The current face-off between the Presidency, 36 governors, Judicial Staff Union of Nigeria (JUSUN) and the Parliamentary Staff Association of Nigeria (PASAN) started at the height of the Covid-19 pandemic last year, precisely on Friday, May 22, 2020.
It was actually on that day that President Muhammadu Buhari signed into law Executive Order No. 10 2020, which granted financial autonomy to states’ legislature and the judiciary.
The Executive Order mandated the Accountant-General of the federation to deduct at source, the amounts due to state legislatures and judiciaries from the monthly allocation to each state, especially for states that refuse to grant such autonomy. The Presidency, JUSUN, PASAN and other Nigerians perceived the development as a way to further encourage separation of powers among the three arms of government at the state level. But, it was not so with the governors. They saw it as a breach and attempt to encroach on their powers.
The Attorney General of the Federation and Minister of Justice, Abubakar Malami, shed more light on the Executive Order. He said it compelled the 36 states to include the allocations of both the legislature and the judiciary in the first-line charge of their budgets.
Malami explained that implementation of Executive Order 10 would strengthen both the legislative and judicial arms of government at the states, make them more independent and accountable in line with democratic tenets as enshrined in the 1999 Constitution.
The governors not only kicked, but those aggrieved among them also threatened to challenge the Executive Order 10 in court. The state chief executives expressed dismay that Mr. President did not carry them along before signing the order. They further contended that the action came so soon after financial autonomy was granted to local government councils. To the governors, Executive Order No. 10 was a breach of pending dialogue between them and the Presidency on how to go about legislative and judicial autonomy at the state level.
However, signing Executive Order No. 10 was sequel to the dialogue, which began in 2019 between President Buhari, through his then Chief of Staff, Mallam Abba Kyari and the governors on the autonomy models preparatory to the next constitution review. Midway into the negotiation, Kyari died.
SOME of the governors’ grouses over the Executive Order was its ‘hasty’ issuance, which according to them would derail the collaboration between the Nigeria Governors’ Forum (NGF)-led by Ekiti State governor, Dr. Kayode Fayemi and the Conference of Speakers of State Houses of Assembly. Both bodies had earlier set up a committee to work out modalities for autonomy in early 2020 just before the Covid-19 pandemic crisis set in.
Governors from opposition Peoples Democratic Party (PDP), specifically accused President Buhari of trying to use the Executive Order 10 to subvert the Constitution with a view to caging them (governors).
The governors also faulted the Order, claiming only an amendment to the 1999 Constitution could have guaranteed autonomy for state legislatures and judiciary. They claimed that the Executive Order does not have legislative force and therefore constitutes an encroachment on relevant laws stipulating the disbursement of funds from the Federation Account. One of the governors then described the Executive Order as being more of a military decree.
Despite the governors’ fury, the Presidency stood its ground. President Buhari’s Senior Special Assistant on Niger Delta Affairs; Senator Ita Enang confronted the governors, stressing that Executive Order 10 is meant to give effect to the provisions of the 1999 Constitution. Enang added that it also outlines the procedure and process for the implementation of Constitutional provisions for the autonomy of state legislatures and judiciaries, which was passed by the 8th National Assembly and signed into law by the president.
Enang maintained that signing Executive Order 10 was even more necessary in managing the independence of each arm of government at a time of Coronavirus pandemic.
While the quarrel between the Presidency and state governors persisted, members of JUSUN and PASAN, who were anticipating the implementation of the Executive Order, were restrained because of COVID-19 protocols, particularly the lockdown imposed by governments across the world to reduce the virus’ spread.
A member of PASAN told The Guardian that the nationwide protest embarked upon by PASAN and JUSUN this year would have taken off last year if not for the lockdown and the subsequent #EndSARS protests.
Road to Executive Order 10
IN December 2018, President Buhari set up a Presidential Implementation Committee on autonomy of state legislatures and judiciaries, following series of complaints on how the governors were muzzling both arms of government by depriving them of financial autonomy.
The committee tasked to drive the actualisation of the autonomy granted the legislature and judiciary at the state level in the 1999 Constitution, was chaired by Malami, with Senator Ita Enang as secretary.
Other members of the Committee include, the Chief Judge of Kogi State, the late Nasir Ajanah and his Bayelsa State counterpart, Kate Abiri as representatives of state judiciary, the Grand Khadi of Gombe State Sharia Court of Appeal, Khadi Abdullahi Maikano and the Acting President of the Federal Capital Territory (FCT) Customary Court of Appeal, Abbazih Musa Sadeeq.
Also, represented on the committee were Speakers of State Houses of Assembly, the President of the Nigerian Bar Association, JUSUN and the PASAN.
Buhari, while inaugurating the committee, said it was to ensure that the independence of the judiciary and legislature at the state level is maintained. The president insisted on his administration’s commitment to strengthening the country’s democracy by ensuring separation of powers among the three arms of government, even at the state levels.
PASAN, JUSUN protests
EXACTLY a year after the states refused to implement Executive Order No. 10, on March 24 2021, PASAN declared nationwide strike over the non-implementation of financial autonomy for state legislatures as contained in the Executive Order.
