muhammadu Buhari assented to it. Briefing State House journalists on the development, the then Senior Special Assistant to the President on National Assembly matters,
Senator Ita Enang, said with the coming on board of the law, states judiciary are expected to have direct access to their funds and not through state governors again.
“I just want to inform you that His Excellency President Muhammadu Buhari today assented to the Constitution Fourth Alteration Bill which grants financial authonomy and independence to the Houses of Assembly of the respective states and to the Judiciary of the respective states.
“Therefore upon this signature, the amounts standing to the credit of the judiciary are now to be paid directly to the judiciary of those states, no more through the governors and no more from the governors and then the amounts standing to the credit of the Houses of Assembly of the respective states are now to be paid directly to the Houses of Assembly of that state for the benefit of the legislators and the management of the States Houses of Assembly.
This grants full autonomy now to the judiciary at the state level and the Houses of Assembly at the state level”, Enang said.
About 9 months after signing the Bill granting financial autonomy to States Judiciary and Houses of Assembly into law, President Muhammadu Buhari inaugurated a Committee to fashion out strategies and modalities for implementing the law in line with the dictates of Section 121 (3) of the Constitution.
After about 3 months of carrying out its assignment, the Committee which was chaired by the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN) submitted its report to the president.
Highlight of their recommendations was the need for President Buhari to sign an Executive Order for the immediate take-off of the implementation of the autonomy for states legislature and the judiciary. President Buhari had also then assured the nation of his determination to take appropriate action on the Committee’s recommendations.
A statement by the President’s Special Adviser on Media and publicity, Femi Adesina, quoted President Buhari as saying efforts to ensure autonomy for state legislatures and judiciary will further strengthen democracy and deepen inclusiveness of citizens by guaranteeing fairness for ordinary Nigerians.
Buhari’s Executive Order
In keeping with his promise to take appropriate action on the recommendation by Malami’s Committee, President Muhammadu Buhari subsequently on the 22nd of May, 2020, signed an Executive Order to give effect to full financial autonomy for states legislature and the judiciary.
The Order is tagged, “Executive Order No. 10 of 2020 for the implementation of Financial Autonomy of State Legislature and State Judiciary”.
A statement issued by Dr. Umar Gwandu, an aide to the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), indicated that the new Order will further make the two arms more independent and accountable in line with the tenets of democracy.
The statement reads: “The President signed the Executive Order number 10 into law based on the power vested in him 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.
“The Order provides that 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, 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 Constitution of the Federal Republic of Nigeria 1999 (as Amended)”.
Some senior lawyers have expressed their displeasure at the nonimpementation of the Executive Order 10 by state governors close to a year that the piece of legislation was signed into law by President Buhari.
The lawyers said the ideal thing is for the judiciary and legislature to be independent in the true sense of it because this is the only way Nigeria’s democratic experience can be fortified while principle of constitutionality will also be deepened. Speaking on the issue, a Senior Advocate of Nigeria (SAN), Chief Mike Ozekhome, berated state governors for defying constitutional provisions regarding equitable sharing formula among the federal government, states, LGAs, legislature and judiciary.
He said: “For too long, some governors, since 1999, defied the provisions of the Constitution regarding equitable sharing formula among the federal government, states, LGAs, legislature and judiciary.
They scornfully treat such provisions with supercilious disdain, by ambuscading at source, allocations meant for state legislatures and houses of assembly .
“So bad is the situation that the CJN, Tanko Muhammad, on September 23, 2019, during a special session to mark the commencement of the 2019/2020 Legal year and swearing-in of 38 newly conferred Senior Advocates of Nigeria (SANs), lamented the helplessness of the Judiciary regarding its much trumpeted independence.
“The president has merely used Executive Order 10 (made pursuant to Section 5 (1) of the 1999 Constitution) to give respite to long suffering state judiciaries and legislatures, by making it mandatory that heads of all of state legislatures and judiciaries be paid directly on a first line charge.
There is nothing wrong with this. “Order 10 does not howsoever interfere with the budget of states, presented in the form of an “appropriation bill”. All it says is that when State Houses of Assembly prepare budgets and same are signed into law by state governors, all amounts reflected in the said budgets as “standing to the credit” of the Judiciaries and Houses of Assembly are directly transferred to their Heads, by the Accountant- General of the Federation (AGF).
They are not supposed to be routed again, on an Israelite journey, to the respective governors who have already taken their own allocations under Sections 162 (4), (5), (6), (7) and (8) of the Constitution”. In his own submissions, Mr. Seyi Sowemimo (SAN) lauded the president’s signing of the Executive Order saying it will free the judiciary from the governors’ grip.
“The signing of the Executive Order is a good development. It will make judicial officers less vulnerable to pressure from the executive branch of government”, Sowemimo said. Another Senior Advocate of Nigeria (SAN), Mr. Yemi Candide-Johnson, also expressed his joy at government’s efforts. He however called for a thorough scrutiny of how judiciary funds are spent by states judiciary. He said:
“Government’s effort at guaranteeing financial autonomy for States’ Judiciary and Houses of Assembly is quite important and commendable. But more important is to make judicial budgets transparent and accountable. Today they are opaque and discretionary in a potentially dangerous manner”.
To Mr. Kunle Adegoke (SAN), the issue of legislative and judicial autonomy is a necessity as no arm of government should have an overbearing influence on the constitutional capacities of other arms of government
“I believe what the president has done is in order. An Executive Order is just a regulation issued by the president or some administrative authority for the purpose of interpreting, implementing or giving administrative effect to a provision of the constitution or a treaty.
“It has been considered to be an effective instrument for good governance. The issue of legislative and judicial autonomy is a necessity as no arm of government should have an overbearing influence on the constitutional capacities of other arms of government if separation of powers would be meaningful.
“It is not so much the need to have separation of powers as this is not in any way an end in itself but rather to ensure the prevalence of rule of law. Rule of law itself is not guaranteed where the judiciary is not independent as this is a cornerstone for ensuring rule of law.
“That is why Section 121(3) of the Constitution was altered by the Fourth Alteration Act No. 7 of 2017 which included the House of Assembly of a State in the financial autonomy. The original Section 121 of the Constitution only covers the judiciary alone. What the President has promulgated by the Executive Order is just an order to give effect to the Fourth Alteration Act, No. 7 of 2017
“I believe the Executive Order 10 which seeks to ensure financial autonomy for the legislature and the judiciary will promote independence of the judiciary and assist in our campaign for the prevalence of rule of law”, Adegoke said.
A former Vice-President of the Nigerian Bar Association (NBA), Mr. Monday Ubani, warned that the danger of nonimplementation of the Executive Order is ominous and scary for Nigerians.
Ubani said: “I am shocked that up till now the executive order signed since last year by the president has not been implemented. The reason for the nonimplementation is yet to be known. I am alarmed by the non-implementation of that Order that would have entrenched the fiscal autonomy of both legislature and judiciary.
The danger of non-implementation is ominous and scary for Nigerians”. Dr. Fassy Yusuf said the Federal Government must exhibit political will to implement the Order. “The non-implementation of the Executive Order issued by President Muhammadu Buhari to the effect that fiscal autonomy should be for state legislatures and judiciaries is a pointer to the fact that the Federal Government and the states are paying lip service to the Order.
“What this means is that the Federal Government lacks political will to implement the Order, an indication that it’s in a quagmire, not knowing what to do. This is because if it knows what to do, it ought to have given effect to the Order.
It is left for whoever want to challenge the order in court to do so. I am troubled that the president’s directive is being breached and not obeyed”, he said.