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The Executive Powers of the President (2) Updated

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The Executive Powers of the President (2) Updated THE EXECUTIVE POWERS OF THE PRESIDENT 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.
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