OPINION: The Executive Order 10 and Democracy

In every society there are laws and institutions created to sustain order and stability. In a society like Nigeria, we uphold and practice the Federal system of government. This system of government is divided into; The National ( Federal) government and the Subnational (State and Local) governments. The systems operate under the supreme law of the nation, the Constitution. In a federal system there is distinction of functions and powers within the governments. Furthermore, there are arms which constitute all systems of government; The Executive, Legislature and the Judiciary.

These arms are responsible for different functions of government at all levels. We are familiar with the fact that the Legislature is responsible for the enactment of laws.

In a recent occasion, the Supreme court passed a judgement that annulled President Buhari‘s Executive Order 10. This Executive Order was passed by the President to oblige the 36 states of the federation to execute the financial autonomy granted to the legislature and judiciary by the Constitution of the federation.

The Order had spelled that in the event of failure of any state government to release the allocations due their legislature and judiciary, the Accountant General of the Federation should deduct the allocation from the initial source and then pay it to the legislature or judiciary in the defaulting states.

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It should therefore be registered that the Federal Republic of Nigeria is as the name connotes, is a Federation. The President in this regard acted Ultra vires. Profoundly, the Executive Order is in bonum fidei, but it is rather an issue of variance and legality. The 1999 Constitution is very clear in its provision pertaining this development, in Section 121(3): “Any amount standing to the credit of the judiciary in the Consolidated Revenue Fund of the State shall be paid directly to the heads of the courts concerned”. This provision is already a variant one as it stands.

However, Section 5 of the 1999 Constitution confers the President with both individual and delegated powers. It is also important to note that the Executive Order 10 rather sought to help state governments and not necessarily the federal government. It was with the intent to ensure that State houses of assembly and judiciary operate independently as required by law. Legally, this requirement already exists and doesn’t need any Order ‘backups’.

The Executive Order concept can be glimpsed in the United States, in which it is given as a directive by the President of the United States. Contrary to the provisions of our Constitution, Article 2 of the United States Constitution gives the President in breadth executive and enforcement authority to use their circumspection to determine how to enforce the law or otherwise.

In Nigeria, the powers and functions of each arms of government are clearly stipulated in the 1999 Constitution. To uphold democracy, no function or power of any arm of government should be trampled upon by another.

The essence of democracy as an institution is to establish control, and as included in our legal written document; Separation of Powers. The Supreme Court(the Judiciary) has simply exercised that role on the President (the Executive). The constitutional function of the Federal government on this subject matter is provided in Section 84(7): “The recurrent expenditure of judicial offices in the Federation (in addition to salaries and allowances of the judicial officers mentioned in subsection (4) of this section) shall be charge upon the Consolidated Revenue Fund of the Federation”.

The democratic aid needed by the state governments in this regard is an enforcement of the Constitutional provisions and not an Executive Order.

AUTHOR: Chinedum Anayo

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Articles published in our Graffiti section are strictly the opinion of the writers and do not represent the views of Ripples Nigeria or its editorial stand.

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