Jul 25, 2020

The Need To Understand The Constitutional, Political And Policy Contexts Of Executive Powers



Man’s increasing thirst for power since the dawn of time is the premise for which Separation of Powers and a system of Checks and Balances is ingrained in the roots of democratic governance. If power corrupts, then absolute power corrupts absolutely. According to Charles de Montesquieu, “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty”. The essence of Democracy, the Rule of Law and the security of Human rights is to give man a good life and liberty against arbitrary or unrestrained exercise of power. If powers are not definitely shared, the path to tyranny is not far-off.

The concept of separation of powers stands frontward in the interaction of the three branches of government; the executive, the legislature, and the judiciary. The Nigerian constitution captures the doctrine of separation of powers to prevent one arm of government, specifically the executive, from becoming excessively powerful, enough to destroy the system. Under the 1999 Constitution of the Federal Republic of Nigeria, federal legislative power is vested in the National Assembly, while executive power is vested in the President and the judiciary with the power to interpret laws, by virtue of Sections 4, 5 and 6 respectively.

In performing his executive functions, the President may issue orders to agents and agencies of the executive branch in respect of a project or programme. These orders may set out government policies, issue directives or command action relating to functions of the executive arm. An order issued by the President becomes rather controversial when it purports to make law (1). There is no express mention of executive orders in the constitution, howbeit, executive orders are an offspring of constitutional development, especially, in the history of the development of presidential power in the United States (2). It is usually following the presidential instinct to ‘execute and maintain’ the provisions of the constitution (3).

The President’s power to issue executive orders raises the problem of lack of clarity in separation of powers. If executive orders have the force of law, it goes without saying that Presidents have the power to make laws by issuing executive orders. However, there is a counterbalance considering that this power is also controlled and checked by the Judiciary. Executive orders are advantageous because they are required to fill in the gaps in legislations creating executive agencies. A good instance of such executive order would be Executive Order 5, issued by the President relating chiefly to promotion of Nigerian content in public procurement of goods and services. The use of executive orders is also necessary in occasions of regulatory contradiction and uncertainty in Nigeria (4).

 

Like legislative statutes, executive orders are subject to judicial review and may be overturned if the order lacks support by statute or the Constitution, if the order demands an action that will be illegal, or if the order contravenes one or more doctrines of democracy. A critical case on Presidential executive orders is Attorney General of Abia State & ORS V. Attorney General of the Federation [2003] 4 NWLR (PT 809)124. In this case, the Supreme Court considered the validity of the promulgation of the Revenue Allocation (Federal Account, Etc) (Modification) Order (Statutory Instrument No. 9 of 2002). Belgore, JSC held that the promulgation order was indeed constitutional and valid seeing as the then President of the Federal Republic of Nigeria, Chief Olusegun Obasanjo, acted pursuant to Section 315 of the 1999 Constitution. Courts, however, do not readily invalidate executive orders and the legislature cannot impose a general prohibition on the use of executive orders, as noted by the Supreme Court in Attorney General of the Federation v Abubakar [2007] 10 NWLR (Pt 1041)1 (1).

Like drugs, the authority granted to the President to make an executive order can be misused. Truly, an executive order issued by the president, with a goal to ‘execute and maintain’ the terms of the constitution, can engender the adherence to democratic principles, consequently advancing the practice of democracy. Nonetheless, if misused, an executive order can set a nation on the path to tyranny.

 

Since the return to democracy in 1999, each successive government in Nigeria has signed a number of executive orders, President Muhammadu Buhari’s government inclusive. Commonly, the news of the signing of a new executive order is greeted with either public outcry at worst or with mass apathy at best (5). Some of the orders issued by President Muhammadu Buhari’s government include:

 

Executive Order No.1, on the Promotion of Transparency and Efficiency in the Business Environment. The mischief of this order is to facilitate the ease of doing business in Nigeria through the promotion of transparency and efficiency in the business environment (6).

