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Assessing the legality of executive orders 13 Nov 2018

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 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.