The Unconstitutionality of Muhammadu Buhari’s Executive Order 10

Raymond Nkannebe.

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INTRODUCTION

 On the 20th of May, 2020 President Muhammadu Buhari signed the Executive Order No 10. According to the tenor of the Order, it is meant to give effect to the provisions of the 1999 Constitution as altered by the 4th Alteration Act, No.4 of 2017 which guarantees financial autonomy for the judiciary and the legislature at the state level. In simple language, it seeks to ensure that the monies voted for the judiciary and legislature in the annual budget, are directly sent to its leadership, as against the prevailing practice where the state governors micro manage the funds for the two critical institutions with the attendant implications for their independence and optimum performance.

 

To this extent, the presidential declaration is welcome and has expectedly been hailed by the civil society and some stakeholders in the impacted institutions. The reasons are not farfetched: it is a great leap in the much clamored fiscal restructuring of Nigeria’s federal structure which has severally been criticized.

 

However, in spite of all its good motives and best intentions, the Executive Order is a slippery slope as the Federal Government may have just exceeded the scope of its powers in guaranteeing the autonomy of the two institutions at the state level. The question is, to what extent can the Federal Government legislate over the funds due to the state, and/or even dictate the fine details of its spending? And when the States fail to comply with the directives of the Executive Order, whither the Constitutional powers of the Federal Government, through the Accountant General of the Federation to deduct the funds from source and send to the States? These are the issues that present some Constitutional challenges which must not be glossed over.

 

In this essay, I shall deconstruct the Executive Order 10, to unmask its weakness and demonstrate the danger it forebodes for our federalism in spite of its celebrated motives.  I shall also proffer workable solutions to achieve the altruistic intentions of the Muhammadu Buhari led-Federal Government in a way that would not offend cardinal precepts and assumptions of the Constitution, as well as secure the corporation of the relevant stakeholders towards achieving what everyone agrees is long overdue. But first, what is an Executive Order?

 

The NATURE OF EXECUTIVE ORDERS

By their nature, Executive Orders are official statements made by the president, usually in a democracy, ordering federal agencies under the superintendence of the president, on how to direct their resources. It is the most popular instrument of exercise of executive power by a president to drive their programs and policy.

 

Executive Orders trace their root in the Constitution and must be exercised within the limits of the same document. In the United States for example after which our federal system is modelled, Article II of the Constitution guarantees the powers of the president to issue Executive Orders.

 

In Nigeria, Executive Orders draw life from section 5 of the 1999 Constitution of the Federal Republic of Nigeria (as altered). President Muhammadu Buhari echoed this much while issuing the Executive Order 10 on the 20^th of May.

 

“By the power vested in me as the President of the Federal Republic of Nigeria 1999 (as amended), which extends to the execution and maintenance of the Constitution, laws made by the National Assembly (including but not limited to section 121(3) of the 1999 Constitution (as amended), which guarantee financial autonomy of the State Legislature and State Judiciary.

“Now, therefore, I, Muhammadu Buhari, President of the Federal Republic of Nigeria in exercise of the power conferred on me, do hereby order as follows:, the preamble to the Order reads.

 

Executive Orders however, do not fall under the primary sources of law, such as the Constitution, an act of the National Assembly, or a law passed by the House of Assembly of a state. They are at best in the nature of a subsidiary legislation. While they may be considered binding to the agencies of government to which their objectives are directed, they can be subject to legal review, particularly in instances where their provisions appear to offend the principles that undergird the constitution, such as separation of powers, rule of law etc.

 

Thus, an Executive Order cannot be used to create a new law for the States or appropriate funds from the federal consolidated revenue. They may only be used to instruct and/or direct agencies of the Federal Government on how to act towards achieving the policy thrust of the government of the day. This however must be done within the confines that have been set down by the Constitution and the National Assembly. A veritable example in this wise, is the Executive Order of United States President, Donald Trump on border wall with Mexico which directed the department of Homeland Security, the equivalent of Nigeria’s Police, to use elements of already approved funds in order to begin construction. Other instances at home are the earlier Executive Orders issued by the incumbent administration such as Executive Order 7 on Road Infrastructure Development Fund, and Executive Order 4 on Voluntary Assets and Income Declaration Scheme (VAIDS).

