As­sess­ing the le­gal­ity of ex­ec­u­tive or­ders

A key el­e­ment of an ex­ec­u­tive or­der is that it car­ries the force of law and herein also lies the chal­lenge to its con­sti­tu­tion­al­ity.

Financial Nigeria Magazine - - Contents - A Fi­nan­cial Nige­ria colum­nist, Fun­mi­layo Odude is a La­gos-based le­gal prac­ti­tioner, and a pub­lic af­fairs an­a­lyst.

Pres­i­dent Muham­madu Buhari’s Ex­ec­u­tive Or­der No 6 of 2018, which seeks to pre­serve as­sets con­nected with per­sons who are ei­ther con­nected with or fac­ing trial for cor­rup­tion and re­lated of­fences – and the travel ban said to be an ex­ten­sion of the ex­ec­u­tive or­der – have raised much furor among le­gal schol­ars and prac­ti­tion­ers, po­lit­i­cal sci­en­tists, civil so­ci­eties and un­sur­pris­ingly mem­bers of the op­po­si­tion par­ties. Some have ques­tioned the le­gal­ity of not just this par­tic­u­lar or­der but the is­suance of ex­ec­u­tive or­ders in a pres­i­den­tial sys­tem of gov­ern­ment like ours.

It must first of all be stated that the fact that the United States of Amer­ica ac­cepts the con­cept of ex­ec­u­tive or­ders is­sued by the Pres­i­dent is not a sound rea­son to al­lude to its con­sti­tu­tion­al­ity in Nige­ria. Even though both coun­tries run pres­i­den­tial sys­tem of gov­ern­ment, our con­sti­tu­tional frame­work is dif­fer­ent. There­fore, re­course must al­ways be had to our Con­sti­tu­tion (the grund­norm) to de­ter­mine the va­lid­ity of any ac­tion.

What is an ex­ec­u­tive or­der? Ex­ec­u­tive or­ders are not pro­vided for ex­pressly by any law. There is, there­fore, no statu­tory def­i­ni­tion for it. The Black’s Law Dic­tio­nary (Sev­enth Edi­tion) de­fines an ex­ec­u­tive or­der as “an or­der is­sued by or on be­half of the Pres­i­dent, usu. in­tended to di­rect or

in­struct the ac­tions of ex­ec­u­tive agen­cies or gov­ern­ment of­fi­cials, or to set poli­cies for the ex­ec­u­tive branch to fol­low.”

A more ro­bust def­i­ni­tion was given by Eli­jah Oluwa­toyin Oke­bukola and Ab­dulka­rim A. Kana, both of the Fac­ulty of Law, Nasarawa State Univer­sity, Keffi, in their pa­per, ti­tled “Ex­ec­u­tive Or­ders in Nige­ria as valid leg­isla­tive in­stru­ments and ad­min­is­tra­tive tools,” as pub­lished on the African Jour­nals On­line web­site (www.ajol.info). The au­thors de­fined an ex­ec­u­tive or­der as “a command di­rectly given by the pres­i­dent to an ex­ec­u­tive agency, class of per­sons or body un­der the ex­ec­u­tive arm of gov­ern­ment. Such a command is in fur­ther­ance of gov­ern­ment pol­icy or Act of the leg­is­la­ture. The ex­ec­u­tive or­der may re­quire the im­ple­men­ta­tion of an ac­tion, set out pa­ram­e­ters for car­ry­ing out spe­cific du­ties, de­fine the scope of ex­ist­ing leg­is­la­tion or be a sub­sidiary in­stru­ment within the con­tem­pla­tion of Sec­tion 37 of the In­ter­pre­ta­tion Act.”

A key el­e­ment of an ex­ec­u­tive or­der is that it car­ries the force of law and herein also lies the chal­lenge to its con­sti­tu­tion­al­ity. Many have posited that only the leg­is­la­ture has the power to make laws and a Pres­i­dent is, there­fore, en­ter­ing into the arena of law­mak­ing if he or she is al­lowed to make or­ders that have the force of law.

Let’s take a holis­tic look at the Con­sti­tu­tion to de­ter­mine this is­sue. It is not in doubt that the Nige­rian Con­sti­tu­tion clearly de­mar­cates pow­ers among three arms of gov­ern­ment – the ex­ec­u­tive, the leg­is­la­ture and the ju­di­ciary. This sep­a­ra­tion of pow­ers is to pre­vent abuse and tyranny by one in­di­vid­ual or one arm of gov­ern­ment. The first thing to point out is that while leg­isla­tive and ju­di­cial pow­ers are vested in in­sti­tu­tions, ex­ec­u­tive pow­ers are vested in the pres­i­dent and “may be ex­er­cised by him di­rectly or through the vice-pres­i­dent and min­is­ters of the Gov­ern­ment of the Fed­er­a­tion or of­fi­cers in the pub­lic ser­vice of the Fed­er­a­tion.” (Sec­tion 5 (1)(a) of the Con­sti­tu­tion).

