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Supreme court declares Executive Order 10 unconstitutional

The Supreme Court has declared as unlawful and unconstitutional the Executive Order 10 (EO10) issued by President Muhammadu Buhari on the funding of State Judiciary and Legislature.

In a split decision on Friday, majority of the Court’s seven-member panel agreed that the President exceeded his constitutional powers in issuing the EO10.

Six out of the seven members of the panel proceeded to void and set aside the EO10.

The majority decision adopted the expert opinions supplied by Musibau Adetunbi (SAN) and Mahmud Magaji (SAN), two out of the five amici curiae invited by the court to advise it on the case.

The judgment, which was on the suit marked: SC/CV/655/2020 filed by the 36 State Governments against the Federal Government, decided two key issues: the constitutionality of the EO10 and the funding of superior courts in states by the Fed. Govt.

In declaring the EO10 unconstitutional, Justice Musa Dattijo Muhammad, in the lead majority judgment, said: “This country is still a federation and the 1999 Constitution it operates is a federal one.

“The Constitution provides a clear delineation of powers between the state and the Federal Government.

“The President has overstepped the limit of his constitutional powers by issuing the Executive Order 10. The country is run on the basis of the rule of law,” Justice Mohammed said in the lead majority judgment.o

Five out of the seven Justices on the panel agreed with Justice Muhammad on this issue. They are: Justices Centus Nweze, Ejembi Eko, Helen Ogunwumiju, Emmanuel Agim and Adamu Jauro.

Only Justice Uwani Abba-Aji dissented on this issue and held that EO10 was lawful and constitutional.

She said: “We are not unaware of the hanky-panky and subterfuge played by state governors against the independence and financial autonomy of state Judiciary.

“It is a pitiable eyesore what judicial officers and staff go through financially at the hands of state executives, who often flout constitutional and court orders to their whims and caprices.

“Thus, the presidential Executive Order 10 is meant to facilitate the implementation of the constitutional provisions…the Executive Order is to aid the states legislature and judiciary in curing the constitutional wrong of their financial autonomy, which the state have always denied. This is not unconstitutional,” Abba-Aji said.

On the second issue, four members of the panel rejected the plaintiffs’ contention that it was the responsibility of the Fed Govt to fund both the capital and recurrent expenditures of the superior courts created for states under Section 6 of the Constitution.

On this issue, Justices Nweze, Ogunwumiju and Abba-Aji agreed with Justice Muhammad’s lead majority judgment.

Three members of the panel: Justices Ejembi Eko, Emmanuel Agim and Adamu Jaro gave a dissenting opinion, to the effect that it was the Fed Govt’s responsibility to fund both the capital and recurrent expenditures of all courts created under Section 6 of the Constitution.

Justice Eko, who authored the lead minority decision, said the money standing to the credit of the Judiciary on the Federation Account and Consolidated Revenue Fund Account should be applied to fund both the capital and recurrent expenditures of courts created under Section 6 of the Constitution.

All the seven members however rejected the request by the plaintiffs that the Federal Government be compelled to refund to them all that they have spent on the said courts in their states.

The court held that the states were not entitled to be refunded all they have spent before now to maintain those courts, which they put at N66billion.

The apex court said the plaintiffs failed to prove their entitlement to the refund they claimed.

Justices Muhammad and Eko were absent at Friday’s proceedings. Justice Muhammad’s judgment was read by Justice Nweze, while Justice Agim read the judgment by Justice Eko.

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