 

Executive Orders are not an extension of the Constitution in terms of the force they commandeer and their sphere of applicability. They can be re-written, amended, withdrawn or vetoed by parliament. In the United States for example, where their presidents have popularized the use, a two-thirds majority vote in Congress is statutorily required to overrule an Executive Order. Also, to the extent that Executive Orders are circumscribed within the constitution, they can also be challenged in court. And there are precedents to this. In 1952 when President Harry S. Truman, the 33^rd president of the United States seized the nation’s steel mills, fearing a possible strike during the Korean War, the Steel companies sued and the order was ruled unconstitutional by the Supreme Court.

 

Having attempted a philosophical cum jurisprudential analysis of Executive Orders in a federated democracy, I shall now consider the merits of the controversial Executive Order 10 along these established boundaries, to espouse and adumbrate its unconstitutionality in terms of its objectives and the limits of their accommodation within the four corners of the 1999 Constitution. In doing that, I shall make copious references to the practice in other jurisdictions and settled decisions of the Nigeria Supreme Court as well as the Court of Appeal.

 

A number of issues are instructive on this score namely (a) the subject of the power; (b) Flawed Drafting (c) Ultra vires modalities of implementation; (d)  ultra vires mode of enforcement

 

SUBJECT OF THE ORDER

Arguably, one of the fundamental flaws of the Executive Order is that it is directed at core institutions of an independent arm of government, namely the State Governments. This easily offends the Separation of Power principle of the Nigerian constitution to the extent that the president is seen to be commanding the States to take certain steps on matters that are clearly within their prerogative, namely the management of funds due to the judiciary and the state legislature. This, in my humble opinion makes a mockery of the principle of Federalism.

 

Commenting on the workings of Federalism in his classical book on the subject, erudite Professor of Law, Ben Nwabueze SAN said,

 

“Federalism is predicated upon the existence of a society composed of various geographically segregated groups divided by wide fundamental differences of race, religion, language, culture, or economics. Its purpose is to enable each group free from interference or control by the others to govern itself in matters of local concern leaving matters of common interest to be managed centrally, and those which are of both local and national concern to be administered concurrently”.

 

Borrowing from the superior wisdom of the emeritus professor of Law, it is our thesis that the autonomy of the State judiciary and legislatures are in the nature of matters of “local and national concern”, and thus should be administered concurrently without the Federal Government superimposing its will and designs over the States in its attainment in order not to compromise the autonomy of States and the Separation of Powers between the Centre and the provincial units.

 

Without a doubt, it is this philosophy that guided the mind of the Supreme when it had reason to pronounce on the need for the different arms of government not to encroach on the Constitutional sphere of the other, in the famous case of [1] A.G. Abia State & Ors v A.G. Federation (2003) LPELR-610(SC). In the lexes of the Court:

 

“The principle behind the concept of Separation of Powers is that none of the three arms of government under the Constitution should encroach into the powers of the other. Each arm─the Executive, Legislature and Judicial-is separate, equal and of coordinate department and no arm can constitutionally take over the functions clearly assigned to the other. Thus the powers and functions constitutionally entrusted to each arm cannot be encroached upon by the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction”

 

The above pronouncement finds jurisprudential props in the provision of section 2(2) of the Constitution which makes it indubitably clear that Nigeria is a federal state. The courts have severally pronounced on the interplay of powers in a Federal state in a long line of cases, reiterating the independence of the States from the Federal Government to avoid a situation where the latter lords its decisions and policies over the former and which is at the core of the disputations over the Executive Order 10.