The sec­ond thing wor­thy of note is that the Con­sti­tu­tion clearly states the scope and pur­pose of this ex­ec­u­tive power. It is for “the ex­e­cu­tion and main­te­nance of the Con­sti­tu­tion, all laws made by the Na­tional Assem­bly and to all mat­ters with re­spect to which the Na­tional Assem­bly has, for the time be­ing power to make laws.” (Sec­tion 5 (1)(b) of the Con­sti­tu­tion).

How does the Pres­i­dent prac­ti­cally ex­er­cise this power? The leg­is­la­ture ex­er­cises its pow­ers by bills; the ju­di­ciary by judg­ments and or­ders. So, what about the Pres­i­dent? How does he or she ex­er­cise the ex­ec­u­tive pow­ers vested on him or her by the Con­sti­tu­tion? Ex­ec­u­tive or­ders, be­ing by their na­ture di­rec­tions to per­sons un­der the ex­ec­u­tive arm of gov­ern­ment, are tools by which the Pres­i­dent ex­er­cises the ex­ec­u­tive pow­ers vested in him or her by the Con­sti­tu­tion. I do agree with Sam Amadi, for­mer Ex­ec­u­tive Chair­man of the Na­tional Elec­tric­ity Reg­u­la­tory Com­mis­sion (NERC) that “pres­i­dents ex­er­cise over­sight over ad­min­is­tra­tive agen­cies by use of ex­ec­u­tive or­ders.”

It is not com­pletely strange to our ju­rispru­dence that the Pres­i­dent ‘makes laws.’ The most notable ex­am­ple is in the Con­sti­tu­tion it­self. Sec­tion 315 (2) of the Con­sti­tu­tion em­pow­ers the Pres­i­dent or the Gov­er­nor of a State, as the case may be, to at any time and by or­der make such mod­i­fi­ca­tions in the text of any ex­ist­ing law as the Pres­i­dent or Gov­er­nor con­sid­ers nec­es­sary or ex­pe­di­ent to bring that law into con­form­ity with the pro­vi­sions of the Con­sti­tu­tion.

The Supreme Court had to in­ter­pret this pro­vi­sion in 2003 when the At­tor­ney Gen­er­als of all the 36 states of Nige­ria, on be­half of their re­spec­tive States, brought an ac­tion against the At­tor­ney Gen­eral of the Fed­er­a­tion, who rep­re­sented the Fed­eral Gov­ern­ment. In the suit, they chal­lenged the Statu­tory In­stru­ment No. 9 of 2002 is­sued by then-Pres­i­dent Oluse­gun Obasanjo. The in­stru­ment mod­i­fied cer­tain pro­vi­sions of the Al­lo­ca­tion of Rev­enue (Fed­er­a­tion Ac­count, etc) De­cree (No 106) of 1992, in­clud­ing the shar­ing for­mula.

Up­hold­ing the Pres­i­dent’s power to mod­ify the law as con­sti­tu­tional, the Supreme Court held that the pow­ers given un­der Sec­tion 315 (2) of the Con­sti­tu­tion “is not an abuse of the prin­ci­ple of doc­trine of sep­a­ra­tion of pow­ers” but rather “it is es­sen­tial to giv­ing mean­ing to an ex­ist­ing

In the spirit of checks and bal­ances and for the pur­poses of trans­parency and ac­count­abil­ity... the leg­is­la­ture should con­sider the en­act­ment of an Act en­abling and re­quir­ing the pe­ri­odic col­lec­tion and pub­li­ca­tion of all ex­ec­u­tive or­ders.

law so that the Con­sti­tu­tion it­self is not abused.”

Sec­tion 33 of the Firearms Act em­pow­ers the Pres­i­dent to, af­ter con­sul­ta­tion with the Na­tional Coun­cil of Min­is­ters, make reg­u­la­tions cov­er­ing a wide range of is­sues re­lat­ing to firearms. Sim­i­larly, Sec­tion 134 (2) of the Cus­toms and Ex­cise Man­age­ment Act em­pow­ers the Pres­i­dent to, by or­der, amend the Sec­ond Sched­ule to the Act (Form or war­rant of dis­tress). Sec­tion 5(2) of the In­ter­na­tional Fi­nan­cial Or­gan­i­sa­tions Act also man­dates the Pres­i­dent to, by or­der, make such pro­vi­sions as are nec­es­sary for car­ry­ing into ef­fect any of the pro­vi­sions of the agree­ments re­lat­ing to the In­ter­na­tional Mone­tary Fund, the In­ter­na­tional Bank for Re­con­struc­tion and De­vel­op­ment, the In­ter­na­tional Fi­nance Cor­po­ra­tion and the In­ter­na­tional De­vel­op­ment As­so­ci­a­tion. These are some ex­am­ples of statu­tory pro­vi­sions em­pow­er­ing the Pres­i­dent to make or­ders akin to laws. It is not, there­fore, a com­pletely strange con­cept in our ju­rispru­dence.

