Nigeria: The Executive Powers Of The President

Last Updated: 9 November 2018

INTRODUCTION

Following the declaration of National Emergency in Nigeria to deal with corruption's perilous counter attack against the Nigerian State. President Buhari on the 5th of July 2018 signed the Executive Order No. 6 on the preservation of Assets Connected with Serious Corruption and other Related Offences. The Executive Order comprises a preamble, seven sections, two schedules and some essential features. The first feature begins with acknowledging corruption, the second talks on protecting the asset from dissipation, the third talks about the specification of persons and court cases and person to whom it applies. Names cover former IGP, Orji uzorkalu, ex adamawa state gov-murtala nyako, Gabriel suswam, sani yerima (ex- Zamfara gov), sule lamido etc

What this means is, if government suspects a person has illegally acquired assets, such person is charged to court and government will subsequently take over the assets temporarily pending when the judicial process will run its course.

In the President's own words

"...I have decided to issue the Executive Order No. 6 of 2018 to inter alia 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 investigation and judicial processes or for acts of terrorism, financing of terrorism, kidnapping, sponsorship of ethnic and religious violence, economic sabotage and cases of economic and financial crimes, including acts contributing to the economic adversity of the Federal Republic Of Nigeria and against the overall interest of justice and the welfare of the Nigerian State"

It is obvious that the above-mentioned Order is out to fight against corruption, a project which is very crucial to the viability and continuous well-being of Nigeria. However, the Executive Order No. 6 has met with a lot of criticism from the opposition parties and the general public. The main opposition party, PDP certainly thinks that the president has gone beyond his bounds in enacting the order which it strongly condemned as illegal, unconstitutional, reprehensive and a dangerous step towards a descent to fascism. PDP believes that the order was imposed in total disregard to the provisions of the 1999 constitution.

It is imperative to look at what an Executive order is and the Executive Powers of the president as imbibed in the Constitution in order to determine the scope, limits and totality of itsPowers.

DEFINATION, LEGALITY, USE AND FORM OF EXECUTIVE ORDER

It is pertinent to note that there is no such thing as "Executive Order" as this is foreign to the Nigerian Jurisprudence. The expression "Executive Order" is neither defined in the 1999 constitution nor is it interpreted in any Legislation of the National Assembly or House of Assembly of any state. Indeed, the very few acts of the Legislature that contain the expression "executive Order" do not define or interpret it. The interpretation Act also does not contain any definition of the expression. One can argue that "executive orders" are unknown to our jurisprudence.

For the purpose of defining an Executive Order it is instructive to turn to the United States of America which has a long history of presidential use of executive orders. However, notwithstanding its age-old use in the USA, there has been no statutory or constitutional definition of executive orders. In turning to an academia for an unofficial but weighty clarification, the American Author, K R Mayer in his book "Executive Orders and Presidential Power", defines an executive order as "a presidential directive that requires or authorizes some action within the executive branch." To Raven-Hansen author of "Making Agencies Follow Orders", "Executive Orders are presidential policy directives to the federal bureaucracy".

The working definition of executive order, is 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 and define the scope of existing legislation.

In view of the 1999 constitution, section 5 below states the powers of the executive; The Executive Power of the President shall Section 5(1)a – Be vested in the president subject to the laws made by the National Assembly and can be exercised by him directly, VP, Ministers of the government or officers in the public service of the federation.

Section 5(1)b – Shall extend to the execution and maintenance of this constitution, laws made by National Assembly, and to all matters which the National Assembly as power to make.

From the foregoing constitutional mandate above, an executive order can only be issued to enforce already existing powers, duties and mandates under existing law; to manage staff and resources of executive agencies for greater economy, efficiency, effectiveness and for the realization of level policy goals.

Therefore, an executive order cannot be used by the executive to create new powers, duties or rights or expand existing ones beyond the mandate given by the legislature or the constitution. Thus, the executive Order is made merely to sharpen and clarify how existing laws will be implemented.

"Executive Orders have legal force only when they are based on the presidents constitutional or statutory authority". They are valid only where presidents act "within the boundaries of their constitutional and statutory authority. Where the enabling law sets limits to the president's powers, an executive order outside the express instructions of the legislature will be adjudge invalid.

