Executive Order 10: Attitude Of State Governments To Judicial Autonomy Greatest Challenge To Restructuring — Prof. Ojukwu SAN

*Describes Impunity of States as Problem of Nigeria’s Democracy

Renowned Professor of Law and Former Director General of the Nigerian Law School, Prof. Ernest Ojukwu SAN has shared his opinions and thoughts on the implications of the recent decision of the Supreme Court on President Buhari’s Executive Order 10.

You will recall that President Buhari in 2020 made Executive Order 10 to promote the independence and financial autonomy of state judiciaries across the country. This was meant to check protracted underfunding of the judiciary by State Executives. The President through the Order directed that all funds which accrue to the judiciary be deducted from the Federation account and paid directly to the courts. This order was challenged by the 36 state governors who instituted an action against the Federal Government at the Supreme Court to determine the legality of the order.

Deciding on the constitutionality on Friday, 11^th of February, 2022, the Supreme Court in a 6-1 decision held that the President exceeded his constitutional powers in issuing the EO10.

Featuring on Channels TV Politics Today, Prof. Ojuwkwu reacted to the judgment describing it a victory for the Federal Government contrary to popular assumptions. According to him, the decision is a victory for the Federal government and the peoples of Nigeria as the State governments sought to divest themselves of the responsibility of funding states courts which the Supreme Court rejected by reaffirming the responsibility of States to fund the capital expenditure of their judiciaries.

He however noted that Executive Order 10 was proclaimed by the President as a result of the impunity of states refusing to comply with the constitutional provision for funding the judiciary. In his words; “States have constituted a major challenge to Nigeria’s democracy. The states have shown impunity by refusing to implement the clear provision of the constitution. This is the things. The problem of democracy in Nigeria is 10 times on the states. JUSUN obtained a judgment of the court granting independence of the judiciary, states refused to implement the order. JUSUN proceeded on the longest strike causing the President to intervene by issuing the Executive order drawing attention to the breaches of the State government. The President was simply saying go and obey the constitutional provision or I will deduct the money from source. The President did not make a new law.”

Commenting on whether the President has such powers to deduct the from the allocations of the states to fund the judiciary, the distinguished Senior Advocate noted that “there is no express provision giving the President such power but if you read snippets from the minority decision of Justice Abba-Ji you will see that the reasoning is that though the President does not have the power to deduct funds from source, since the President is not making a new law but is only giving implementation to the provision of the constitution, the order is not unconstitutional.”

Prof. Ojukwu applauded the minority reasoning stating that we must read constitutionalism in our context and not just in letters or other people’s context.

He said by the decision of the Supreme Court, Executive Order 10 is dead and ineffectual going forward. “It means the President cannot seize the monies of states to implement the constitution. You do not have the power to force states to implement the Constitution. You cannot flog states into compliance with the Constitution.

He further described it as a setback to the clamour for restructuring. “This is the problem. This is one form of restructuring. We have had several cases from the court dealing with restructuring. In this particular one, the States have refused to take the power given to it by the Constitution. The question now is, if the state cannot implement this simple role, what is the guarantee that we will benefit from a widescale restructuring? Prof. Ojukwu queried.

“We can amend as much as we want, but without political will to implement, amendments will do no good.  Governors are our problem in Nigeria, backwardness and bad governance is more in the states than at the Federal level. The states have strategically diverted the attention of the masses to the Federal government as the cause of their problems.”

He concluded by calling on civil society groups and Nigerians in general to intensify engagements with the Governors to secure fiscal autonomy for the judiciary as the issue can only be resolved by a political decision for now.