The Insight by Lateef Adewole
In the last one week, an issue that took centre stage, a pleasant deviation from our recent fixation on COVID-19, was the new piece of legal document to which President Buhari appended his signature on the 22nd of May, 2020.
He stated that: “Based on the power vested in me under section 5 of the 1999 constitution (as amended), I, today, sign into law, Executive Order 10 of 2020 for the implementation of financial autonomy of state legislature and judiciary”. It came from the blues and completely unexpected, He took many Nigerians by surprise.
The order summarily entails the enforcement of fiscal autonomy for the state legislative assemblies and judiciaries. And I chose my word: “enforcement”, carefully and deliberately. This is because, the provision for the purpose of such order already exists in the 1999 constitution of the Federal Republic of Nigeria (as Amended).
So, it is not as if what the order hoped to achieve is completely novel but simply to compel the implementation of the existing laws. Since the order was signed by the president, many reactions have trailed it from legal and moral perspectives.
Generally, the majority saw it as a welcome development and long overdue. Some said that was the best one-year anniversary “gift” that Buhari could give to the state lawmakers and judges in his second term.
In essence, by the implementation of the law, the legislative arm and judiciary in all the 36 states of the federation will now fund themselves from allocations to be directly received from the FAAC as a first line charge. The previous practices where governors dole out money to the other arms of government in their states like they are their employees will stop.
Why was this even necessary in the first place? Historically, and particularly since the coming of the Fourth Republic, governors have emasculated the other arms of democratic government (legislature and judiciary), as if they are subordinates to the executive arm, and subjected them to their whims and caprices. They pocket the lawmakers and the state judges for their selfish interests and manipulative political control. They lord it over the other arms. It was a case of “he who pays the piper, dictates the tune”.
On two occasions in the past, I wrote different articles which highlighted related issues to what the Executive Order 10 intends to deal with. On August 25th, 2018, I wrote about how governors have been running states like personal empires while they are the emperors. Again, on the 8th of June, 2019, I wrote an article titled: “Governors and the Emasculation of LG’s Administrations”. These two focused on the excesses of the state governors, vis-a-vis the recognised separation of power among the three arms of government and the expected degree of independence of local government administration under a democracy, as enshrined in our constitution, which our governors have observed more in breach.
The governors appropriate and arrogate the powers of “life and death” to themselves as far as their territories; the states, are concerned. They “rule” over and above every other arm, which are supposed to be independent and equal partners in the state administration. They do this by firstly highjacking the state party apparatchik, which ensures that they effectively determine who gets what, politically within the state.
They influence, manipulate or coerce the party primaries to favour their anointed candidates to the state assemblies. This makes the lawmakers who eventually emerged to be indebted to them. By the time the houses are inaugurated, they do the same thing to install the leadership of the houses, putting the legislative arm completely in their pockets. Then, the funding of the state assemblies also come from them through executive appropriations. This makes it difficult, if not impossible for the lawmakers to challenge the governors on any matter (all other things being equal).
In the Judiciary, even when the appointments of judges to various positions come by the recommendations from the NJC, the governors oftentimes, override such recommendations unconstitutionally. A case in sight was the last appointment of the Chief Judge of Cross River state last year. Similar cases abound across the country and in the past. The state executive also provides the finances for the operation of the Judiciary. This also, sometimes, incapacitates them from being fully independent.
The local government’s case, though, not part of the Executive Order 10, is worse. Most of the governors do not bother to conduct local government elections. They simply appoint their political cronies to act as administrators, while they receive local government allocations which are lumped with that of the states and sit on it. They hand over pittance to their “boys” in the LG’s to take care of salaries. Nothing more!
Therefore, it was with pomp and pageantry that many Nigerians received the president’s order. The common sentiment was that of: “O to ge” (enough is enough). The governors did not find it amusing at all. With immediate alacrity, they have called for the meeting of the Nigerian Governors Forum (NGF) to look at the issue and come out with a common position. Not even the crisis of coronavirus could deter them.
One might actually wonder what the governors’ problem is. Is it that they do not want independence for the other arms of government? Do they concede that they have been emasculating other arms? Does it mean they agreed that they have been starving the other arms of funds deliberately? All these questions and many more, beg for answers.
The legality or otherwise, of such order by the president has been subject of debates among our “learned” silks (“as if only dem go school”). That argument has two parts. The one that questions the authority of the president to make such order which tends to infringe on the autonomy of the states as a separate tier of government. There are those who argued that such action amounts to illegality and symptomatic of an authoritarianism, with such interference in the functioning of a separate and independent tier of government.
