The Attorneys-General of the 36 states of the federation have filed a suit at the Supreme Court to challenge the legality of the Presidential Executive Order 10 issued last year to shore up the financial independence of state judiciaries and legislatures.
In the suit which challenges the widely accepted norm that states are to fund their courts, the plaintiffs argue that it is the constitutional duty of the federal government to fund the capital and recurrent expenditures of states’ High Courts, as well as their Sharia and Customary Courts of Appeal.
They argued that the Executive Order violated the Nigerian constitution by seeking to compel state governments to fund the recurrent and capital expenditures of state courts, which according to them ought to be that of the federal government.
“It is the plaintiffs’ argument that the Presidential Executive Order No. 00-10 issued by the President of the Federal Republic of Nigeria on 22 May 2020 is unconstitutional as the said Executive Order seeks to compel state governments to fund recurrent and capital expenditures of the State High Courts of Appeal, which form part of the courts whose funding is the prerogative of the federal government in line with the provisions of sections 6, 81(3) and item 21(3) of the Third Schedule to the Constitution of the Federal Republic of Nigeria,” their filing read in part.
The Executive Order empowers the Accountant-General of the Federation to make deductions meant for state judiciaries from the state governments’ allocations and pay them to the National Judicial Council (NJC), which will then remit the deducted funds to the heads of the various state courts.
This, the plaintiffs argue, is against the provisions of sections 6(5), 81(3) and item 21(3) of the Third Schedule of the Nigerian constitution.
According to them, the constitutional provisions, when read together, “clearly impose and create a constitutional duty, responsibility and obligation” on the federal government “to fund both the capital and recurrent expenditure of the courts established by section 6 of the constitution”.
The courts established under section 6 of the constitution are the High Courts, Sharia Courts of Appeal and the Customary Court of Appeal of states, along with the federal courts, including the Supreme Court.
The plaintiffs asked the court to not only declare the Executive Order 10 unconstitutional, but to also order the federal government to “fund the capital and recurrent expenditure” of the state courts.
They also sought another order compelling the federal government to refund to the state governments “all the sums they have so far expended in funding the capital expenditure of the High Courts, Sharia Courts of Appeal and Customary Courts of Appeal”.
The suit, scheduled for hearing at the Supreme Court today (Monday), has the Attorney-General of the Federation, Abubakar Malami, the federal government’s representative, as the sole defendant.
In its counter-affidavit filed in opposition to the suit, the federal government admits it is its responsibility to undertake recurrent expenditure of the courts only to the extent of paying the remuneration, salaries, and allowances of the judges.
Mr Malami opposed the scope of the recurrent and capital expenditures of the state courts, which the state governments claimed should be the federal government’s responsibility.
He noted that although the constitution provided for the establishment of states’ High Courts, Sharia Courts of Appeal and Customary Courts of Appeal “it was the respective state laws which created them that actually set the operations of these courts in motion”.
It is also the state laws, according to the AGF, that confer powers on the courts to make them functional as the states’ courts.
By virtue of this, Mr Malami said “it is no doubt, the duty of the executive arm of government in every state of the federation to fund the recurrent and capital expenditure of the courts.
He also argued that the federal government “could not possibly be held liable to incur any alleged capital and recurrent expenditure” for the various states’ Sharia Courts of Appeal and Customary Courts of Appeal which are at the discretion of state governments to create.
“If a state considers that it, in fact, requires a Customary or Sharia Court of Appeal, the presumption of regularity presupposes that such a state has prepared, evaluated and estimated both the capital and recurrent expenditure that will be necessarily occasioned before committing itself to its establishment and captured same in its annual budget estimates,” he added.
He contended that it would be inequitable for states to demand a refund of alleged expenditures from the federal government.
“That the federal government has since May 1999 been funding recurrent expenditure of state judiciaries as charged by section 84 of the constitution and captured in the annual budget estimates presented to the National Assembly respectively, in the fiscal years.
“That all capital expenditures are to be captured in the estimate included in the appropriation bill of the state Houses of Assembly,” the counter-affidavit read in part.
He also accused the state governments of “unjustified and indefensible rebellion against the Constitution” by continuing to defy constitutional provisions guaranteeing the independence of the state judiciaries.
He added that despite the constitutional provisions and series of court judgments, state governors had continued to wrongly subject the funding of state judiciaries to executive control.
Mr Malami also defended the constitutionality of the Executive Order 10, which he said was issued by the President “in a bid to fulfill his duty of executing and maintaining the constitution.”
The President sought to achieve this, according to Mr Malami, by directing the Accountant-General of the Federation “to do the needful to ensure the implementation of the constitutional provisions on financial autonomy for state judiciaries.”