 

In [2] A.G. Federation v A.G. Lagos State (2013) LPELR-2097 (SC) the apex court put its feet down on the purport of the concept of Federalism thus:

 

“The purport of Federalism is succinctly put by the foremost constitutional lawyer and scholar, Professor Ben Nwabueze in his book, ‘Federalism in Nigeria under the Presidential Constitution’ thus: “Federalism is an arrangement whereby powers if Government within a country are shared between a national, country-wide Government and a number of regionalized (i.e. territorially localized) Governments in such a way that each exists as a Government separately and independently from others operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs. Federalism is thus essentially an arrangement between Governments, a constitutional device by which powers within a country are shared among two tiers of Government”. The above extract of the book gives an insight of what Federalism is, and clearly expresses the independence of Governments under a Federation, the powers of such Governments under a Federation, and the powers of such Governments to make laws that benefit their developments and wellbeing are unfettered, and these powers cannot be taken away from them, as long as they do not breach any Constitutional requirement”.

 

More recently, the Court of Appeal weighed in on the concept in [3] Edosaca v Osakue & Ors (2018) LPELR-44157 (CA) thus:

 

“Federalism is defined as the mixed or compound mode of government, combining a general government i.e (Central or Federal Government) with regional governments  i.e (States, provincial, cantonal or other sub-units of governments) in a single political system. It can thus be defined as a form of government in which there is a division of powers between two levels of government. In modern times, it is a system based upon democratic rules and institutions in which the power to govern is shared between the Central and State provincial governments in accordance with the terms and conditions prescribed by the subsisting Constitution”.

 

A common thread that runs through the concept of Federalism as seen in the above decisions is that, constitutionally guaranteed levels of government should be able to exist independent of each other without the one, dictating to the other especially in matters where their interests are not common. However, a walk through the provisions of the Executive Order leaves the irresistible impression that it seeks to legislate upon the funds due to the States of the Federation by a rather weak legal instrument. This cannot be.

 

Our conviction is that in so far as States are not agencies of the Federal Government, but rather equal partners in the government superstructure, it is doubtful if the president can issue such an order dictating to them, and even threatening to manage the funds due to it in the consolidated revenue of the Federation.

The situation presents more complexities and contradictions in that the subject/objective of the order is not included in the Exclusive Legislative list contained in Part I of the second Schedule to the Constitution where only the Federal Government can legislate upon. On the contrary, allocation and disbursement of revenue are matters in the Concurrent Legislative list where individual States are allowed to make their individuated laws on the mechanics of same.  Thus, deploying an Executive Order to direct States on matters contained in the Concurrent Legislative list is to my mind a clear case of executive exuberance which must be tamed if we are to continue to hold ourselves out as a Federal State. Therefore, the Executive Order as presently constituted is a constitutional infraction as it runs amok of the fundamental principles that undergird the Constitution. But that is not all.

 

FLAWED DRAFTING

Another vexed issue in the Executive Order is its overreaching and pompous diction. Paragraph 1(a) of the Order under the title “Appropriation, Authorization Orders, etc opens thus:

 

“without prejudice to any other applicable laws, legislations and conventions at the state tier of government, which also provides for financial autonomy of state legislature and state judiciary, allocation of appropriated funds to the state legislature and state judiciary in the state appropriation laws in the annual budget of the state, shall be a charge upon the consolidated revenue fund of the state, as a first line charge”.

 

By the above provision, funds due to the State legislatures and judiciary shall enjoy first line of charge. Whereas commendable, the provision unfortunately offends the provisions of the Constitution which it claims to enforce. How? The 4^th Alteration to the 1999 Constitution No. 4 of 2017 which amended section 121(3) of the principal Act only came as far as nominating that the funds due to the state legislature and judiciary shall be a charge upon the consolidated revenue of the state.

The substituted sub-section “3” merely stipulates that, “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 directly to the said bodies respectively; in the case of the judiciary, such amount shall be paid directly to the heads of courts concerned”. There is no provision that they shall be paid as a first line charge. This is an innovation in the Executive Order which in my considered opinion has the tendency to upend the appropriation laws of the States; and even more disturbingly, by a weak legal instrument.

 

The law is now axiomatic that subsidiary legislations however altruistic or utilitarian cannot be used to vary or add to the provisions of the Constitution as the Executive Order has done. In [4] FRN v. Osahon, (2006) LPELR -3174 (SC), the apex Court was unequivocal “that the provisions of the Constitution must not be subordinated to any other law, and in construction, must not be subjected to the indignity of deletion of any section or part thereof”. Unfortunately this is what the innovation in the Executive Order has done.