Generally, executive orders do not give room for the choice to obey or not. They are therefore not normally directed at individuals in situations where the individual can lawfully exercise a choice of refusal. They may nevertheless be directed at a class of individuals. This is not to say that an individual cannot be subject of an executive order. Such an individual would however be a member of a target group or class.

Functionally, the enabling legislative or constitutional authority may empower the president to use executive orders to perform strictly defined roles. The powers conferred on the president by this Act is strictly spelled out. Where the enabling law sets limit to the president's powers, any executive order outside the express instructions of the legislature will be adjudged invalid.See section 5(1) a & b of the 1999 Constitution.

Alternatively, the legislature or constitution may confer wide discretionary power on the president to issue orders in. certain matters. This is amply demonstrated by Section 315 of the 1999 Constitution which allows the president and other appropriate authority to "make such modifications in the text of any existing law as the appropriate authority considers "necessary" or "expedient" to bring that law into conformity with the provisions of this constitution" in essence,e.g.the president can determine any aspect of law that predates the 1999 constitution which are inconsistent with the constitution and thereafter amend the text of law in such a manner that will align the act with the constitution.

In addition to the power to modify, the president may be granted the discretion to use executive orders to implement or set out the extent and scope of an act. And in exercising the discretionary power conferred by an enabling legislation the principles of law relevant to the exercise of discretion become applicable. In this sense the executive order must be fair, just and made in good faith.

Usually the courts are the main source of redress against an executive order which is perceived to be unlawful. Both private citizens and the legislature can approach the courts to challenge executive orders. The courts will not lightly invalidate executive orders but where an executive order is unlawful and unconstitutional the court will not hesitate to invalidate such executive order as pointed out by the supreme court in INEC v MUSA [2003] 3 NWLR (Pt 806) p 72 at 157 para E 65, "all powers, legislative, executive and judicial must ultimately be traced to the constitution"

It is worthy of note that the 1999 constitution does not set out to make the presidency a law-making body working in competition with the legislature. The arm of government is separate and co-equal. Where executive orders create rules modify acts or set out the parameters for their implementation, the president carries out manifestly legislative functions, this is perfectly legitimate as long as any executive order in issue is consistent with its enabling constitutional or statutory authority.

THECRITICISMS OF THE EXECUTIVE ORDER NO 6.

The freezing of the Suspicious Assets of Accused persons, and an arbitrary list of such persons whose assets are to be forfeited is published. Observers believe that President Buhari took this position in the assumption that all the assets are mostly illegally acquired even before the courts have the opportunity to determine that.

Further to the above, some analysts are of the view that the power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the Courts by Section 6 of the 1999 constitution, for the determination of the civil rights and obligations of the citizens.

Essentially, preservation of assets, which are subject matter of corruption must be done within the confines of the rule of law, through powers and duties conferred by already existing statutes or through the orders of courts of competent jurisdiction. It cannot be achieved by an executive order as executive orders cannot be the basis for the forfeiture of assets, whether temporary or otherwise. The order for temporary forfeiture or forfeiture pending the determination of the case should be made on a case by case basis, after the court has duly examined the circumstances and the preliminary weighing of the available evidence.

Creating a schedule in an executive order and listing the names of suspects or accused persons whose property the executive order purports to block or freeze is like placing the cart before the horse and as such, it is illegal, unconstitutional, null and void and an audacious attempt by the President using his Attorney General to usurp judicial powers".

The main opposition party (Peoples Democratic Party), is of the opinion that the Nigerian Constitution does not under any section, "confer such fascist powers on the President under our democracy and there can be no legitimate latitude of interpretation placed on Sections 5 and 15(5) of the 1999 Constitution cited as justification for this draconian executive order, that can excuse it".

Therefore, according to PDP, "President Buhari's unilateral executive order is a travesty of justice and rule of law as it vehemently seeks to hijack and usurp the powers of both the Legislature and the Courts and vest it on himself so that he can assume same at will, as a political instrument, to haunt, traumatize, harass and victimize perceived political opponents.