This is likely to be the position that the governors will canvass. If they reject the executive order, it behoves on them to test their case in court with a recourse to the Supreme Court for judicial interpretation.
Other group concurred with the president that he has consititunal authority to do so. They hinged their position of the provisions of the Constitution in section 5 (1)(b) which states that: “The executive powers of the president shall extend to the execution and maintenance of the provisions of the Constitution and all laws made by the National Assembly”.
The other argument is about the essence of such order when there is already provisions for it in the constitution which is the grundnorm. Some believed it is superfluous making a new order to that effect. It amounts to duplication, which is only enforceable to the extent it is consistent with the law. Anything beyond is null and void.
There are those who believe such order is appropriate and in sync with the provisions of constitution, since by virtue of section 315(2) of the 1999 Constitution (as amended) by the 4th Alteration act which grant financial autonomy to the legislature, the executive order will enhance the observation of section 121(3) to the effect that the allocations to the state legislative arm are directly paid to the heads of that arm of government in the state.
One thing that they are all unanimous about is the spirit and thought behind the order. Everyone wants autonomy for the legislature and judiciary in the states.
The enforceability has been another concern. A look at the detail content of that order gives an elaborate process by which it will be carried out. While I cannot reproduce everything here, the sub-heads are:
The Order proper
1. Appropriation, Authorisation, Orders, etc.
2. Determination of the Budget.
3. Creation of State Judiciary Budget Committee.
4. Budget Preparation, Templates and Modalities.
5. Appropriation and Supplementary Appropriation Law, etc.
6. Special Allocation for the Judiciary.
7. Implementation of this Order.
8. Citation.
9. Commencement: This Executive Order shall take effect from this 20th Day of May 2020.
The extent to which this has been put down gave justifications to those who do not support it. They felt it looks more like a piece of legislation than simply an executive order. And that all the structures stipulated to execute it are beyond the consititunal call of the president in a federation.
It will be interesting to know which of the positions is legally correct and which is wrong, if and when it is tested in court. It will definitely deepen our democracy.
There are still some reservations in all of these, given our political realities in Nigeria. Can the state assemblies be truly autonomous? Do the state lawmakers truly want the autonomy? These questions became expedient because, in time past, the same state assemblies have failed to agree with the constitutional amendments by the national assembly to similar effects. Since the constitution requires that two-thirds of members in 24 states of the federation must also pass such amendments before it can become law with the president’s assent, such proposal usually fail. The governors often influenced their decisions.
Also, there is another school of thought that the state lawmakers do enjoy “extra legislative patronage” from their respective state governors. And that any attempt to be independent of the governors’ influences will also means loss of such patronage. This is germane because of the kind of politics we play in Nigeria: “politics of stomach infrastructures” (as the former Governor Fayose coined it).
In Nigeria, people see politics as business. They get involved to see how they can get their hands on the pie and not to serve, most of the time. They invest everything they ever had financially and even more to get elected. Therefore, they are desperate to recoup such investment with huge profits. So, a lawmaker in such shoe will rather prefer to be cosy with the governor and be a “rubber stamp”, for the benefits that may accrue from there than any “fathom” autonomy.
The demand on political aspirants from the citizens do not help matters. The people are not ready for lawmakers who will be independent and represent them well, even if it means going against the governors in the interests of their constituencies, with how they ask the candidates for money, and all kinds of gratifications before and after elections, as well as selling their votes on election days. You can’t eat your cake and have it at the same time.
Such autonomy will benefit the Judiciary more since they are not expected to be political and are not politicians. A financial independence might boost their confidence and embolden them the more in handling cases more courageously and deliver their judgements without fear or favor, no matter whose ox is gored. Especially where and or when the state executive arm is involved.
In all, President Buhari has done well with that order and should be commended, even if for bringing the issue to the front burner once again. It has reawakened something in everyone. It jolted all to life. Governors will hopefully begin to be more circumspect in their dealings with other arms of government in their respective states. It is clear to them now that: “Dada ko leja, o ni aburo t’ogboju”.
May God continue to guide us aright.
God Bless Nigeria.
Lateef Adewole is a political analyst and social commentator can be reached by email lateefadewole23@gmail.com or via WhatsApp +2348020989095 and @lateef_adewole on Twitter
