Executive powers in issuing executive orders in a democratic Nigeria and the resulting public outcries: Rule of law as a panacea
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In recent times, issuing executive orders by the Executive arm of government at both the Federal (i.e. President) and the State of the Federation be the working of the day, especially on public affairs. Some of these Executive Orders and the use of powers as well as the issuance of same have sometimes (if not many times) generated public outcries from the masses who are the direct subjects of the Executive Orders.
This paper is of the respectful advice that in order to resolve the public outcries, it is necessary for the Executive Arm issuing the Executive Orders to always comply with the Rule of Law and of course, the Rule of Law is the only panacea in this regard. Hence, this topic.
‘Executive’ referred to here, refers to one of the three arms of government as established by the doctrine of separations of powers, the two other arms being ‘the legislature’ and ‘the judiciary’.
It is no doubt and must be emphasized that the Executive Powers to issue Executive Orders in Nigeria for whatever purpose is provided for under the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. For instance, Section 5 of the Constitution provides on the Executive Powers of the Executive Arm of Government at both the Federal and State Governments thus 5.—(1) Subject to the provisions of this Constitution, the executive powers of the Federation– (a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President or Ministers of the Government of the Federation or other officers in the public service of the Federation ; and (b) shall extend to the execution and maintenance of this 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. (2) Subject to the provisions of this Constitution, the executive powers of a State– (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor or Commissioners of the Government of that State or officers in the public service of the State; and (b) shall extend to the execution and maintenance of this Constitution, all Laws made by the House of Assembly of that State and to all matters with respect to which the House of Assembly has for the time being power to make laws. (3) The executive powers vested in a State under subsection (2) of this section, shall be exercised as not to— (a) impede or prejudice the exercise of the executive powers of the Federation; (b) endanger any asset or investment of the Government of the Federation in that State; or (c) endanger the continuance of a federal government in Nigeria. (4) Notwithstanding the foregoing provisions of this section— (a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session; and (b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria. (5) Notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger. Provided that the President shall within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within fourteen days’.
From the above provisions of section 5 of the Constitution, it is clear and my humble view, that having regard to section 5(1)(b) and section 5(2)(b) of the Constitution, Executive Powers of the Executive Arm of Government to issue Executive Orders can be derived either from the Constitution or the Statute of the Legislature (Federal or State where applicable) and all those incidental powers to those statutory powers having regard to section 10(1) and (2) of the Interpretation Act, LFN, 2004, as follows:
10. (1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires. (2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.’
Therefore, by rule of law, where no such power(s) has been conferred by statute, it would (in my humble view) be unlawful for any Executive arm of government to issue any Executive Order in that respect or such subject.
Furthermore, where there is any abuse of powers, executive rascality, executive disobedience to court orders, executive misuse of executive powers, etc., the Court of law is there to be approached as a check on the powers of the executive in issuing executive orders where such powers have not been conferred on such executive authority/arm. In the case of: UNIVERSITY OF ILORIN v. ADESINA (2008) LPELR-5072(CA), where the Court of Nigeria held thus “Section 6 (6) (a) and (b) of the Constitution for instance categorically and mandatorily provides as follows:- “(6) The judicial powers vested In accordance with the foregoing provisions of this section – (a) Shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law. (b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. To the best of my knowledge, the constitution of Federal Republic of Nigeria 1999 only divests the courts of their adjudicatory powers on any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy as set out in Chapter II of the Constitution; and shall not extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law. See Section 6 (6) (c) and (d) of the 1999 Constitution.” Per AGUBE, J.C.A. (Pp.65-66, Paras. E-D).’
Therefore, such suit can be brought before a court of law in public interest by a private individual and or any non-governmental organization championing such public interest litigation. For instance, the Supreme Court in Centre For Oil Pollution Watch v. N.N.P.C. (2019) 5 N.W.L.R. 537, held that ‘In a public interest litigation, the chambers of the Attorney General of the Federation traditionally holds sway. However, the law on focus stand in that regard has grown beyond that and now encompasses public spirited individuals and non-governmental organisations. (P 575, para C). It is a matter of high constitutional principle that if there is good ground for supposing that government department or public authority is transgressing the law, or is about to transgress it, in any way which offends or injures thousands of the citizens, then anyone or those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate. Centre For Oil Pollution Watch v. N.N.P.C. (supra).