 

Section 1(3) of the Constitution which affirms its supremacy further puts the issue in its jurisprudential perspective. The authorities are legion that any law subordinated to the Constitution cannot be inconsistent with its provisions otherwise it will be rendered null and void to the degree of such inconsistency. In this instance where the colloquy is a mere Executive Order, I submit that deploying it to regulate which head of expense in the State coffers should enjoy “first line charge” in the budget, is a danger that can rubbish the Constitution and birth what Learned Senior Advocate, A.J Owonikoko aptly described as the “headmaster presidency”.

 

Beyond that, the employment of the compulsive verb, “shall” in prefacing nearly all the directives of the Order makes it read like a military decree when considered against the backdrop of the fact that it is directed to a an autonomous tier of government.  A case in point is paragraph 6(a) of the Order titled “special allocation for the Judiciary”. It reads,

 

“Notwithstanding the provisions of this Executive Order, in the first three years of its implementation, there shall be special extraordinary capital allocations for the judiciary to undertake capital development of state judiciary complexes, high court complexes, Sharia court of appeal, customary court of appeal and court complexes of other courts befitting the status of a court“.

 

With respect to the draftsman of the Order, I submit that this a clear case of an Executive Order biting more than it can chew in a federal state. Legal historians would easily recall that a declaration of this kind mirrors what played out in the old but often cited case of [5] A.G. Bendel State v A. G. Federation (1983) LPELR -3153 (SC), and which was deprecated by the apex Court in unmistakable terms.

 

Answering the question whether State governments have control over the sharing of federal account, the court, through the mouth of UWAIS J.S.C (later CJN), said, “Once the Federation Account is divided amongst the three tiers of government, the State Governments collectively become the absolute owners of the share that is allocated to them (i.e. 35 per cent). So that it would normally be their prerogative to exercise full control over the share. Consequently, it will not be appropriate for the Federal Government to administer the share without the authorization of the State Governments. This appears to be logical and in keeping with the fundamental principle of Federalism on the autonomy of the constituent States.”

 

[Emphasis supplied]

 

It is this threat of Federal domination that gave birth to the “Anti-Commandeering” doctrine in the United States to check arbitrary exercise of Federal power however altruistic. The “anti-commandeering” doctrine as the name suggests generally prohibits the Federal Government from requiring States and localities to adopt or enforce Federal policies. The Supreme Court of the United States (SCOTUS) in [6] Murphy v NCAA, 138 S.Ct. 1461, 1475 (2018) explained that this principle derives from the “fundamental structure” of the Constitution, which “withholds from Congress the power to issue orders directly to the States” and reserves all legislative power not granted to Congress to the States via the Tenth Amendment.

 

The anti-commandeering doctrine has its origins in the Court’s 1992 decision in New York v. United States, which struck down a provision of a federal statute that required States to either (1) regulate low-level radioactive waste generated within their borders according to the instructions of Congress, or (2) take title to and possession of such waste. In striking down the provision, the Court reasoned that in light of the absence of an enumerated constitutional power to issue commands to state governments and the Tenth Amendment’s reservation of state sovereignty, Congress may not “commandeer” or “conscript” state governments into implementing federal policies by “directly compelling them to enact and enforce a federal regulatory program.”

 

The Court further explained that this limitation on Congress’s authority “follows from an understanding of the fundamental purpose served by our Government’s federal structure” to “secure to citizens the liberties that derive from the diffusion of sovereign power.” It also reasoned that the anti-commandeering doctrine is necessary to ensure political accountability because “where the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”

 

Five years later in [7] Printz v. United States 521 US. 898, 917, 925, 929 (1997), the court applied the principle to strike down a provision of the Brady Handgun Violence Prevention Act that required state law enforcement officers to perform background checks on prospective gun purchasers. In striking down the challenged provision, the Court concluded that Congress cannot require States to enforce or implement federal policies, even where the relevant federal legislation merely requires state officials to perform “discrete, ministerial tasks.”

