Elder statesman and constitutional lawyer, Professor Ben Nwabueze, SAN, diagnoses Govt Order 10 issued by President Muhammadu Buhari to offer monetary autonomy to the state Homes of Meeting and the judiciary, saying State Governors seem, for partisan, political causes, to be shying away from taking a agency stand towards such subversion of our federal system
- INTRODUCTORY
The diversion by State Governors of monies meant for his or her legislative assemblies, judiciaries and native authorities councils is condemnable and requires agency actions to cease it. The Fourth Alteration to the Structure (Act No. 7) of 2018 was aimed toward stopping it, as far as issues monies meant for the State Homes of Meeting. The Alteration neither provides to nor subtracts from the monetary autonomy already granted to the Judiciary by the pre-existing Part 121(3) of the Structure. The Alteration grants monetary autonomy to the State Home of Meeting however lumps it along with the monetary autonomy of the State Judiciaries because it existed below Part 121(3) earlier than the Fourth Alteration in 2018. It isn’t clear why the Fourth Alteration chooses this moderately complicated technique to carry in regards to the change.
However be that as it might, the problem for consideration and willpower right here is whether or not it’s constitutionally competent for President Buhari to attempt to implement the State Homes of Meeting’s monetary autonomy by the use of Govt Order 10 issued by him in his capability as Head of the chief arm of the Federal Authorities. Granted that the monetary autonomy of the State Homes of Meeting needs to be protected towards diversion of their cash by State Governors, by what means and at what price ought to this be accomplished? Ought to it’s by the use of an Govt Order made by the President as sole particular person in his capability as Head of the chief arm of the Federal Authorities? Govt Orders are one thing new in Nigeria, and their constitutional boundaries, as a type of laws, are but to be delineated and outlined.
In making Govt Order 10, the President depends on Part 5(1) of the Structure as authority for making it. Does the subsection in truth 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)
Part 5(1) of the Structure supplies:
- Topic to the provisions of this Structure, the chief powers of the Federation-
- “shall be vested within the President and will, topic as aforesaid and to the provisions of any legislation made by the Nationwide Meeting, be exercised by him both immediately or by means of the Vice-President and Ministers of the Authorities of the Federation or officers within the public service of the Federation.”
It must be acknowledged that the time period this “Structure” consists of the Fourth Alteration granting monetary autonomy to the State Homes of Meeting and Judiciary.
In counting on Part 5 as authorising Govt Order 10, the President seems to have conveniently ignored the phrase “topic to the provisions of this Structure” which seems twice within the Part. The phrase, “topic to,” is a time period implying {that a} energy made topic to, or depending on, one thing else is open to {qualifications} which will even nullify it.
It have to be emphasised that the President’s govt energy is made topic, not simply to anybody explicit provision of the Structure, which is the extra standard phrasing used, as in Part 9, which says “topic to the provisions of this Part,” or “topic to the provisions of Part 28 of this Structure” utilized in Sections 26 and 27. The vesting of govt energy below Part 5 is as an alternative made topic TO ALL the provisions of the Structure.
One of the vital elementary provisions to which the President’s govt energy is made topic below Part 5(1) above is the supply dividing powers of presidency between the Federal Authorities and State Governments below Sections 4, 5 and 6, the impact of which is to determine a federal system of presidency for the nation. Govt Order 10 is unconstitutional and void as a result of 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 past doubt by Article 6 of the Govt Order, which supplies:
“The Accountant-Basic of the Federation shall, by this order and such different orders, laws or tips as could also be issued by the Legal professional-Basic of the Federation (AGF) and Minister of Justice, authorize the deduction from supply in the midst of the Federal Accounts Allocation from the cash allotted to any state of the federation that fails to launch allocation meant for the state legislature and judiciary in keeping with monetary autonomy.”
The above sanctions prescribed by the Govt Order, kind of, repeat these enacted by the Monitoring of Income Allocation to Native Governments Act 2005 made by the Nationwide Meeting. The Act enjoins “every State of the Federation (to) set up a physique to be often known as the State Joint Native Authorities Account Allocation Committee” (Part 1). The membership of the Committee, as offered by the Act itself, consists of (a) the Commissioner or some other officer charged with accountability for native authorities within the State (Chairman); (b) a Commissioner of Income Mobilization, Allocation and Fiscal Fee; (c) all Chairmen of native authorities councils within the State; (d) the State Accountant-Basic; (e) a consultant of the Accountant-Basic of the Federation; and (f) a consultant of the State Income Board (Part 1(2)).