An order issued by the president becomes rather controversial when it purports to make law. This is because law-making is ordinarily within the remit of the legislature while the President is empowered to execute laws made by the legislature. Moreover, the 1999 Constitution does not set out to make the Presidency a lawmaking body by issuing executive and discretionary powers to it as saddled in Section 5 and 315 of the 1999 Constitution.

I am of the legal opinion that if the President is so determined to fight corruption as empowered by section 15(5) of the1999 constitution he ought to have gone through the initiating and passing of a Bill at the National Assembly to the same effect as the controversial executive order. And thereon sign the executive order to further implement it. As this will not be seen has the President creating new laws, duties or rights or expanding existing ones beyond the mandate given by the legislature. However, this attempt might be truncated by certain elements in the National Assembly who would perceive such a bill as witch hunting, and invariably will not allow it to see the light of day.

Some legal scholars view executive orders as straddling presidential uni-laterism and executive imperialism. Many commentators see executive orders as subverting the vitality of the constitution. However, probably as speculated by analysts and the opposition parties, executive orders may be law making in disguise where an order issued by the president becomes rather controversial and when it purports to make the law.

VARIOUS NEWS HIGHLIGHTS FOLLOWING THE PASSAGE OF EXECUTIVE ORDER NO 6.

REPS REJECT EXECUTIVE ORDER 6

On Wednesday, the 11th of July 2018, the House of Representatives urged President Buhari to suspend and discontinue the application and implementation of Executive Order Number 006 of 2018 which he signed into law. The rejection of the Executive Order by the House of Representatives was on the grounds that the House of representatives felt that the Executive Order was too controversial, and in conflict with relevant provisions of the law. This further led tosome of the House of Representatives members presenting a motion titled "Urgent need to investigate the constitutional compliance of all subsidiary legislations and Executive Orders, by the executive arm of the government".

The motion was sponsored by Hon. Ossai Nicholas Ossai. According to him, the Executive Order was a clear usurpation of legislative and judicial powers, and also a replication of subsisting legislations such as Section 8 of the Recovery of Public Property (Special Provisions Act) of 1983, Section 330 of the Administration of Criminal Justice Act 2015 and certain provisions of the Economic and Financial Crimes Commission Act.

The Senate has also summoned the Attorney General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami, to appear before it and explain the constitutional basis for the Executive Order. They also asked the AGF to explain the other Executive Orders which were issued by the President in clear usurpation of the law-making functions of the National Assembly.

EXECUTIVE ORDER 6: HAS BUHARI ASSUMED THE ROLE OF A PROSECUTOR, JUDGE

  • CBN OTHERS BACK REMOVAL OF PRESIDENT's POWER ON ASSETS FORFEITURE

The recent Executive Order signed by President Buhari on the Preservation of Suspicious Assets connected with Corruption and other Relevant offences, which is aimed at seizing the assets of corrupt persons and institutions in Nigeria, has been received with mixed reactions by critics and members of the public. Some proponents of the order believe that the Order will prevent the dissipation of assets pending litigation, while others against the Order have opined that the Order is an attempt by the President to usurp the powers of the legislatures, which is in excess of his powers. The Chairman of the Special Presidential Investigative Panel for the Recovery of Property, Mr. OkoiObonoObla further backed the Presidents by citing Sections 5 and 315 of the 1999 Constitution (as amended). According to him, the provisions of the 1999 Constitution confers wide discretionary powers on the President to issue Orders with regards to certain matters.

However, critics have stated that the new Order is contrary to the provisions of Section 36(5) of the 1999 Constitution, which provides that an accused person is presumed innocent until proven guilty. A human rights activist and a lawyer, Mr. Inibehe Effiong, further opined that the new Order is just means for the President to witch hunt his enemies and by pass the National Assembly due to the delay in passing the Proceeds of Crime Bill that is currently before both chambers of the National Assembly.

He further stated that if the President wants to prevent the dissipation of assets pending litigation, he could do so by complying with the provisions of Section 20- 33 of the Economic and Financial Crimes Commission (Establishment) Act, and 43- 49 of the Independent Corrupt Practices and other related offences Commission (ICPC0 Act).

