PRESIDENT Muhammadu Buhari is governing Nigeria by fiat. In a practice alien to previous civilian presidents, he is using executive orders to take far-reaching actions. Since assuming office in 2015, Buhari has issued 10 executive orders. So proud is he of such instruments that the Presidency said in a document marking his administration’s fifth anniversary: “The Buhari administration has, since 2017, issued a number of landmark Executive Orders.”
But are executive orders intended for “landmark” actions that have extra-constitutional or extra-jurisdictional implications? Are they designed to take the form of law-making by the executive? Or to usurp the functions of other arms of government? Of course, no!
According to Black’s Law Dictionary, Executive Orders are designed “to direct or instruct actions of executive agencies or government officials”. As one scholar also puts it, an executive order “is a type of written instructions that presidents use to work their will through the executive branch of government”. But such presidential directives are subject to constitutional and statutory constraints.
Executive orders are an American invention. But their reach is so limited that Congress and Federal Courts have struck down several executive orders for exceeding the scope of the president’s authority. Recently, the US Supreme Court voided President Trump’s executive order seeking to deport young immigrants because it violated the Administrative Procedure Act, which says that a government action cannot make policy that is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
The Nigerian Constitution doesn’t expressly refer to the use of executive orders. Those who justify its use do so on the basis that Section 5 of the Constitution says that “the executive powers of the Federation … shall be vested in the President”. But the same Section 5 also says that the exercise of the “executive powers” is “subject to the provisions of this Constitution” and “to the provisions of any laws made by the National Assembly”. So, no executive order purportedly issued pursuant to the so-called Section 5 power can directly or indirectly add to, or subtract from, the Constitution or any existing statute.
Yet, recently, the Attorney-General and Minister of Justice, Abubakar Malami, justified the president’s use of executive orders by saying their aims were, among others, to “complement existing legislation” and “ensure constitutional compliance”. But executive orders will overreach as an implementing legislation without an enabling power or legislative oversight. In the UK, ministers legally implement provisions of primary statutes through statutory instruments. But such instruments must be scrutinised and approved by parliament before becoming law.
Surely, if executive orders are not just administrative directives for government agencies and officials but have implications for individual rights, separation of power, federalism, etc, then they must be subject to legislative oversight or capable of being struck down by the courts. But, in Nigeria, executive orders are never scrutinised by the legislature and hardly ever challenged in court. Yet, the increasingly pervasive use of executive orders and, more importantly, their insidious threat to constitutional democracy call for vigilance.
President Buhari has embraced this American invention called Executive Order with gusto. Yet, he has shown little regard for the US Supreme Court’s view that such orders cannot be used to make policy that is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law”.
Of course, not all of President Buhari’s executive orders are outside the normal scope of such instruments. For instance, Executive Order 1 of 2017, which requires Ministries, Departments and Agencies, MDAs, of the Federal Government to act transparently and orders “all related MDAs at the airports” and “all agencies currently physically present in Nigerian ports” to merge or harmonise their operations, is a proper executive order: a policy directive by the Federal Government to its MDAs on how to carry out their functions.
But most of Buhari’s executive orders are not just administrative directives; they have far-reaching constitutional implications and either trample on individual rights or undermine separation of power or federalism. For space constraint, let’s consider two of such egregious orders: Executive Order 6 of 2018 and the latest Executive Order 10 of 2020.
In 2018, President Buhari issued Executive Order 6 freezing all assets of individuals facing corruption allegations or charges. Reacting to the order, the Nigerian Bar Association said Buhari’s use of executive orders in criminal matters amounted to “decree-making”!
Later, a Federal High Court clarified the legal position. It held that the president had the power to issue Executive Orders “on routine administrative matters”, provided such orders “do not step on the toes of legislative and judicial powers under the constitution.” But that’s precisely what Executive Order 6 did by seeking to freeze “looters’ assets” without a court order. So, the court modified the executive order and directed that those enforcing it “must, at all times, obtain a court order before seizing any asset”. But what does the fact that Buhari could even contemplate using an executive order to seize assets without a court order tell us? Well, it shows an authoritarian streak!
Which brings us to Executive Order 10 that purports to implement Section 121(3) of the Constitution, which grants financial autonomy to state legislature and state judiciary but doing so in a way that utterly undermines the principles of federalism. Essentially, Executive Order 10 places obligations on state governments and turns Federal Government agencies and officials – Attorney-General and Accountant-General – into sheriffs against them! And it does so not through a statute or a constitutional amendment, but an Executive Order!
It was recently reported that after state governors pointed out the constitutional anomalies in the executive order, President Buhari suspended its implementation “pending further consultations.” But why did he issue such a perverse order in the first place?
Over the past five years, Buhari self-servingly vetoed nearly 50 bills passed by the National Assembly. Yet, he enjoys exercising arbitrary law-making powers without legislative scrutiny. Unchecked, that’s a slippery slope to dictatorship!