THE Federal Government yesterday lost its bid to compel the 36 states to ensure financial independence for the judiciary and the legislative arm.

The Supreme Court, in a landmark pronouncement, declared as unlawful and unconstitutional the Executive Order 10 (EO10) issued by President Muhammadu Buhari to force the states to comply with the constitutional provisions on funding of state judiciary and legislature.

The apex court, in a 6-1 split decision, declared that the President exceeded his constitutional powers in issuing the Eo10.

The order was consequently set aside.

Some lawyers are divided on the court’s verdict.

Buhari had signed the order on May 22, 2020 with a view to encouraging the states to release appropriated funds to the two arms of government.

Among other provisions, the voided order empowered the Accountant General of the Federation to deduct from the allocations due to a state from the Federation Account, any sums appropriated for the legislature or judiciary which the state fails to release to the two organs.

Such deductions would then be paid directly to the affected arm of government.

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

The judgment, which was in respect of suit 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 Federal Government.

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.”

Justices Centus Nweze, Ejembi Eko, Helen Ogunwumiju, Emmanuel Agim and Adamu Jauro aligned with his view.

But Justice Uwani Abba-Aji, in her dissenting ruling on the issue, held that EO10 was lawful and constitutional.

Her words: “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.”

On the second issue, four members of the panel rejected the plaintiffs’ contention that it was the responsibility of the Federal Government 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, saying it was the Federal Government’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.

However, all seven Justices unanimously 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.