 

As in New York (supra), the Court explained that this principle follows from the Constitution’s “structural protections of liberty,” and that a contrary rule would diminish the political accountability of government officials. The Court also gestured toward a related but separate rationale for the anti-commandeering doctrine, reasoning that allowing Congress to “force state governments to absorb the financial burden of implementing a federal regulatory program” would permit federal officials to “take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes.”

 

While the subjects to which the principle was applied in the referenced cases may differ from those of the Executive Order 10, they nonetheless convey the fundamental and philosophical bases on which the decisions were erected. By parity of reasoning therefore, I submit that the Executive Order 10 and the powers it seeks to exercise over States is a veritable instance to apply the anti commandeering principle which is well entrenched in Anglo-American jurisprudence, which principle dictated own Supreme Court’s decision in the A.G Bendel case long before it was theorized in American jurisprudence.

 

ULTRA VIRES MODALITIES OF IMPLEMENTATION

 

Further, in its ambitiousness, the Executive Order arrogates wide powers to the Honorable Attorney General of the Federation and the Accountant General of the Federation on the modalities of its implementation and enforcement. Paragraph 2 of the Order titled “Determination of Budget” opens with the outlandish words, “Notwithstanding the provisions of any existing law, convention or regulation, other than the Constitution of the Federal Republic of Nigeria 1999 (as amended), providing for appropriation or management of funds at the state tier of government as follows:“, and goes on to nominate roles and assign powers to State functionaries such as the Accountant General e.tc.

 

In [8] Saraki v FRN (2016) 3 NWLR (Pt. 1500) 425, the Supreme Court put beyond paid the radical nature of the phrase “notwithstanding” when used in a legislation thus, “when the term “notwithstanding” is used ina statute, it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that thee said section may fulfill itself”

 

Consequently, by deploying the phrase “notwithstanding the provisions of any existing law“, the Order takes on an abrogating status dethroning all laws passed by the House of Assembly of States and automatically substitutes  them with those contained in the Order. This is an affront to the law making powers of the state, and raises serious questions of the limits of the exercise of Federal executive power.

 

It is my considered view that in so far as the modalities of state appropriation of its revenue are solely matters of the State, qua A.G. Federation v A.G Bendel State, deploying a mere Executive Order by the president to achieve same, is an usurpation of the Constitutionally guaranteed powers of the Governors of the States and their House of Assembly as per section 121(1) and (2) of the Constitution which confers authorization of expenditure from consolidated revenue fund on the Governor and the State House of Assembly.

 

Not done, the Executive Order in its sheer overzealousness, creates a ‘State Judiciary Budget Committee’ at paragraph 3 and binds it on States “to serves as an administrative body to prepare, administer and implement the budget of the State Judiciary with such modifications as may be required to meet the needs of the state judiciary“.

 

These and other portions of the Executive Order dealing with the modalities of its implementation at the state level particularly, the delineation and composition of members of the SJBC constitute encroachment into the constitutionally guaranteed functions of States as autonomous constituents of the larger Federal Government, and are to that extent void.

 

The reason is not far-fetched. Nigeria operates a “system of dual sovereignty between the States and the Federal Government,” with each state having its “own government,” endowed with all the functions essential to separate and independent existence.” While it is conceded that the Constitution in section 121(3) nominates that the funds due to state legislature and Judiciary should be paid directly to its leadership, the modalities of achieving that falls to the States since the Constitution didn’t come that far. An Executive Order by the president as the head of the Federal Government cannot be used to bring it to effect as it would amount to a command by a sovereign to another autonomous arm of government against the spirit of Federalism.

 

ULTRA VIRES MODE OF ENFORCEMENT

 

Another unsettling feature of the Order is the express powers given to the Accountant general of the Federation acting in concert with the Attorney General of the Federation, to deduct from source the amount due to the judiciary and legislature of individual States who refuse or fail to comply with the Order. This can be found at paragraph 1(b) of the Order. It reads,

 

“The accountant-general of the Federation shall by this order and such any other orders, regulations or guidelines as may be issued by the attorney-general of the Federation and minister of justice, authorize the deduction from source, in the course of Federation accounts allocation from the money allocated to any state of the Federation that fails to release allocation meant for the state legislature and state judiciary in line with the financial autonomy guaranteed by section 121(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)“.