To press home their demand, legislative workers across the country barricaded entrances to the State Assemblies, just as they marched to the State Houses to express their displeasure to governors of their states.
In Lagos State, Chairman of the state Assembly chapter of PASAN, Taofiq Adele, regretted that the Executive Order issued by President Buhari in May 2020 granting them financial independence was yet to be implemented by a majority of the 36 state governors.
He rationalised the strike, saying it followed the governors’ inability to carry out the order, 10 months after it was proclaimed, recalling how the bedrock of parliamentary autonomy hinges on financial independence.
Autonomy in this context, he stated, is simply defined as non-dependence and non-subordination of parliaments in relation to the executive. The action was simultaneous across the country.
REACTING to PASAN’s protest, the 36 Speakers of State Assemblies during their first quarterly meeting in Bauchi, said they were ready to activate the attainment of financial autonomy. However, their sincerity on the issue was in doubt, since a majority of the Speakers were more or less stooges of the governors.
In a communiqué after the conference, the Speakers said they set up a Constitutional Review Committee, which terms of reference include, articulating and submission of the inputs of the Conference of Speakers of State Legislatures of Nigeria in the ongoing review of the 1999 Constitution.
As the dust of PASAN’s protest was settling, JUSUN kicked off a nationwide peaceful protest on April 19 to further press home its demand for financial autonomy for the judiciary.
The two bodies, with the backing of the Nigeria Bar Association (NBA) have since begun a dialogue with the various governors on how to implement Executive Order 10 and achieve financial autonomy.
EVER since the battle for fresh air by JUSUN and PASAN broke out, Nigerians have been reacting. For instance, a Professor of Political Science at Bayero University, Kano, Kamilu Sani Fagge, said the governors could not be totally blamed, stressing that available indices have shown that many state legislators prefer being subservient to the executive than to reclaim their constitutional rights due to greed.
Professor Fagge said: “The agitation was right, especially given that we are now operating a presidential system of government, and one of the fundamental aspects of federalism is the independence of the three arms of government, which is expected to ensure effective checks and balances in governance.
“By implication, the legislators are now at the mercy of another independent body, thereby truncating their rights. By Constitution, the legislature are entrusted with responsibilities including making laws, approving the expenses and appointment of the executives, oversight function, which is very important and again, they carry out public hearing on public issues.
“So, with all these tasks at hand, lack of power to control their own finances will impede their functions. Meaning, the governors will now determine what to and what not to do.”
The don attributed the weakness of the legislature and judiciary to ignorance and incompetence. According to him: “The reason is partly ignorance and greed. Some of these legislators don’t even know why they were elected; they behave like errand boys to the executives. Instead of measuring up and claiming their rightful position as co-pilot, they ignorantly prefer to remain subservient, thinking they can always demand and get anything they desire.”
Fagge added that the legislative arm has its responsibility to exclusively check the excess of the executive. “Again, the caliber of the legislator is another big question. Most of them are now errand boys of the governors with no dignity. They are more concerned about politics to enrich themselves and not service, even when the Constitution mandated it and the president signed the Executive Order, they seem to be more concerned with their positions in the House,” Fagge said.
To the immediate past Deputy Speaker Ondo State Assembly, Ogundeji Iroju, governors are the main obstacles to financial autonomy for legislatures, since according to him; they all undermine efforts at granting state Assemblies financial freedom.
Iroju, who is a two-term lawmaker representing Odigbo Constituency I, said the 1999 Constitution, as amended, granted state assemblies financial autonomy.
His words: “But as at now, that amendment has not been effectively carried out in any of the state Assemblies in Nigeria. The financial autonomy, as amended in the Constitution, affects the state legislature and equally the state judiciary.
“If actually we want the independence of the judiciary and for the arms of government to work perfectly in line with the principles of Separation of Powers, financial autonomy has to be effectively carried out.
From Enugu State
But, a former Speaker of Enugu State House of Assembly, Chief Eugene Odoh, stressed that implementing the law in various states would enhance the work of the legislature.
Odoh, a two term Speaker, noted that the law, which had been assented to by President Buhari was being frustrated by actions of state governors, in a bid to control the state Assembly.
He noted that some lawmakers would not agitate for its implementation, so as not to offend their governors, adding, “they will prefer to beg him to fund their activities to be seen as loyal members. Don’t also forget that majority of them have no bill to their name except the ones from the executive.”
“The only way State Assemblies can function properly,” Odoh spoke further, “is when you have financial autonomy. Beyond that, it just has to be a state Assembly with little guts to do what they want for the state. During my tenure, we did not look at autonomy. We had powers to do what we wanted and that was as a result of our own personal guts.
“So we were able to function to that extent and that was why we were able to remand a Commissioner to Prison and said no to what we didn’t like, reject bills and what have you. But then, not all State Assemblies can do that because some people see themselves as a parastatal under the government house. Some are looking for second term, some third.”
On what the governors seem to fear about autonomy, Odoh maintained that what the law is saying is not even detrimental to any governor.
