In December 2018, the Attorney General of the Federation, Mr. Abubakar Malami, chaired a committee under the instruction of President Muhammadu Buhari to enforce section 121 (3) of the 1999 constitution on the financial autonomy of the judiciary. The committee recommended Executive Order 10, which the President signed in May 2020.
But first, what does section 121 (3) of the Nigerian Constitution say?
Section 121 (3) of the 1999 constitution states that “any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the state shall be paid directly to the heads of the courts concerned.” Worth noting is that a Consolidated Revenue Fund is a general fund of government into which all receipts are paid (taxes and other sources of government revenue), out of which all withdrawals are made according to the constitution.
What did Executive Order 10 seek to achieve?
The order sort to deduct amounts due to state legislatures and judiciaries from the monthly allocation due to states from the federation account. The order empowered the Attorney General of the Federation to make such deductions where and when necessary.
The federal government believed that the order would grant state legislatures and judiciaries the much-needed autonomy to carry out their functions independently and dispassionately without interference from the state governors.
On the other hand, the governors considered the order an overreach and argued that the Attorney General had no right to make such deductions. As the debate ensued, the judiciary, already sold on the possibilities of Executive Order 10, embarked on a strike action for several weeks aimed at pressuring state governors to fall in line.
Instead, the governors took the federal government to court seeking judicial interpretation on the constitutionality or otherwise of Executive Order 10.
Supreme Court Ruling
In a landmark ruling, the Supreme Court, on Friday, February 11, 2022, declared Executive Order 10 unlawful and unconstitutional. The court further ruled that the President exceeded his constitutional powers in issuing the Executive Order.
Although the supreme court ruling is a significant win for the governors who were unanimously opposed to the Executive Order, the victory does not portend well for deepening our democracy.
A cardinal principle of democracies is the separation of powers, where each arm of government is kept in check by the other. Therefore, can a poorly funded judiciary, lacking autonomy as highlighted in section 121 (3) of the constitution, hold the executive to account?
Except the judiciaries and legislatures at the state level are genuinely independent and autonomous, the executive will always have an over-bearing influence over them which goes against the principle of separation of powers.
On this, the governors may have won, but democracy suffers yet again.