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Supreme Court Voids Buhari’s Executive Order 10, Declares it illegal

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The Supreme Court, yesterday, declared the Executive Order 10, which President Muhammadu Buhari issued on the funding of State Judiciary and Legislature, illegal.

The apex court, in a split decision by a seven-man panel, led by Justice  Mohammed Dattijo, held  that President Buhari acted beyond his statutory powers, stressing that the  Executive Order 10, was inconsistent with the 1999 Constitution, as amended, and therefore unconstitutional, illegal, null and void.

The judgement followed a suit that was filed by 36 states of the federation.

While six Justices-Dattijo,  Centus Chima Nweze, Hellen Ogunwumiju, Emmanuel Agim, Ejembi Eko and Adamu Jauro,  upheld the suit, a member of the panel, Justice  Uwani Abba-Aji, dismissed  it.

It will be recalled that President Buhari had in the Executive Order he signed on May 22, 2020, made it mandatory for all states to include allocations of both the legislature and the Judiciary in their Appropriation Laws, in compliance with section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).

However, in the suit marked SC/655/2020, which was filed on September 17, 2020, the 36 States, through their Attorneys-General, queried the legality of the Presidential Executive Order 10.

The plaintiffs posed two legal questions for the Supreme Court to determine, following which they asked for nine reliefs.

They argued that President Buhari, by virtue of the said Executive Order, pushed the federal government’s responsibility of funding both the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal, and the Customary Court of Appeal, to the state governments.

They contended that the order  was a clear violation of sections 6 and 8(3) of 1999 Constitution, which made it the responsibility of the Federal Government to fund the listed courts.

The 36 states, which said they had been funding capital projects in the listed courts since 2009, prayed the Supreme Court to order the Federal Government to make a refund to them, a relief they apex court rejected yesterday.

The Attorney-General of the Federation was cited as the sole defendant in the matter.

In a lead judgement that was delivered by Justice Dattijo, the apex court, held that President Buhari over-stepped his bounds with the Executive Order 10, and thereby engaged in breach of the constitution and usurpation of powers of heads of other arms of government.

“This country is still a federation and the 1999 Constitution it operates is a federal one. The constitution provides a clear delineation of powers between the state and the Federal Government.

“The president has overstepped the limit of his constitutional powers by issuing the Executive Order 10.

“The country is run on the basis of the rule of law,” Justice Dattijo held.

However, in his dissenting verdict, Justice Abba-Aji maintained that the   Executive order was meant to grant fiscal autonomy to both the judiciary and the legislature at the state level.

“We are not unaware of the hanky panky and subterfuge played by state governors against the independence and financial autonomy of state judiciary.

“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.

“Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions. The Executive Order  is to aide the states legislature and judiciary in curing the constitutional wrong of their financial autonomy which the states have always denied. This is not unconstitutional,” he held.

The states had in their statement of claim, averred that since May 5, 2009, Federal Government had not funded the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the Plaintiffs’ states, apart from paying only the salaries of the judicial officers of the said courts.

“The Plaintiffs’ states have been solely responsible for funding the capital and recurrent expenditures of the state high courts, Sharia Court of Appeal and the Customary Court of Appeal of the Plaintiffs’ states, which the Defendant has failed and/or refused to fund.”

According to them, section 81(3) of the 1999 Constitution, made provision for the funding of the courts.

“That item 21(e) of the Third Schedule to the 1999 Constitution provides that the National Judicial Council (NJC) is to collect from the defendant and disburse all capital and recurrent expenditure in respect of all the courts established under  section 6 of the same constitution.

“That section 12(3) of the constitution makes provision for all capital and recurrent expenditures for court not established under section 6 of the constitution by the respective plaintiff’s states,” they stated.

Consequently, aside from urging the Supreme Court to quash the Executive Order 10, the Plaintiffs are also seeking an order to compel the Federal Government to henceforth, fund both capital and recurrent expenditures of the courts.

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