The features of the Committee are (i) to make sure immediate cost into the State Joint Native Authorities Account of allocations made to the native authorities councils within the State from the Federation Account by the State Authorities, and that the funds so paid are distributed to the stated councils in accordance with the provisions of the Structure and any legislation made in that behalf by the State Home of Meeting; (ii) to observe the cost and distribution in order to establish the precise quantity paid to every native authorities council (part 2). Month-to-month returns have to be rendered by the Committee to the Federation Account Allocation Committee which shall scrutinize them and in flip render quarterly returns by means of the Accountant-Basic of the Federation to every Home of the Nationwide Meeting (part 3) whereas the Auditor-Basic of the Federation shall on the finish of every monetary 12 months report to every Home of the Nationwide Meeting, “stating how the monies allotted to every State for the good thing about the native authorities councils throughout the State… had been spent.” (Part 9).
The Act makes it a prison offence for any organ, authority or official of a State, nonetheless described or constituted, to change, deduct or re-allocate funds standing to the credit score of the State Joint Native Authorities Account” (part 7(1) (emphasis provided), and prescribes as punishment due to this fact, “a effective twice the quantity altered, deducted or re-allocated illegally, or imprisonment for a time period of 5 years, or each such effective and imprisonment (Part 7(3)). And the place there may be default in allocation or distribution to any native authorities council, the quantity concerned in such default “shall be a primary cost on the State’s subsequent allocation from the Federation Account and shall be credited to the affected native authorities” (part 7(2)).
The provisions of the Act set out above (i.e. Sections 1, 2, 3, 7 and 9) had been challenged within the authentic jurisdiction of the Supreme Courtroom by three State Governments, Abia, Delta and Lagos, on the bottom that they’re inconsistent with the Structure and due to this fact null and void: Att-Gen of Abia State & Ors v. Att-Gen of the Federation & Ors SC 99/2005 – the three fits had been consolidated into one.
The view underlying the provisions of the Act is that the cash within the Federation Account belongs alone to the Federal Authorities which, as proprietor and paymaster, has the ability and responsibility to make sure its correct utilization and administration by the recipients of its largesse, i.e. the State and Native Governments. Such is definitely not the case. The Federation Account is a standard pool of income belonging to all of the governments alike, and sharing of it amongst the joint homeowners is assigned to the Federal Authorities by the Structure for causes of expediency. The Structure of a federal state can’t moderately be purported to have contemplated that, within the discharge of that position, the Federal Authorities ought to prescribe phrases or circumstances so completely at variance or subversive of the very notion of federalism as a system of presidency.
Gratifyingly, the Supreme Courtroom, by a majority of 5 to 2, declared unconstitutional, null and void the provisions of the Act that purport to speculate the Federal Authorities with supervisory position over the use, administration and disbursement of cash within the State Joint Native Authorities Account, i.e. Sections 2, 3, 7 and 9 of the Act. Justice Niki Tobi, delivering the judgment of the Courtroom, stated that these provisions of the Act “are clearly towards the federal association within the Structure”, and that “it has traits of unitarism”; additional, that “the phrase ‘monitoring’ used within the Act “conveys some aspect of policing the State Governments.” “The phrase,” he maintains, “means to look at, to test. When it comes to displaying power of the Federal Authorities, it’s a very smug phrase that spells some doom in a federal construction”: at pages 29 – 30. (emphasis provided)
The Monitoring Act, enacted by the Nationwide Meeting, was aimed toward defending the monetary autonomy of the native authorities councils which can be thought-about as essential as, if no more essential, than the monetary autonomy of the State Homes of Meeting. And but the Supreme Courtroom struck down the Act as unconstitutional and void. Just like the Monitoring Act, Govt Order 10 is null and void for a similar motive as acknowledged by the Supreme Courtroom for nullifying the Monitoring Act.
The realized justices of the Supreme Courtroom additional affirmed that the supply of the Act that makes two federal officers members of a state authorities committee “is antithesis to federalism and to our federal association” (at web page 35).
