President Buhari’s Executive Order 10 is a subversion of our federal system and therefore void for unconstitutionality
by Professor Ben Nwabueze SAN; CON; NNOM
The diversion by the State Governors of monies meant for their legislative assemblies, judiciaries, and local government councils is condemnable and calls for firm actions to stop it. The Fourth Alteration to the Constitution (Act No. 7) of 2018 was aimed at stopping it, so far as concerns monies meant for the State Houses of Assembly. The Alteration neither adds to nor substracts from the financial autonomy already granted to the Judiciary by the pre-existing section 121(3) of the Constitution. The Alteration granted financial autonomy to the State House of Assembly but lumped it together with the financial autonomy of the State Judiciaries as it existed under section 121(3) before the Fourth Alteration in 2018. It is not clear why the Fourth Alteration chose this rather confusing way to bring about the change.
But be that as it may, the issue for consideration and determination here is whether it is constitutionally competent to President Buhari to try to implement the State Houses of Assembly’s financial autonomy by means of Executive Order 10 issued by him in his capacity as Head of the executive arm of the Federal Government. Granted that the financial autonomy of the State Houses of Assembly should be protected against diversion of their money by the State Governors, by what means and at what cost should this be done? Should it be by means of an Executive Order made by the President as sole individual in his capacity as Head of the executive arm of the Federal Government? Executive Orders are something new in Nigeria, and their constitutional boundaries, as a form of legislation, are yet to be delineated and defined.
In making Executive Order 10, the President relies on section 5(1) of the Constitution as authority for making it. Does the subsection in fact confer such authority?
- EXECUTIVE ORDER 10 IS NULL AND VOID BY THE OPERATION OF THE OPENING WORDS, “SUBJECT TO THE PROVISIONS OF THIS CONSTITUTION” IN SECTION 5(1)
Section 5(1) of the Constitution provides:
(1) Subject to the provisions of this Constitution, the executive powers of the Federation-
(a) “shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation.”
It needs to be stated that the term this “Constitution” includes the Fourth Alteration granting financial autonomy to the State Houses of Assembly and Judiciary.
In relying on section 5 as authorising Executive Order 10, the President appears to have conveniently ignored the phrase “subject to the provisions of this Constitution” which appears twice in the section. The phrase, “subject to,” is a term implying that a power made subject to, or dependent on, something else is open to qualifications that may even nullify it.
It must be emphasised that the President’s executive power is made subject, not just to any one particular provision of the Constitution, which is the more usual phraseology used, as in section 9, which says “subject to the provisions of this section,” or “subject to the provisions of section 28 of this Constitution” used in sections 26 and 27. The vesting of executive power under section 5 is instead made subject TO ALL the provisions of the Constitution.
One of the most fundamental provisions to which the President’s executive power is made subject under section 5(1) above is the provision dividing powers of government between the Federal Government and the State Governments under sections 4, 5 and 6, the effect of which is to establish a federal system of government for the country. Executive Order 10 is unconstitutional and void because it trenches on the autonomy of the State Governments flowing from the division of powers, which making it inconsistent with our federal system. The inconsistency is manifested beyond doubt by article 6 of the Executive Order, which provides:
“The Accountant-General of the Federation shall by this order and such other orders, regulations or guidelines as may be issued by the Attorney-General of the Federation (AGF) and Minister of Justice, authorize the deduction from source in the course of the Federal Accounts Allocation from the money allocated to any state of the federation that fails to release allocation meant for the state legislature and judiciary in line with financial autonomy.”
The above sanctions prescribed by the Executive Order more or less repeat those enacted by the Monitoring of Revenue Allocation to Local Governments Act 2005 made by the National Assembly. The Act enjoins “each State of the Federation (to) establish a body to be known as the State Joint Local Government Account Allocation Committee” (section 1). The membership of the Committee, as provided by the Act itself, includes (a) the Commissioner or any other officer charged with responsibility for local government in the State (Chairman); (b) a Commissioner of Revenue Mobilization, Allocation and Fiscal Commission; (c) all Chairmen of local government councils in the State; (d) the State Accountant-General; (e) a representative of the Accountant-General of the Federation; and (f) a representative of the State Revenue Board (section 1(2)).
The functions of the Committee are (i) to ensure prompt payment into the State Joint Local Government Account of allocations made to the local government councils in the State from the Federation Account by the State Government, and that the funds so paid are distributed to the said councils in accordance with the provisions of the Constitution and any law made in that behalf by the State House of Assembly; (ii) to monitor the payment and distribution so as to ascertain the actual amount paid to each local government council (section 2). Monthly returns must be rendered by the Committee to the Federation Account Allocation Committee which shall scrutinize them and in turn render quarterly returns through the Accountant-General of the Federation to each House of the National Assembly (section 3) while the Auditor-General of the Federation shall at the end of each financial year report to each House of the National Assembly, “stating how the monies allocated to each State for the benefit of the local government councils within the State… were spent.” (section 9).