 

In what looks like a bid to walk the talk, the Attorney General of the Federation, Abubakar Malami, SAN was reported in the media reiterating the above provision. Which begs the question: can the Attorney General exercise such power? A coterminous reading of the provisions of sections 162(3) &(4) of the Constitution on the one hand; and section 167 of the same Constitution answers the question in the negative. It is clear as crystal from the referenced sections of the Constitution that the funds due to the States from the Federation Account operate as a charge upon the Consolidated Revenue Funds of the Federation. Therefore, any attempt to manage those funds per contra, would be unconstitutional. Especially where it is mandated by an Executive Order.

 

The only instance where the Federal Government may withhold funds due to States and vice versa, is in the exercise of the right of set off under section 166(1) of the Constitution which provides, “Any payment that is required by this part of this Chapter to be made by the Federation to a State may be set-off by the Federation in or towards payment of any sum that is due from that State to the Federation in respect of any loan made by the Federation to that State”. Any other instance of exercise of such power is likely to be unconstitutional. The former president Olusegun Obasanjo and Lagos State Government’s legal tussle comes to mind in this wise.

 

IS THE EXECUTIVE ORDER NECESSARY?

 

Having highlighted some of the constitutional vices of the Executive Order, I now turn to consider whether it was imperative to be issued to give effect to the provisions of the constitution that are largely self-executory such as section 121(3) of the Constitution. A self-executing law, treaty or clause is one that comes into effect immediately or automatically without the need of supplementary legislation. I have read through the implicated provision and it is my humble view that in so far as they anchor on autonomy for state legislatures and judiciary, they are self executing.

 

Ita Enang, the Senior Special Assistant on National Assembly Matters (senate), confirmed as much. Briefing State House correspondents after the 4^th Alteration Act on autonomy for state legislature and judiciary was assented by the president, in 2018. In his words, “Therefore upon this signature the amounts standing to the credit of the judiciary are to be now paid directly to the judiciary of those States, no more through the governors and no more from the governors and then the amounts standing to the credit of the Houses of Assembly of the respective States are now to be paid directly to the Houses of Assembly of that state for the benefit of the legislators and the management of the States Houses of Assembly. This grants full autonomy now to the judiciary at the state level and the House of Assembly at the state level”.

 

The implication of the above is that the law naturally came into effect with the presidential assent. If for any reason it has not been implemented to the latter by the State Governors, then it is a matter between the legislature and the judiciary in the affected States, and their state Governors. The resort to an Executive Order signed by the president is duplicitous, unnecessary and an “over-kill” of section 121(3) of the Constitution” as rightly put by Governor Kayode Fayemi of Ekiti state, who doubles as the Chairman of the Nigeria Governor’s Forum (NGF). It is therefore not surprising that the States have voiced their disgust at the Order, as it seeks to override their own powers while brandishing its good intent.

 

My legal diagnosis is that the State House of Assemblies in the States where the 4^th Alteration Act on autonomy for judiciary and the state legislature have not been fully implemented are not being alive to their responsibilities under the Constitution in giving effect to the innovation in their budgeting process. This may not be unconnected to the poor legislative work that goes on at the state legislatures who are always in bed with the State Governors. On the part of the judiciary, one would have thought the non-implementation of the law should have led to the imperatives of a strike action since that is the only leverage they may pull in the face of the disobedience of the State Governors. More so with the dawn of the 4^th Alteration Act.

 

Be that as it may, the point is, irrespective of the extent of implementation of autonomy for state legislatures and judiciary, it does not lie in the mouth of the Federal Government to override the States as that would be unconstitutional as I have tried to demonstrate.

 

WHAT IS THE WAY FORWARD?