The Supreme Courtroom additionally held that allocation of cash from the Federation Account direct to native authorities councils with out channeling it by means of the State Governments, which can then divide and pay it over to their native authorities councils, as directed by the Structure, is unconstitutional, null and void, op.cit at pages 27 and 35. Accordingly, the supply of Part 7(2) of the Monitoring Act which, it might be recalled, makes any quantity by which a State Authorities is in default in its funds to any of its native authorities councils a primary cost on the State Authorities’s subsequent allocation from the Federation Account, which is then to be paid direct to the native authorities council involved is unconstitutional, null and void. Actually, the cost, on this case, just isn’t one by the State Authorities to the native authorities councils, as offered by the Structure. The truth that cost below the supply of Part 7(2) is in consequence of a default in cost by State Authorities doesn’t make it any the much less a breach of constitutional requirement.
If the Monitoring Act, an enactment of the Nationwide Meeting, the supreme law-making physique for the nation, could possibly be struck down by the Supreme Courtroom for trenching on the autonomy of State Governments, then, Govt Order 10, which additionally trenches on the autonomy of State Governments, needs to be way more liable to be so struck down, for the reason that Govt Order is a subordinate instrument made by the President as a sole particular person in his capability as Head of the chief arm of the Federal Authorities.
It’s noteworthy in addition to vital that the Fourth Alteration (Act No. 7 of 2018) didn’t amend or alter Part 162(5), (6), (7) and (8) of the Structure, in order to reverse the choice of the Supreme Courtroom within the Monitoring Act case, thus leaving, in undiminished pressure, the choice and the rationale for it acknowledged within the judgment of the Supreme Courtroom.
Thus, by the authority of the choice of the Supreme Courtroom within the Monitoring Act case, Article 6 of Govt Order 10, being manifestly inconsistent with our federal system as established by the Structure, makes the Order null and void. And because it purports to be a “legislation,” the Order comes throughout the compass of Part 1(3) of the Structure which makes null and void some other legislation inconsistent with its provisions – to the extent of the inconsistency. It’s merely superb that, with information of all this, the President nonetheless went forward to make Govt 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 start with, the nexus or relation between the opposite provisions in Part 5(1) and (2), if there may be any nexus in any respect between them, is far-fetched, and never simply discernible. The provisions want, due to this fact, to be got down to facilitate an examination of them to find out whether or not they authorise the making of Govt Order 10.
Part 5(1) Topic to the provisions of this Structure, the chief powers of the Federation-
(a) shall be vested within the President and will, topic as aforesaid and to the provisions of any legislation made by the Nationwide Meeting, be exercised by him both immediately or by means of the Vice-President and Ministers of the Authorities of the Federation or officers within the public service of the Federation; and
- shall prolong to the execution and upkeep of this Structure, all legal guidelines made by the Nationwide Meeting and to all issues with respect to which the Nationwide Meeting has in the meanwhile, energy to make legal guidelines.
- Topic to the provisions of this Structure, the chief powers of a State-
- shall be vested within the Governor of that State and will, topic as aforesaid and to the provisions of any legislation made by a Home of Meeting, be exercised by him both immediately or by means of the Deputy Governor and Commissioners of the Authorities of that State or officers within the public service of the State; and
- shall prolong to the execution and upkeep of this Structure all legal guidelines made by the Home of Meeting of the State and to all issues with respect to which the Home of Meeting has in the meanwhile energy to make legal guidelines.”
The ability to execute and preserve the Structure is, admittedly, a cardinal energy, nevertheless it doesn’t allow the President to situation Govt Order 10 for 2 predominant causes;
first, as a result of the President’s govt energy is counter-weighed by the corresponding provision in Part 5(2) vesting concurrently within the State Governors, the identical energy to execute and preserve this Structure as is vested within the President by Part 5(1). This concurrent vesting of the ability to execute and preserve the Structure is designed to steadiness the ability equation between the Centre and the States; Subsection 5(2) is thus a counter-vailing pressure, because it had been;
second, and extra importantly, as already identified, the ability of the President to execute and preserve the Structure is by the opening phrases of Part 5(1), restricted to the execution and upkeep of the Structure because the provisions of the Structure relate to the affairs, relations, composition, construction and so on of the Federal Authorities, however not as they relate completely to the affairs, relations, composition, construction and so on of State Governments. The autonomy of State Governments below the federal system, flowing from the division of powers, forbids and precludes that.