The Act makes it a criminal offence for any organ, authority or official of a State, however described or constituted, to alter, deduct or re-allocate funds standing to the credit of the State Joint Local Government Account” (section 7(1) (emphasis supplied), and prescribes as punishment therefor, “a fine twice the amount altered, deducted or re-allocated illegally, or imprisonment for a term of five years, or both such fine and imprisonment (section 7(3)). And where there is default in allocation or distribution to any local government council, the amount involved in such default “shall be a first charge on the State’s next allocation from the Federation Account and shall be credited to the affected local government” (section 7(2)).
The provisions of the Act set out above (i.e. sections 1, 2, 3, 7 and 9) were challenged in the original jurisdiction of the Supreme Court by three State Governments, Abia, Delta and Lagos, on the ground that they are inconsistent with the Constitution and therefore null and void: Att-Gen of Abia State & Ors v. Att-Gen of the Federation & Ors SC 99/2005 – the three suits were consolidated into one.
The view underlying the provisions of the Act is that the money in the Federation Account belongs alone to the Federal Government which, as owner and paymaster, has the power and duty to ensure its proper utilization and management by the recipients of its largesse, i.e. the State and Local Governments. Such is certainly not the case. The Federation Account is a common pool of revenue belonging to all the governments alike, and sharing of it amongst the joint owners is assigned to the Federal Government by the Constitution for reasons of expediency. The Constitution of a federal state cannot reasonably be supposed to have contemplated that, in the discharge of that role, the Federal Government should prescribe terms or conditions so utterly at variance or subversive of the very notion of federalism as a system of government.
Gratifyingly, the Supreme Court, by a majority of five to two, declared unconstitutional, null and void the provisions of the Act that purport to invest the Federal Government with supervisory role over the use, management and disbursement of money in the State Joint Local Government Account, i.e. sections 2, 3, 7 and 9 of the Act. Justice Niki Tobi, delivering the judgment of the Court, said that these provisions of the Act “are clearly against the federal arrangement in the Constitution”, and that “it has traits of unitarism”; further, that “the word ‘monitoring’ used in the Act “conveys some element of policing the State Governments.” “The word,” he maintains, “means to watch, to check. In terms of showing strength of the Federal Government, it is a very arrogant word that spells some doom in a federal structure”: at pages 29 – 30. (emphasis supplied)
The Monitoring Act, enacted by the National Assembly, was aimed at protecting the financial autonomy of the local government councils which may be considered as important as, if not more important than, the financial autonomy of the State Houses of Assembly. And yet the Supreme Court struck down the Act as unconstitutional and void. Like the Monitoring Act, Executive Order 10 is null and void for the same reason as stated by the Supreme Court for nullifying the Monitoring Act.
The learned justices of the Supreme Court further affirm that the provision of the Act that makes two federal officers members of a state government committee “is antithesis to federalism and to our federal arrangement” (at page 35).
The Supreme Court also held that allocation of money from the Federation Account direct to local government councils without channeling it through the State Governments, which will then divide and pay it over to their local government councils, as directed by the Constitution, is unconstitutional, null and void, op.cit at pages 27 and 35. Accordingly, the provision of section 7(2) of the Monitoring Act which, it may be recalled, makes any amount by which a State Government is in default in its payments to any of its local government councils a first charge on the State Government’s next allocation from the Federation Account, which is then to be paid direct to the local government council concerned is unconstitutional, null and void. Certainly, the payment in this case is not one by the State Government to the local government councils, as provided by the Constitution. The fact that payment under the provision of section 7(2) is in consequence of a default in payment by the State Government does not make it any the less a breach of constitutional requirement.
If the Monitoring Act, an enactment of the National Assembly, the supreme law-making body for the country, could be struck down by the Supreme Court for trenching on the autonomy of the State Governments, then, Executive Order 10, which also trenches on the autonomy of the State Governments, should be much more liable to be so struck down, since the Executive Order is a subordinate instrument made by the President as a sole individual in his capacity as Head of the executive arm of the Federal Government.
It is noteworthy as well as significant that the Fourth Alteration (Act No. 7 of 2018) did not amend or alter section 162(5), (6), (7) and (8) of the Constitution, so as to reverse the decision of the Supreme Court in the Monitoring Act case, thus leaving in undiminished force, the decision and the rationale for it stated in the judgment of the Supreme Court.
Thus, by the authority of the decision of the Supreme Court in the Monitoring Act case, article 6 of Executive Order 10, being manifestly inconsistent with our federal system as established by the Constitution, makes the Order null and void. And since it purports to be a “law,” the Order comes within the compass of section 1(3) of the Constitution which makes null and void any other law inconsistent with its provisions – to the extent of the inconsistency. It is simply amazing that, with knowledge of all this, the President still went ahead to make Executive Order 10, which makes it a case of pre-meditated subversion.
- WHETHER, LEAVING ASIDE THE OPENING WORDS “SUBJECT TO THE PROVISIONS OF THIS CONSTITUTION,” THE OTHER PROVISIONS OF SECTION 5(1) AND (2) AUTHORISE THE MAKING OF EXECUTIVE ORDER 10?
To begin with, the nexus or relation between the other provisions in section 5(1) and (2), if there is any nexus at all between them, is far-fetched, and not easily discernible. The provisions need therefore to be set out to facilitate an examination of them to determine whether they authorise the making of Executive Order 10.