 

It is not in dispute that the Constitution vide the 4^th Alteration Act has provided for the autonomy of the judiciary and the legislature in the States as obtained at the federal level. Neither is the rationale behind it in doubt. What is missing so far is the implementation. What then is the way out? As advised by Senator Ike Ekweremadu, the former Chairman of the Senate Committee on Constitution Review, under whose guidance the 4^th Alteration Act was born, the Federal Government and the state Governments would have to caucus and agree on the uniform modalities for achieving the autonomy of the state legislatures and judiciary in a way that works for all parties without constitutional infractions.

 

To this end, the intervention of the Ekiti State Governor, Kayode Fayemi who has approached the President and the Hon. Attorney General of the Federation to press home the objection of States on the Executive Order is welcome.

However, the reaction of the Federal Government to this gesture leaves much to be desired. At a press briefing on the 29^th May 2020, Ita Enang reiterated the Government’s resolve to continue with the implementation of the Executive Order including plans to publish same in the Federal Gazette. It is my view that such attitude on the part of the Federal Government is a recipe for a full blown Constitutional crisis which in itself would keep the Executive Order in abeyance until resolved or determined to finality, by the Supreme Court. I do not think we must go through the judicial rout.

 

Thus, the Federal Government may want to soft pedal or completely withdraw the Executive Order in place of a collaborative effort with the relevant stakeholders in the States to achieve the same goal. Another alternative is for the State Assemblies whose interest is also at the core of the controversial Order, to quickly pass laws that mirror the modalities contained in the Executive Order 10 as issued, or incorporate them in their existing appropriation laws. This would not only be binding on the Governors, but may also be a veritable ground for impeachment under section 188 of the Constitution in the event of non-compliance.

 

Also as learned Senior Advocate A.J. Owonikoko argued in an interview with The Arise News Network on the 25^th May 2020, the prevailing situation in States is enough ground for the Federal Government to drag them to Court for failure to give effect to the provisions of the 4^th Alteration Act. Such a move would undoubtedly accord with best practice and elicit a pronouncement from the Supreme Court, one way or the other, as against issuing an unconstitutional Executive Order that is a license to anarchy.

 

Another alternative is to commence the process of amending the associated sections of the Constitution that touches on the autonomy of States in the management of their revenue and other matters incidental to it. This is admittedly a long route, yet it embodies the best approach that accords with Constitutionalism in a federal state.

 

CONCLUSION

The controversy around the Executive Order 10 is a vintage manifestation of the limits of Federal Executive power in a federated democracy. In a sense it vindicates the consciousness of States as equal partners in the Federal project to guard its autonomy jealously and to keep it from prostitution by federal might. While there is no question of the salutary objectives of the Order, it is nonetheless a double-edged sword that must be handled with caution. On the other hand, the controversy has unveiled the failure of parliament at the State level. Whereas the State assemblies should serve as a check on the powers of the executive Governors in an ideal setting, what we have today is a rubber stamp legislature in most States who are in bed with their State Governors.

 

Within this unholy alliance lay the cavalier and indifferent attitude of the State assemblies to real issues of legislation that would serve the interest of the greatest number. A case in point is the conspiratorial silence across States despite the non-implementation of the 4^th Alteration Act. This has to stop. A legislature that sleeps on its Constitutional mandate in acting as check to exercise of executive power is a burden to the people whose interest it represents.

 

Yet, none of these gives the Federal Executive arm, the right to take over the role of the state apparatus particularly where the subject is not an item under the exclusive legislative list. This affront seals the fate of the Executive Order 10 hence why it should be resisted by the States and possibly withdrawn by the president. I hasten to add that this is however not a license for the State Governors to be irresponsible. As at today, the Constitution mandates the independence of the sate Judiciary and legislatures both in their operations and finance, and the Governors must see that it is done. Non-compliance is in itself an affront to the Constitution which should ground impeachment proceedings in saner democracies. That notwithstanding, the president who was actuated by altruistic motives to solve a hydra-headed problem cannot adopt an unconstitutional tool such as the Executive Order 10 as two wrongs don’t make one right.

 

Raymond Nkannebe, a legal practitioner is of Synergy Attornies and writes from Lagos. Comments and reactions to raymondnkannebe@gmail.com.  He tweets @raynkah.