- Buhari’s Executive Order 10 unconstitutional, he Says
By Alex Enumah
A constitutional lawyer, Chief Sebastine Hon (SAN), has insisted that the realization of financial independence of the Judiciary lies solely with the federal government.
Hon argued that the ongoing strike by members the Judiciary Staff Union of Nigeria (JUSUN), which has entered its second month, could have been averted if the constitution had been properly interpreted by parties.
In a letter to the Chief Justice of Nigeria (CJN) titled, “The JUSUN Strike Action and The Correct Position of The Constitution on Financial Independence For The Judiciary in Nigeria”, the constitutional lawyer said that all courts of superior record are creation of the federation and as such, the responsibility of the federal government.
Other recipients of the letter sighted by THISDAY on Monday, included the Attorney General of the Federation (AGF) and Minister of Justice, Minister of Labour and Employment, President, Nigerian Bar Association(NBA) and the National President of JUSUN.
He said: “The Constitution of the Federal Republic of Nigeria, 1999, as amended, has made far-reaching provisions guaranteeing, in express and unequivocal terms financial independence for both superior and inferior courts in Nigeria.”
According to him, section 6 of the 1999 Constitution listed the Supreme Court, Court of Appeal, Federal High Court, National Industrial Court, High Court of the Federal Capital Territory (FCT), High Court of a state, Sharia Court of Appeal, FCT, Sharia Court of Appeal of a state, Customary Court of Appeal of FCT and Customary Court of Appeal of a state as courts of superior record.
Hon stated that be it the Federal High Court or High Court of a state, they are all creation of the federation and therefore should derive funds from the Consolidated Revenue Fund (CRF).
“Section 318(1) defines Federation as the Federal Republic of Nigeria. Clearly, therefore, the framers of the constitution wanted those courts that are wrongly labelled state courts to be courts of the Federal Republic of Nigeria — meaning they are federal courts, which are, however, established for each state, just for geographical and other administrative reasons,” he said.
“Since these are also ‘Federal’ courts established to function within states of the federation, therefore, they are supposed to also be part of the expenditure content of Mr President’s annual budgetary estimates submitted to the National Assembly,” he added.
He faulted the issuance of Executive Order 10 by President Muhammadu Buhari, which he noted prescribed other budgetary methods for states not contemplated by the constitution.
“The said 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,” he stated.
Hon in addition argued that under the federal system of government practised by 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”.
He therefore asked the National Judicial Council (NJC) to as a matter of urgency assume responsibility for collecting, collating and fine-tuning budgetary estimates in respect of superior courts of record from the various Heads of the courts for onward delivery to the Budget Office of the Federation to be included in the annual budget of the federation.
The senior lawyer also asked the NJC to disburse funds meant for the superior courts of record directly to them once the funds are made available to it.
According to him, “Under the present constitutional scheme of things, the state governments are only to take care of the budgetary needs of magistrate and other courts lower to the superior courts on the judicial ladder of the state.
“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.”