Executive Order 10 – The Nation

  • Rumpus over presidential legislation pitches states against the centre

Disagreement between the two major tiers of government is not strange under the presidential system. This is not peculiar to Nigeria as the United States of America that serves as model for the system also experiences such hiccups periodically. Although Separation of Powers, first propounded by the French theorist Monsieur Montesquieu, is a key feature of the presidential system, while constitutional distribution of power between the centre and federating units define the federal structure, conflicts surface even in otherwise stable federations.

Since May 22 when President Muhammadu Buhari signed the Executive Order 10 and got it gazetted, the scope, essence and motive have continued to generate heated debate among scholars, political activists and key actors of the three arms of government at the national and sub-national levels. While Separation of Powers connotes that the executive, legislature and judiciary function as independent branches of government, exercising responsibilities assigned each under the constitution, practice has shown that they cannot be separated into watertight compartments. Through judicial precedence and adjudicatory activism courts are known to “make” laws. Similarly, the legislature, by exercising the oversight function, approval of key executive and judicial  functionaries, as well as impeachment of the chief executives, perform quasi executive and judicial roles. The president at the federal, and governors at the state level, are known to initiate the most important bills and their assents conclude the legislation process. They also nominate judges and justices of superior courts of the land.

Executive Orders are, however, novel in Nigeria. Until the Buhari administration, no Nigerian President is known to have signed, gazetted and implemented such orders, even though it is already an accepted feature of the American governance structure. Indeed, the legendary American President Franklin Delano Roosevelt issued almost 3,000 such orders. When Professor Yemi Osinbajo first applied the instrument in 2017 as Acting President, it generated little debate because it was on a purely economic matter – promoting the ease of doing business. It has since gradually moved to more contentious political issues that border on power grabbing. The President had issued an order granting autonomy to local government councils. He had to exhume a 1926 Quarantine Act to justify enacting Executive Order 9, apparently to contain the COVID-19 pandemic.

Order 10 is the most contentious. It located wide-ranging power at the centre that seems to have suggested that governors only enjoy as much power as they are allowed by the President. Citing Section 121 (3) of the 1999 Constitution, the President has prescribed how money accruing to states may be apportioned among the three arms of government. Whatever accrues to the legislature and executive are to be paid directly into their accounts from the Federation Account. Besides, the Attorney-General of the Federation would appear to have emerged a clearing house on any issue arising from the development.

The order states: “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, authorise 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)”.

The governors have threatened to drag the Federal Government before the courts with a view to ascertaining the power of the President to meddle in horizontal allocation of resources. Where such resources are deemed to have been distributed against the grain of the law, shouldn’t the legislature or judiciary at the state level as the case may be, be encouraged to seek judicial intervention? Where the President is allowed to earmark so much power to his Attorney-General and Accountant-General, wouldn’t the states be reduced to mere departments of the Federal Government? Why is the President so swift at “giving effect” to the constitution in this case, but unwilling in other constitutional matters such as periodic review of revenue allocation, census, consultation of the Police Council on appointment of the Inspector-General of Police and policy matters?

The President is correct in observing that many state governors have constituted themselves into despots and emasculated other arms of government, but whether the solution lies in presidential appropriation of powers through an  Executive Order can only be settled in court if the legal committee of the Nigerian Governors Forum comprising of the governors of Ondo, Plateau and Sokoto fails to resolve the conflict. The limits of Executive Order should be determined now.

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