He stated: “What the law is saying is that the executive prepares the budget and the little thing you agreed you will allocate to the House of Assembly, can they access it the way it is? That is what autonomy is talking about. It is not as if anybody is pointing a gun at any governor or putting their hand into the state coffer.
“Yet it is very difficult. The same thing goes with that of the local government. Because of the incidences of the joint account, what the governors do is to appoint someone to superintend the joint account and the money comes into the joint account through whom, they now direct on how the money will be spent. That is why when you go to most local governments in the country, they virtually do nothing because they collect the money from the joint account thing, the governor will decide what to give you.
“The most fraudulent part of it is that once it enters into the account of the local government they bring it cash to the governors. It is happening across the nation, not just one state and it will be very difficult for any governor to deny that .
“In the southeast, there is hardly any local government that collects less than N160million monthly. But, ask yourself, if my local government collects this amount and the wage bill is about N40million, what happens to the rest of the money? It is so pathetic, but not strange. Everybody knows. Nobody has taken an action against it.
“The autonomy is well deserved for the legislature, but the governors have stagnated its progress.” OYO State House of Assembly said the kind of financial autonomy it wants is one that is practicable. The Deputy Speaker, Mohamed Fadeyi who spoke with The Guardian said each state has its peculiarity; hence Oyo State would not copy others.
Fadeyi said: “I don’t think state legislatures don’t want financial autonomy. Of course, we want financial autonomy, what I can assure is that the kind of financial autonomy that will be applicable to states like Lagos, Zamfara, may be slightly different from that of Oyo. And that of Oyo may be different from Zamfara.
“We want true autonomy in Oyo that will be practicable. Whether we like it or not, there are so many things attached to it. It has to be the one that is practicable, not the one on paper. That is the one we are looking for in the Oyo State legislature.”
SPEAKER of Ekiti State Assembly, Mr. Funminiyi Afunye said the matter of financial autonomy was being resolved by Speakers of the 36 States, under the auspices of the Conference of Speakers of State Houses of Assembly.
Afunye, who stated this in a telephone interview with The Guardian, said the speakers were already engaging the necessary stakeholders in the implementation of the autonomy.
“There is no need to engage in any force. Since the body of Speakers is handling it, it shows that they are not lukewarm about it. Ekiti cannot take a position different from what is being jointly done; it’s a joint position because it is not peculiar to a state.
“The agitation is general in nature and not for a particular state and that is why the Speakers are holding meetings to see how best to handle it.”
“The Conference of Speakers and other stakeholders have been having engagement on this matter and I can assure you that it is going to be resolved,” he said.
ON his part, Saheed Adekeye Popoola, who represents Balogun/Ojomu Constituency of Offa, Offa Local Government Area (LGA) of Kwara State blamed governors for being responsible for the lack of financial autonomy of the legislative arm at the state level.
He blamed state governors for using the non-implementation of the Executive Order to whittle the powers of the arm of the state arms government and make it an extension of the executive.
In his contribution, a legal practitioner, Mr. Kayode Ajulo, said: “As a concerned member of the Bar, a labour leader and an advocate for the enthronement of rule of law and justice, I am compelled to pensively and dispassionately analyse the issues at hand and lend my two cent, while admonishing JUSUN to cease fire.
“As a prefatory note, there is no gainsaying that the cause of members of JUSUN is not causeless as the same is an echo of the extant provisions of the Constitution. It must be noted that the benchmark for the assessment of any democratic government is the independence of its judiciary.
“This is because democracy is built on the twin doctrines of separation of powers and the rule of law. This is why the Constitution clearly delineates the powers of each of the three arms governments and also provides instances where they work together. Anything short of these instances is tantamount to rule of arbitrariness, which is frowned upon by all democracies in the world.
“It is interesting to note that the provisions of the Constitution are clear to the extent that the Judiciary both at the Federal and State Level shall be independent. A careful perusal of Section 81 and 121 of the Constitution will reveal that the burden of the welfare and maintenance of judges is placed on the National Judicial Council and not on the governors.”
He laid emphasis on Section 121(3) of the 1999 Constitution, which provides that, “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.”
“It is therefore patent that the refusal of state governors to comply with the extant provisions amounts to a total infraction of the provisions of the Constitution.
“Without prejudice to the right of agitation of members of JUSUN as clearly enunciated above, it must be noted that the importance of a functional judiciary at all times cannot be overstated and even more in these times to maintain law and order in a drastically burdened and changing society as ours.
“While the issue at hand is not res integra, the Leadership of JUSUN should take a clue from the incessant strike action embarked upon by ASUU, including other Trade Unions in Nigeria and its consequent implications. The point I am painstakingly driving home is that, strike action is not the ultimate panacea to resolve disputes, each case has to be decided based on the circumstances surrounding it and parties involved,” Ajulo contended.
He cautioned JUSUN leaders to look inward and consider a more beneficial approach to ensure that their demands are carried out “by these erring governors” and not allow the same to inimically affect the fundamental rights of the citizens and the confidence reposed in the judiciary by members of the society.