Therefore, the law, most respectfully, on locus stand in that regard has grown beyond that and now encompasses public spirited individuals and non-governmental organisations. Furthermore, the issue of executive rascality, executive disobedience to court orders, executive misuse of executive powers, etc., has to be discouraged. Therefore, it is my humble view that court orders would be obeyed where the judiciary’s independence to decide disputes and or cases independent of any political affiliations or influence, fear or favour is guaranteed, else, anything short of trust of the public in the judiciary will have a direct impact on the national progress of Nigeria.
Therefore, all must guide and protect the independence of the judiciary and a situation where individuals or government do things in their own ways will definitely encourage chaos and disunity very soon as everyone will have to take the laws into his own hand and be the judge of his own cause, leading to ‘jungle justice’ that is ‘fake justice’ or ‘injustice to an innocent person or victim’ or ‘justice misplaced’ or ‘justice without substantial evidence’, so to say. Therefore, all and sundry must wake up to ensure that the Nigerian Judiciary remains independent and committed to its constitutional tasks of dispensing justice with confidence and without fear or favour.
It is my humble advice that the Honourable Attorney-General of the Federation and of the State as a legal adviser to the government respectively should always be consulted by the Executive arm of government whenever there is desire to issue any executive order in order to be well guided with the rule of law.
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Furthermore, it is my humble advice to the executive arm that whenever there is any desire to issue executive order on any public subject (in order to avoid unlimited litigation) to always resort to the legislative arm to confer powers or enable the executive arm of government to make law on such subject. There is no need to issue executive order and then thereafter resort to the legislative arm to validate such issuance! Issuing such executive order without any valid legal backing is tantamount to an abuse of executive power and breach of the principle of separation of powers as stipulated under the Constitution.
The Executive arm of government too should not disobey the orders of court against any of its purported executive order where the court declares that such issuance is in violation of the rule of law. In the above section 5 as ‘Executive’ in my humble submission covers ‘the President of the Federation’, ‘the Government of the Federation’ and all other appointees of these two Chief Executive Officers and other officers in the public service of the Federation and of the States of the Federation.
There and then, the issue of ‘executive rascality’ by either of the Chief Executive Officers and especially some law enforcement and security agencies of government acting under the control of these Chief Executive Officers has always been to the debase on the ‘independence of the judiciary’, especially in regard to the obedience to the summons of a court of law and or the decision and or orders made by a court of law against and or affecting any of these government’s agencies. This ‘rascality’ either being infuriated by the possession of firearm and ammunition and other arsenal of the State to the oppression, intimidation and or cohesion of the judiciary and its independence is in my humble view indeed an affront on the principle of democracy.
I have observed that it has always been very difficult if not nearly impossible for a court of law to enforce its powers on either the President or the Governor of a State if same disobeys its orders and this is made impossible by the concept of ‘immunity’ as a restrictive clause against the court and or any person to punish those executives for contempt. I am of the recommendation that for there to be an effective ‘independence of the judiciary’, the provisions of section 308 of the Constitution which provides for the immunity of the executive arm of government must be amended to ‘exempt punishment for contempt of court’ from the restrictions so that the government does not need to wait for the executive concerned to conclude his term before he could be punished for contempt of court even if an imprisonment of at least a 24 hours would be served on such executive officer disobeying the order made by a court of law without such order having been set aside by a competent court of law empowered to do so. If this contempt of court is exempted from the restrictions and or immunity clause, then, the executive in my humble view, would have no option than to always obey the order of court.
Finally, it is my humble submission and recommendation that if the executive arm of government desires Nigeria to grow, it must always ensure compliance with the rule of law in issuing executive orders either in respect of Federal or State affairs as the case might be. Hence, the Rule of Law remains the only panacea in reducing public outcries against issuance of executive orders in Nigeria. Executive immunity should not cover judicial punishment for contempt of court. So, the legislature at both the National Assembly and the Houses of Assemblies of States has roles to play in amendment of the constitutional provisions in regard to section 308 on immunity of the executives.
God bless the Federal Republic of Nigeria! Read more.
Hameed Ajibola Jimoh Esq.; hameed_ajibola@yahoo.com