Section 5(1) Subject to the provisions of this Constitution, the executive powers of the Federation-
(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make laws.
(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, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State; and
(b) shall extend to the execution and maintenance of this Constitution all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.”
The power to execute and maintain the Constitution is, admittedly, a cardinal power, but it does not enable the President to issue Executive Order 10 for two main reasons;
first, because the President’s executive power is counter-weighed by the corresponding provision in section 5(2) vesting concurrently in the State Governors, the same power to execute and maintain this Constitution as is vested in the President by section 5(1). This concurrent vesting of the power to execute and maintain the Constitution is designed to balance the power equation between the Centre and the States; subsection 5(2) is thus a counter-vailing force, as it were.
second, and more importantly, as already pointed out, the power of the President to execute and maintain the Constitution is by the opening words of section 5(1), restricted to the execution and maintenance of the Constitution as the provisions of the Constitution relate to the affairs, relations, composition, structure etc of the Federal Government, but not as they relate exclusively to the affairs, relations, composition, structure etc the State Governments. The autonomy of the State Governments under the federal system flowing from the division of powers, forbides and precludes that.
- THE OVERRIDING IMPORTANCE OF THE AUTONOMY OF THE STATE GOVERNMENTS VIS-À-VIS THE FINANCIAL AUTONOMY OF THEIR HOUSES OF ASSEMBLY
It is admitted on all sides that the autonomy of the State Governments in a federal system and the financial autonomy of their Houses of Assembly are both important, and should both be safeguarded, but the former overrides the latter, and should be accorded pride of place in the event of contestation between them. Arguably, Nigeria can hardly continue to exist, except under a federal arrangement truly be-called. Gen Yakubu Gowon (rtd), as the then Head of the Federal Military Government, affirmed this as long ago as 1966 when he said: “the incidents of May last in Northern Nigeria following the tendencies to extreme unification during the period after January 17 points to one and only one thing. That a country as big as Nigeria and comprising such diversity of tribes and cultures cannot be administered successfully under a unitarian form of Government.” Accordingly, on assumption of office after the overthrow of General Ironsi, he promptly abolished the latter’s unitary system, and restored federalism.
The autonomy of the State Governments flowing from the federal system was pointedly affirmed by the Supreme Court in Att-Gen of Lagos State v. Att-Gen of the Federation & Ors (2003) 6 S.C. (Pt 1) 24, where Uwaifo JSC, delivering the lead judgment for the Court, said:
“But I do not need to repeat that Nigeria operates a federal system of government. Section 2(2) of the 1999 Constitution re-enacts the doctrine of federalism. This ensures the autonomy of each government. None of the governments is subordinate to the other. This is of particular relevance between the state governments and the federal government, each being, as said by Nwabueze in his book, The Presidential Constitution of Nigeria, pages 39 – 42, an autonomous entity in the sense of being able to exercise its own free will in the conduct of its affairs within the Constitution, free from direction by another government. I think it is significant that shortly before and since the independence of Nigeria in 1960, all the Constitutions that have been enacted have taken the pattern of federalism” (emphasis supplied).
Whilst disagreeing with the majority decision in this case, Uwais CJN nevertheless acknowledged the autonomy of the State Governments as a principle of Nigeria’s federal system. He said:
“By section 2(2) of the 1999 Constitution, Nigeria shall be a Federation and by the doctrine of federalism, which Nigeria has adopted, the autonomy of each Government, which presupposes its separate existence and its independence from the control of the other Governments, including the Federal Government, is essential to federal arrangement. Therefore, each government exists not as an appendage of another government but as an autonomous entity in the sense of being able to exercise its own free will in the conduct of its affairs free from direction by another government.”
The Supreme Court in that case held unconstitutional, null and void, an Act of the National Assembly, the Nigerian Urban and Regional Planning Decree 1992 (now Act) for trenching on the autonomy of the State Governments.
This passage from the judgment of Uwais CJN was re-echoed by Niki Tobi JSC in his lead judgment for the Supreme Court in the more recent case of Att-Gen of Abia State & Ors v. Att-Gen of the Federation & Ors delivered on 7 July 2006, where another Act of the National Assembly was declared unconstitutional, null and void for the same reason that it trenched on the autonomy of the State Governments. There are several other decisions affirming the autonomy of the State Governments as a principle of our federal system.
We would be playing to the gallery by publicly professing to be protecting the financial autonomy of the State Houses of Assembly while at the same time using such protection as a reason for undermining the autonomy of the State Governments. The former should be protected alongside the autonomy of the State Governments.
It is surprising that, in the face of Executive Order 10, the State Governors appear, for partisan, political reasons, to be shying away from taking a firm stand against such subversion of our federal system as exhibited by the Executive Order. They have merely set up a committee to look into it and make recommendations. One is devastated by the latest news that they have accepted Executive Order 10, i.e. that they have accepted a fatal undermining of the autonomy of the State Governments as a principle of our federal system. The press too appears to be wavering in their characteristic courageous boldness.
Professor Ben Nwabueze
June 3, 2020