Democratic governance stands on a tripod: Executive, Legislative and Judicial arms. In theory, each is independent but complements one another in line with the principle of checks and balances the constitution envisages. In practice, this pristine culture in a democracy has been mangled in Nigeria since the birth of the Fourth Republic because of the vacuity of financial autonomy of the legislature and the judiciary. A move to reverse this ugly trend at the state level found resonance in Executive Order 10 that the President, Major General Muhammadu Buhari (retd.), signed on May 22.
One of the most common “presidential” documents in a modern government is an executive order, says the American Bar Association. It has the force of law, much like regulations issued by federal agencies, until it is overturned by the judiciary or the legislature. Applauded by many stakeholders, Executive Order 10 gives effect to Section 121 (3) of the 1999 Constitution, which states, “Any amount standing to the credit of the Judiciary in Consolidated Revenue Fund of the State shall be paid to the heads of the courts concerned.” This has never been in practice in the states where the governors behave like emperors in their flagrant breach of the constitution.
Buhari is, therefore, right in rescuing these two arms of government from state executive recklessness. Constitutionally, the legislature is a separate, co-equal branch (indeed, theoretically, it is the first branch of government and the executive the second) that share governmental power. The principal functions of the legislature are balancing power, representing constituencies and making laws. A good legislature, accordingly, has to be relatively independent of the executive. It must insist on participating in the initiation of policy and refuse to rubber-stamp executive proposals, according to the National Association of States Legislatures in the United States. The budget is probably the most important bill that a legislature passes and should be done in the best interest of the people.
To build a truly democratic society, the effectiveness, independence and integrity of the legislature must be entrenched. But over the years, these basic norms of democracy have been put on their head. Through the Constitution Alteration Act No 4 of 2017, the budgets of the state judiciary and the legislature are, therefore, put on first line charges.
In January 2014, a Federal High Court in Abuja presided over by Ademola Adeniji had excoriated the state chief executives for “the piecemeal payments/allocations of funds through the states’ ministry of finance to the states’ judiciaries” and, therefore, ordered strict compliance with the constitution. This was followed by another ruling four months later, by Ahmed Mohammed of the same court, affirming Adeniji’s ruling in a suit instituted by a former President of the Nigerian Bar Association, Olisa Agbakoba (SAN). In lauding the move taken by Buhari, the silk said, “this executive order has the potential to kick-start the long-awaited rebalancing of the federation.”
Undoubtedly, the independence of both arms of government is a farce without financial autonomy. This has been demonstrated in many ways in the states. In Imo State, for instance, Governor Hope Uzodimma solicitously bought 20 Sport Utility Vehicles for judges recently and expressed the readiness to work with them. His parochial view of the gesture is that it is a way of motivating them, promising to improve their welfare and working conditions, clearing the arrears of entitlements of retired judges and ensuring that the entitlements of retiring judges were paid in less than two months after they had left office. This is the crux of the matter.
A judiciary that depends on the governor to provide it with basic needs to function exposes itself to compromise and ridicule. This is deleterious to accountability in governance and the rule of law, the very foundation of democracy. A judiciary in such jeopardy is a threat to the people. It is for this reason that the seventh United States President, Andrew Jackson, said, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” This is true.
Here, the fundamental rights of Nigerians to the dignity of human person; right to peaceful assembly and association; freedom of expression and the press as guaranteed by the constitution are crudely violated by political authorities without the judiciary providing the expected remedy or sanctuary. With the abuse of office by governors, the country needs a strong and firm judiciary, which arbitrates disputes without let or hindrance. That way, the Bench will rediscover its respect, magisterial aura and public confidence.
The situation is more bizarre in the state assemblies. Governors have turned them into appendages of their offices as lawmakers carry out their functions under the whims and caprices of the state chief executives. Acting as dictators, governors decide their funding, pick who becomes a speaker, factionalise assemblies, and in some cases, sponsor minority lawmakers, with police protection, to lord it over the majority in the choice of principal officers. In one of the South-South states in the present dispensation, just nine lawmakers met in the dead of the night and elected a speaker backed by the governor, to the exclusion of all 14 others. Such deception has been on since 1999.
It is ironic that state assemblies applauding the Executive Order 10 now had spurned the same constitutional right, obnoxiously influenced by governors, a decade ago. The National Assembly in the process leading to the 2010 amendment to the constitution forwarded the financial autonomy bill to state legislatures for concurrence. Only 23 state assemblies concurred, one short of the minimum of 24, which made the mandatory two-thirds needed for the amendment to scale through impossible.
States, in the past 21 years, have been stolen blind by governors through security votes, which are not accounted for. The lawmakers dutifully approved the heist and the obscene life pension benefits for ex-governors, instigated by the beneficiaries while still in office. These inappropriate charges on public treasury have been declared null and void by the court. But no state legislature has leveraged this to repeal the obnoxious Acts granting these obscene entitlements, except in Zamfara and Imo states where the Executive arm nudged them into action.
Yet, under Section 128 (2), the constitution enshrines the power of the House of Assembly to (b) “expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and the disbursement or administration of funds appropriated by it.” Being financially independent of the Executive arm will give state assemblies the bite to carry out this critical oversight functions, promote democratic consolidation and enhance service delivery. Without vibrant state legislature and judiciary undergirded by the constitution, any claim to democratic governance in the country will remain a charade.