PRESIDENT MUHAMMADU BUHARI’S EXECUTIVE ORDER NO. 10 OF 2020: THE LAW IN ITS ORIGINALITY
It is entirely appropriate, to encourage and acknowledge the works of a law expert and a Portharcourt based legal practitioner, A. A Ikpoko ESQ; his article, ‘The Constitutionality Of President Buhari’s Executive Order No. 10’, out of which the research for this work would have been far more stressful and who despite his busy schedule, has taken time to proofread this work. I thank you sir.
Recently, the Nigerian presidency issued an executive order, presidential order No. 10 of 2020, compelling the enforcement of financial autonomy for the legislature and the judiciary in the 36 States of the federation, to have the amount standing to their credit in the Consolidated Revenue Fund of the state paid to them directly.
This decision as reflected in the said presidential order, has thrown up legal arguments as to whether the president of Nigeria has the constitutional vires to make such an order. This article is intended to highlight the law on this, within the context of the following tensions:
Constitutional Background Of Nigeria:
Nigeria operates a written constitution which is the 1999 constitution of the Federal Republic of Nigeria (as amended).
In law, the 1999 constitution of Nigeria is seen as the font et origo of all laws. This means that our Constitution is the mother of all laws and every law and action of the government or individuals must derive and trace it’s validity to the Nigerian constitution. Section 1(3) of the Constitution makes this fact explicit.
My Lords on the supremacy of the constitution in the case of AG Abia State vs AG Federation(2006)16 Nwlr (pt1003) 263 at 381, described the constitution of Nigeria as the barometer with which all statutes are measured. Be it an Act of National Assembly or laws of the state House of Assembly, it must dance to the tune and music of the constitution, whether the rhyme is good or bad.
What Is An Executive Order
Simply put, executive orders are products of the exercise of presidential powers or powers of a state governor under the constitution. Executive orders are the instruments or tools through which an executive president or governor may exercise his executive powers conferred upon him by the constitution, Act of National Assembly or law. So executive powers may be likened to rules of court, rules of the Parliament e.t.c, on practice and procedure.
The Constitutionality Of Executive Orders:
Constitutionally speaking, there is no provision under the 1999 constitution which expressly provides for an executive order. Executive order is an administrative means of exercising the executive powers conferred on the executive by the constitution, Act of the National Assembly or law, and so they are made pursuant to the powers conferred on the executive by the constitution, Act of the National Assembly or law.
Although executive orders have the force of law, they remain subsidiary or delegated legislation. Such orders must not be inconsistent either with the provisions of the constitution or any substantive law. Where such an order offends section 1(3) of the constitution, it is void and of no legal effect.
The Constitutionality Of Muhammadu Buhari’s Executive Order No. 10 Of 2020
Personally, I do not have problems with the said order, as such would entrench the principles of separation of power and make all arms of the government truly independent.
Today, all constitutional democracies have settled on the principle of separation of power as a fundamental cornerstone of the rule of law, and the Nigerian constitution gives an elaborate expression to this fundamental idea, by separating the legislative, executive and judicial powers, and vesting each on three different organs whose personnel should not be comingled.
Whether president Muhammadu Buhari can make executive order no.10 granting financial autonomy to the legislative and judicial arm of the states which are constitutionally established and independent of the Federal Government of Nigeria.
Issues bordering on the autonomy of state legislature and the judiciary are constitutional matters that cannot be addressed or legislated upon by a mere executive order. Such an exercise can only be achieved by legislative intervention.
It is my considered view that the appropriate authority to grant such an autonomy is either the constitution or an enabling statute, and to that extent President Buhari can not authorize what the Constitution did not permit because to do so, will mean that the President has indirectly amended the Constitution and the President has no power to amend the Constitution, only the National Assembly can do so.
What happens if the president withdraws, revocks or suspends the order?
In the case of Youngstown Sheet &Tube Co. Vs. Sawyer (343) U.S 579 (1952), the US Supreme Court opined that “the President’s power to issue an order if any, must stem from either an Act of Congress or from the constitution.”
Respectfully, whereas we can believe that the constitution clearly envisages financial autonomy for a state judiciary, as reflected in section 121(3) of the constitution, the same cannot be said of a state House of Assembly as there is no express provision in the constitution either providing for financial autonomy for a state House of Assembly or prohibiting same.
It is the rule of constitutional interpretation that if the constitution intends or envisages a particular thing, it should have provided for same expressly and where it does not, it is to be taken that the constitution does not contemplate same.
Moreso, Nigeria operates federalism and a matter relating to the autonomy of state legislature or judiciary is within the prerogative of the state governments and not the federal government.
It is my take that the Executive Order 10, as it concerns the granting of financial autonomy to state legislature and the judiciary is inconsistent with the provisions of the constitution and therefore null and to the extent of its inconsistency.
Interestingly, Section 5 of the constitution vest executive powers of the federation in the president of Nigeria. By section 5 of the constitution, the executive powers vested in the president of Nigeria shall extend to the execution and maintenance of the constitution, all laws made by the National Assembly and to all matters in respect of which the National Assembly has, for the time being, the power to make laws.
Clearly by Section 5(1)(b) of the 1999 constitution, the president has the power and the duty to maintain and to protect the constitution of Nigeria. The seventh Schedule to the 1999 constitution captures the oath of office of the president. By his oath of office, the president of Nigeria has obligation to defend, protect and enforce the provisions of the constitution.
It is important to bear in mind that even as Section 5 grants the President wide power to maintain the constitution and the laws, and to attend to all matters which the National Assembly has power to make law, subsection (1) limits the exercise of this wide power. The executive power of the federation which is vested on the President, is to be exercised subject to “the provisions of this constitution” and ‘to the provisions of any law made by the National Assembly.’ The President can only exercise the awesome power of his office strictly in accordance with the provisions of the constitution or laws made by the National Assembly.
Even though he is the Chief Executive who has responsibility to superintend the wellbeing of the federation, he cannot act, even in national interests, except such action can be justified by the provisions of the constitution or any law made by the National Assembly.
President Muhammadu Buhari’s executive order No.10, relating to the financial autonomy of the state legislature and the judiciary will need to be situated within the context of constitutional framework of governance in Nigeria and same is unconstitutional.
My advice is this, the governors can seek for redress in court or ignore the order.
Daniel Alagor (CIArb) is a student judge, and a 400l law student of the Abia State University.
He is the Founder & Lead Partner of TheLI, the largest student law firm in Nigeria and a virtual resource hub for law students and lawyers across Nigeria and Africa.
For knowledge and Justice
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