I be­lieve the Pres­i­dent has the pow­ers to is­sue ex­ec­u­tive or­ders to the ex­ec­u­tive branch of gov­ern­ment. These pow­ers are sep­a­rate from those ex­pressly con­ferred on the Pres­i­dent by the Con­sti­tu­tion and other statutes as stated above. Part of the Eco­nomic Re­cov­ery and Growth Plan’s (ERGP) suc­cess is di­rectly at­trib­ut­able to the is­suance of ex­ec­u­tive or­ders. Poli­cies of gov­ern­ment were con­verted into ac­tion points, which were, by ex­ec­u­tive or­ders, di­rected to min­istries, de­part­ments and agen­cies (MDAs) of gov­ern­ment for com­pli­ance.

Be­fore the trou­ble­some Ex­ec­u­tive Or­der 6 signed by Pres­i­dent Buhari, the pre­vi­ous three that then-Act­ing Pres­i­dent Yemi Os­in­bajo is­sued last year aimed at cre­at­ing more trans­parency and ef­fi­ciency in MDAs. They also pro­moted Nige­rian con­tent in pub­lic pro­cure­ment of goods and ser­vices and sought to en­sure timely sub­mis­sion of an­nual bud­getary es­ti­mates by agen­cies of gov­ern­ment, in­clud­ing com­pa­nies owned by the Fed­eral Gov­ern­ment.

As long as the or­ders do not di­rect the per­for­mance of any act, which vi­o­lates the Con­sti­tu­tion or any law of the Na­tional Assem­bly, I do not be­lieve there would be any grounds to chal­lenge them. It is the Pres­i­dent’s con­sti­tu­tional duty to en­sure the ex­e­cu­tion and main­te­nance of the Con­sti­tu­tion and the laws of the Na­tional Assem­bly. Is­suance of ex­ec­u­tive or­ders to the ex­ec­u­tive arm is one of the prac­ti­cal ways the Pres­i­dent can get things done.

There­fore, what is the ruckus about Ex­ec­u­tive Or­der 6? Some have said it is an at­tempt to in­struct or command the ju­di­ciary. This is in­cor­rect as the or­der is di­rected to the At­tor­ney Gen­eral of the Fed­er­a­tion (AGF) and gov­ern­ment’s en­force­ment agen­cies, who are un­der the Pres­i­dent as Com­man­der-in-Chief. Some have called it a breach of fun­da­men­tal rights. One must pay close at­ten­tion to the draft­ing of the or­der. The or­der does not cre­ate new pow­ers for the en­force­ment agen­cies or the AGF. It merely di­rects them to ex­er­cise the pow­ers un­der the law in a cer­tain way.

The Eco­nomic and Fi­nan­cial Crimes (Es­tab­lish­ment) Act, for in­stance, em­pow­ers the Eco­nomic and Fi­nan­cial Crimes Com­mis­sion (EFCC) to ap­ply to the court for in­terim or­der of for­fei­ture in re­spect of prop­er­ties and as­sets be­lieved to be pro­ceeds of crime. The ex­ec­u­tive or­der seeks to pro­tect all as­sets tied or linked with cor­rup­tion, or as­sets be­long­ing to any per­son in­dicted for cor­rup­tion from dis­si­pa­tion “by em­ploy­ing all avail­able law­ful or statu­tory means, in­clud­ing seek­ing the ap­pro­pri­ate or­der(s) of court where nec­es­sary.”

Also, the or­der di­rects the AGF to “em­ploy all avail­able law­ful or statu­tory means, in­clud­ing seek­ing the ap­pro­pri­ate or­der(s) of court where nec­es­sary, and en­sure that the as­sets are not trans­ferred, with­drawn or dealt with in any way un­til the fi­nal de­ter­mi­na­tion by a court of com­pe­tent ju­ris­dic­tion of any cor­rup­tion re­lated mat­ter against such a per­son.”

None of the in­struc­tions con­tained in the or­der are to be car­ried out in a vac­uum but by “avail­able law­ful or statu­tory means.” From the fore­go­ing, does this not sug­gest the Pres­i­dent is seek­ing to ex­e­cute the pro­vi­sions of the Con­sti­tu­tion and laws of the coun­try?

I do note that the use of ex­ec­u­tive or­ders can eas­ily be abused. In the spirit of checks and bal­ances and for the pur­poses of trans­parency and ac­count­abil­ity, I adopt the rec­om­men­da­tion of the schol­ars, Oke­bukola and Kana, who sug­gest that the leg­is­la­ture should con­sider the en­act­ment of an Act en­abling and re­quir­ing the pe­ri­odic col­lec­tion and pub­li­ca­tion of all ex­ec­u­tive or­ders.

Nige­rian Pres­i­dent Muham­madu Buhari

Nige­rian Vice Pres­i­dent Yemi Os­in­bajo

A view of the Na­tional Assem­bly Com­plex, Abuja

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