SENATE LISTS BUHARI's ALLEGED HUMAN RIGHTS VIOLATIONS, ASSAULT ON CONSTITUTION

The Senate has scheduled a debate and investigations into the allegations of human rights and constitutional violations by President Buhari's administration. According to reports, the recent enactment of the Executive Order 6 is one of the issues that will debated by the Senate. The Acting Senate Leader, Mr. Bala Ibn Na'Allah stated that the chamber will commence the debate on the motion whenever the Chairman of the Senate Committee on Judiciary, Human Rights and Legal Matters, Mr. David Umaru is around. A key prayer of the motion which is currently before the National Assembly, is that the Federal Government should urgently investigate all cases of human rights abuse allegedly committed by the police, the Nigerian Army and other security agencies, in the course of discharging their duties, with a view to identifying the culprits and victims, and then offering redress where necessary.

THE EXECUTIVE ORDER NO 6 IS IRREVERSIBLE.

The Minister of Information and Culture, Alhaji Lai Mohammed, on the 17th July 2018, said the Federal Government will not be intimidated by criticisms from those opposed to the Executive Order No. 6 signed by President Muhammadu Buhari on July 5.

The executive order empowers the Federal Government to temporarily seize landed properties suspected to be proceeds of financial crimes to prevent them from being sold before the outcome of court cases.

Mohammed, who addressed journalists in Lagos, said the opposition to the order was expected as it had sent jitters into the camp of the corrupt persons and their cohorts.

He said, "As you are aware, President Muhammadu Buhari has declared a national emergency on corruption, with the signing on July 5, 2018 of the Presidential Executive Order No. 6 of 2018.

"Summarized, Executive Order No. 6 of 2018 aims to, among others, 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.

"This is the administration's most potent weapon against corruption till date! Expectedly, there have been pockets of opposition to this executive order. Those opposed to it say it is unconstitutional, dictatorial and amounts to the usurpation of the powers of the legislature and the judiciary.

"The truth is that having realized the potency of the order in giving muscle to the fight against corruption – which by the way is one of the three cardinal programs of our Administration – the corrupt and their cohorts have become jittery. They have every reason to be. Henceforth, it won't be business as usual.

"For starters, this executive order will immediately affect 155 high-profile corruption cases. The aggregate value of funds involved in these ongoing cases is N595,409,838,452.25. This is a huge amount by any standard. It is higher than the N500bn allotted to the administration's Social Investment Program in the 2018 budget and the N344bn allocated for the construction and rehabilitation of roads nationwide in the 2018 budget."

The minister said Buhari thought it necessary to sign the executive order at this time to further give impetus to his administration's anti-graft campaign.

He said the President had the power to do so under Section 5 of the constitution, adding that Buhari was not the only President to have signed an executive order.

COURT UPHOLDS THE EXECUTIVE ORDER 6 ON THE 11TH OF OCTOBER 2018

The Federal High Court in Abuja on Thursday upheld the validity of the presidential Executive Order 6 which provides for the interim seizure of assets linked to ongoing criminal trials and investigation.

You will recall that two lawyers namely Ikenga Ugochinyere and Mr Kenneth Udeze, had instituted a suit before the Federal High Court to challenge the executive order 6.

In delivering its judgment, Justice Ijeoma Ijukwu dismissed the suit for lacking in merit and affirmed that the president has the constitutional powers to issue the Executive Order as long as it does not encroach into the principles of separation of powers. She further ruled that the Executive Order was issued as a policy directive for the implementation of provisions of existing laws and that it recognized the right of every citizen to approach the court for redress if aggrieved by enforcement of the Executive Order.

In addition, the court ruled that the role imposed on the AGF by the executive order is subject to Section 174 of the constitution and must be predicated of the existence of facts. The Executive Order which designates the AGF as the coordinating authority directs him to " at all times in this connection, employ all available lawful means, including seeking appropriate order(s) of court where necessary, and ensure that assets shall not be 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 person".

October 09, 2018

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