- THE OVERRIDING IMPORTANCE OF THE AUTONOMY OF STATE GOVERNMENTS VIS-À-VIS THE FINANCIAL AUTONOMY OF THEIR HOUSES OF ASSEMBLY
It’s admitted on all sides that the autonomy of State Governments in a federal system and the monetary autonomy of their Homes of Meeting are each essential, and may each be safeguarded, however the former overrides the latter, and needs to be accorded satisfaction of place within the occasion of contestation between them. Arguably, Nigeria can hardly live on, besides below a federal association actually be-called. Gen Yakubu Gowon (rtd), as then-Head of the Federal Navy Authorities, affirmed this as way back as 1966 when he stated: “the incidents of Could final in Northern Nigeria, following the tendencies to excessive unification through the interval after January 17, level to at least one and just one factor: {That a} nation as large as Nigeria and comprising such variety of tribes and cultures can’t be administered efficiently below a unitarian type of Authorities.” Accordingly, on assumption of workplace after the overthrow of Basic 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 Courtroom in Att-Gen of Lagos State v. Att-Gen of the Federation & Ors (2003) 6 S.C. (Pt 1) 24, the place Uwaifo JSC, delivering the lead judgment for the Courtroom, stated:
“However I don’t have to repeat that Nigeria operates a federal system of presidency. Part 2(2) of the 1999 Structure re-enacts the doctrine of federalism. This ensures the autonomy of every authorities. Not one of the governments is subordinate to the opposite. That is of explicit relevance between the state governments and the Federal Authorities, every being, as stated by Nwabueze, in his e-book, The Presidential Structure of Nigeria, pages 39 – 42, an autonomous entity within the sense of with the ability to train its personal free will within the conduct of its affairs throughout the Structure, free from route by one other authorities. I feel it’s vital that shortly earlier than and for the reason that independence of Nigeria in 1960, all of the Constitutions which have been enacted have taken the sample of federalism” (emphasis provided).
While disagreeing with the bulk resolution on this case, Uwais CJN nonetheless acknowledged the autonomy of State Governments as a precept of Nigeria’s federal system. He stated:
“By part 2(2) of the 1999 Structure, Nigeria shall be a Federation and by the doctrine of federalism, which Nigeria has adopted, the autonomy of every Authorities, which presupposes its separate existence and its independence from the management of the opposite Governments, together with the Federal Authorities, is crucial to federal association. Due to this fact, every authorities exists not as an appendage of one other authorities however as an autonomous entity within the sense of with the ability to train its personal free will within the conduct of its affairs free from route by one other authorities.”
The Supreme Courtroom, in that case, held unconstitutional, null and void, an Act of the Nationwide Meeting, the Nigerian City and Regional Planning Decree 1992 (now Act) for trenching on the autonomy of State Governments.
This passage from the judgment of Uwais CJN was re-echoed by Niki Tobi JSC in his lead judgment for the Supreme Courtroom within the more moderen case of Att-Gen of Abia State & Ors v. Att-Gen of the Federation & Ors delivered on 7 July 2006, the place one other Act of the Nationwide Meeting was declared unconstitutional, null and void for a similar motive that it trenched on the autonomy of State Governments. There are a number of different choices affirming the autonomy of State Governments as a precept of our federal system.
We might be taking part in to the gallery by publicly professing to be defending the monetary autonomy of State Homes of Meeting whereas on the similar time utilizing such safety as a motive for undermining the autonomy of State Governments. The previous needs to be protected alongside the autonomy of State Governments.
It’s stunning that, within the face of Govt Order 10, State Governors seem, for partisan, political causes, to be shying away from taking a agency stand towards such subversion of our federal system as exhibited by the Govt Order. They’ve merely arrange a committee to look into it and make suggestions. One is devastated by the most recent information that they’ve accepted Govt Order 10, i.e. that they’ve accepted a deadly undermining of the autonomy of State Governments as a precept of our federal system. The press too seems to be wavering of their attribute brave boldness.
QUOTE: State Governors seem, for partisan, political causes, to be shying away from taking a agency stand towards such subversion of our federal system
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