Buhari’s Executive Order No. 10 Of 2020: Matters Arising

By Stephen Iorlumun Ibyem

On Friday 22nd May 2020, President Muhammadu Buhari signed Executive Order No. 10 of 2020. Announcing the news through a tweet, President Buhari said: “Based on the power vested in me under Section 5 of the 1999 Constitution (as Amended), I, today, signed into law Executive Order No. 10 of 2020 for the implementation of Financial Autonomy of State Legislature and State Judiciary”.

Arising from Executive Order No. 10 of 2020 are the following matters:

1. Executive Orders are not laws, yet President Buhari SIGNED INTO LAW Executive Order No. 10 of 2020.

2. Executive Order No. 10 of 2020 was “signed into law” based on the power vested in the President under section 5 of the 1999 Constitution (as amended). Does section 5 of the Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999) vest exclusive powers in the President to make Executive Orders? No. The section also vests in State Governors the power to make Executive Orders. Whereas the power of the President as stated in section 5 (1), that of State Governors is stated in section 5 (2). The section reads in part:

5 (1) “Subject to the provisions of this Constitution, the executive powers of the Federation:
a) Shall be vested in the President and may, …
b) …

(2) “Subject to the provisions of this Constitution, the executive powers of a State:
(a) Shall be vested in the Governor of that State and may, …
b) …

3. Executive Order No. 10 of 2020 was “signed into law” for the implementation of the Financial Autonomy of State Legislature and State Judiciary. Does the President have the power to make an Executive Order for the implementation of the Financial Autonomy of State Legislature and State Judiciary? I submit respectfully that the President lacks the power to make any Executive Order for the implementation of the Financial Autonomy of State Legislature and State Judiciary. The reasons for holding this view are stated below.

4. The CFRN 1999 established a Consolidated Revenue Fund for the Federation and for States. The relevant sections are sections 80 and 120. Section 80 deals with the Consolidated Revenue Fund for the Federation while section 120 deals with the Consolidated Revenue Fund for the States. The sections provide thus:

80 (1) “All revenues or other money raised or received by the Federation …shall be paid into and form one Consolidated Revenue Fund of the Federation.”

120 (1) “All revenues or other money raised or received by a State …shall be paid into and form one Consolidated Revenue Fund of the State”.

No money shall be withdrawn from the Consolidated Revenue Fund of the Federation except in the manner prescribed by the National Assembly (Section 80 (4)). Similarly, no moneys shall be withdrawn from the Consolidated Revenue Fund of the State except in the manner prescribed by the House of Assembly. (Section 120 (4)).

5. The CFRN 1999 in section 81 has given financial autonomy to the National Assembly and Judiciary (Federal). The section provides:
81 (3) “The amount standing to the credit of the –
(a) Independent National Electoral Commission,
(b) National Assembly, and
(c) Judiciary,
in the Consolidated Revenue Fund of the Federation shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid to the National Judicial Council for disbursement to the heads of the courts established for the Federation and the States under section 6 of this Constitution”.

6. The CFRN 1999, in turn, gave financial autonomy to the House of Assembly and Judiciary (State) in section 121. The section provides:
121 (3) “Any amount standing to the credit of the –
(a) House of Assembly of the State, and
(b) Judiciary;
in the Consolidated Revenue Fund of the State shall be paid directly to the said bodies respectively; in the case of the Judiciary, such amount shall be paid directly to the heads of the courts concerned”.

7. Sections 80, 81, 120, and 121 of the Constitution have clearly delineated the powers and control of the Federal Government and State Governments over public funds. Consequently, any Executive Order for the implementation of the financial autonomy granted the Independent National Electoral Commission, National Assembly, State Assembly, and Judiciary ought to take into consideration the separate powers granted the Federal and State Governments in this regard.

8. Finally, Executive Order No. 10 of 2020 is a flagrant and overzealous encroachment on the powers of State Governors to make Executive Orders for the implementation of financial autonomy for State Legislature and State Judiciary. Such actions weaken the principles of constitutional democracy practised in Nigeria