The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami has argued the constitutional provision in Section 121(3), guaranteeing financial autonomy for the Judiciary and Legislature at the state level was a non-negotiable right exercisable by both arms of government.
Malami faulted the arguments that queried the constitutionality of the Executive Order 10 issued by President Muhammadu Buhari to further the implementation of the provision of Section 121(3, contending that the presidential initiative was “designed and intended to give enforcement spirit to the autonomy provision.”
He said Governors were not averse to enforcement of the constitutional provision on financial autonomy for state legislature and judiciary but the seeming disagreement was in relation to the modality to be adopted in its application, which was currently being worked out in the series of engagements that are being held.
Malami, who spoke while featuring on Tuesday on a morning programme on the government-owned Nigerian Television Authority (NTA), said: “Generally speaking, the operation, application and enforcement of laws are a process. With particular reward to the Executive Order, you have to into account the antecedence. One, there exists a constitutional amendment, with particular regard to Section121 (3) of the Constitution that initiated the process.
“In addition to the constitutional amendment, we equally have in place, the Executive Order 10, signed by the President. Which, in effect, is designed and intended to give enforcement spirit to the autonomy as contained in Section 121(3).
“Arising therefrom, there were contentions, particularly on the part of the governors as to the application and operation of the provision of Section 121(3) and the Executive Order. And you have, in that respect, an implementation committee, among others. On the side of the implementation committee, there have been series of engagements, which are ongoing. I think, as a process, we are evolving.
“Nobody is contending about the constitutional amendment having been in place. Nobody is equally contending about the need for the Executive Order.
“Nobody is contenting about the fact that there exists the political will on the part of the Executive, in particular, the President, about the implementation of the autonomy of the Judiciary and the Legislature. But then, perhaps, the limited engagements is about the modalities.
“So, against the background of these processes that are unfolding, I think the process is indeed, evolving and we are certainly getting there.
“At the end of the day, the Executive Order has been in place, the legislative processes associated with its implementation are in place, and I think the engagement is a product of such process that will eventually see to the implementation, enforcement and application of the Executive Order.”
On whether the financial autonomy provisions could be successfully implemented at the state level under a federal system of government, Malami insisted that there was no excuse to escape its implementation at the state level, because an example already exists at the federal level.
Last week, a constitutional lawyer and Senior Advocate of Nigeria (SAN), Sebatine Hon, in a letter to the AGF, Chief Justice of Nigeria(CJN), Justice Ibrahim Muhammad and other stakeholders in the nation’s justice sector argued that Executive Order 10 was illegal.
Hon argued that the “Executive Order 10 is also in conflict with the express provisions of Sections 6(1), (3)(5) read together with sections 81(3) and 84(1)(4)(7) of the Constitution. It indeed runs counter to the very section 121(3) as amended, since, as against the wrong notion held by Mr President, neither the original text of that subsection nor its amended version has anything to do with superior courts of records, even though located in the various states and acting as state courts.”
Hon added that under “the Presidential cum Federal Constitution of Nigeria, the states are semi-autonomous, hence the President has no power, direct or implied, to force down orders on the governors or to attempt, as was done in Executive Order 10 to run the states from Abuja or to create some bodies that will run those states (as in the case of the Presidential Implementation Committee created in the said Executive Order 10
“The presidential Order 10 signed by Buhari on May 20, 2020, is unconstitutional, null and void and of no effect, it being in conflict with the express provisions of the 1999 Constitution,” he said.