 

Executive Order No.2, on the Promotion of local content in public procurement by the Federal Government. This order’s mischief is to grant preference to local manufacturers of goods and service providers in their procurement of goods and services.

 

Executive Order No.3, for the Timely Submission of annual budgetary estimates by all statutory and non-statutory agencies, including companies owned by the Federal Government. This order addresses the delay in the passage and assent of National Budget occasioned by the late preparation and transmission of budget estimates by Ministries, Agencies and Departments (MDAs), with the 2016 and 2017 budgets as befitting reference points.

 

Executive Order No.4, on the Voluntary Assets and Income Declaration Scheme (VAIDS), to increase the level of Tax awareness and compliance, widen the tax net, and reduce incidence of tax evasion in the country. Also, to offer amnesty until March 31, 2018 (later extended to 30 June, 2018) to tax payers (individuals and corporate bodies) who have defaulted in their obligations in the past.

Executive Order No.5, to improve local content in public procurement with Science, Engineering and Technology components. The executive order is expected to promote the application of science, technology and innovation towards achieving the nation's development goals across all sectors of the economy (7).

 

Executive Order No.6, on the Preservation of Suspicious Assets connected with corruption and other relevant offences. This order sought to fight corruption by curtailing certain liberties and fundamental rights of Nigerians (8). The order prevents persons guilty of corruption from continuously holding and controlling asset acquired from proceeds of corruption.

 

Executive Order No.10, which merely affirms the financial autonomy already donated to State Legislature, Judiciary, and by the Constitution, strengthens them as institutions, and makes them truly independent from the suffocating grip of State Governors. This ensures transparency, accountability and responsibility in government; broadens and deepens the democratic space; and signposts the much-desired restructuring and power devolution (8)

 

These executive orders do not escape criticisms. Particularly, President Buhari’s Executive Order No.6 raised controversies as to its constitutionality and validity seeing as it invalidates the rights to property guaranteed in Sections 43 and 44 of the 1999 Nigerian Constitution. According to the President, the order aims to “restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to preserve such assets from dissipation and to deprive alleged criminals of the proceeds of their illicit activities which can otherwise be employed to allure, pervert and/or intimidate the investigative and judicial processes” (9).

 

Indeed, democracy cannot flourish in the dearth of clear and precise separation of powers and an operative system of checks and balances (10). This is a challenge for the legal profession and the Judiciary to understand the constitutional, political and policy contexts of the exercise of executive power in order to prevent the executive arm from exceeding its power limits, safeguard human rights and liberties, and save the democratic society that is Nigeria.

 

Adeniran Oluwabukunmi.


 

References

1. Okebukola and Kana. Executive Orders in Nigeria as Valid Legislative Instruments and Administrative Tools.

2. Historical Development of Separation of Powers. LawTeacher. 2019.

3. Sam, Amadi. Executive order 10 of 2020 is dangerous to constitutional democracy. 2020.

4. —. Executive Order and presidential power in the Nigerian constitutional democracy. TheGuardian. 2018.

5. Jonathan, Ekpo. A Critique Of The Companies Income Tax (Road Infrastructure Development And Refurbishment Investment Tax Credit Scheme) Order 2018.

6. Ladan, M.T. Presidential Executive Orders 1-6 Of May 2017 to July 2018 as Enforceable Legislative Instruments In Nigeria [As At July 6, 2018]. 2018.

7. Law, Bloomfield. Nigeria: President Muhammadu Buhari Signs Executive Order To Improve Local Contents In Science, Engineering & Technology Procurement. 2018.

8. Nigeria: Is President Buhari's Executive Order 10 Constitutional? AllAfrica. 2020.

9. Dayo, Adu and Ridwan, Oloyede. President of Nigeria Signs Executive Order 6 of 2018 on the Preservation of Assets Connected With Serious Corruption and Other Relevant Offences. 2018.

10. Simon, Rogo. Nigeria: Executive Order 10 Will Deepen Democracy. 2020.

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