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What are executive orders?

Executive Orders have generally crept in to our political lexicon in the last few months. The apparently strange presidential resort was more recently popularised by President Maverick and President Donald Trump of America. Erudite Professor and Acting President of Nigeria, Yemi Osibanjo, SAN, wasted no time in embracing it here and using it in its most luminous manner, plenitude and amplitude.

Meaning of executive orders

Executive Orders are orders issued by a president and directed towards officers and agencies of the government. Executive orders have the full force of law, based on the authority derived from statute or the Constitution itself. The ability to make such orders is also based on express or implied Acts of the Legislature that delegate to the president some degree of discretionary power.

Origin of executive orders

Executive orders have their origin in the United States of America.  The first executive order was issued by George Washington on June 8, 1789, addressed to the heads of the federal departments, instructing them “to impress me with a full, precise, and distinct general idea of the affairs of the United States” in their fields. With the exception of William Henry Harrison, all presidents beginning with George Washington in 1789 have issued orders that in general terms can be described as executive orders. Initially they took no set form. Consequently, such orders varied as to form and substance.

Constitutional basis of executive orders

The constitutional basis for Executive Order is the president’s broad powers to issue executive directives. According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”

But Article II of the U.S. Constitution (which is the equivalent of Section 5 of the Constitution of the Federal Republic of Nigeria, 1999), vests executive powers in the president, makes him the Commander-in-Chief, and requires that the president “shall take care that the Laws be faithfully executed.” Laws can also give additional powers to the President.

The U.S. Supreme Court has held that all executive orders from the President of the United States must be supported by the Constitution, whether from a clause, granting specific power, or by Congress, delegating such to the executive branch. Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the congress in statutes. Attempts to block such orders have been successful at times when such orders exceeded the authority of the president or could be better handled through legislation.

In Nigeria, as in the United States, 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 but, like in the USA, it is widely used. Professor E.O. Okebukola and A.A Kana, define the phrase, as executive order is a command as: “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, define the scope of existing legislation or be a subsidiary instrument within the contemplation of section 37 of the Interpretation Act”. According to Okebukola and Kana, Executive  Orders  have  legal  force  only  when  they  are  based  on the president’s  constitutional  or  statutory  authority. They are valid only where presidents act within the boundaries of their constitutional or statutory authority. The enabling legislative or constitutional authority may empower the president to use Executive Orders to perform strictly defined roles.

The  Legislature  or  Constitution  can also  confer  wide  discretionary  power  on  the president  to  issue  orders  in certain  matters. For instance, under Section 315 of the 1999 Constitution, the president and other appropriate authorities have the power 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”.

Underscoring this point, the Supreme Court, held in the case of AG, ABIA STATE & ORS V AG, FEDERATION (2003) LPELR-610(SC), per Belgore, JSC, as follows:

“It is noteworthy that the Constitution, itself, has defined “appropriate authority” for the purpose of an Act of National Assembly for modification as the “President.” It also defines “modification” as follows in S. 315(4)(c):”315(4)(c) ‘modification’ includes addition, alteration, omission or repeal. Thus the president has wide power when modifying any existing law to bring it in conformity with the Constitution. It is true that “separation of powers” is essential to a healthy democracy, the power given the president and also to state governors in existing law of the state by the Constitution is not an abuse of the principle or doctrine of separation of powers, it is essential to giving meaning to an existing law so that the Constitution itself is not abused.”

Apart  from  this  provision  of  the  Constitution, the Act of the National Assembly can also  permit  modification  by  the president. 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. It should be noted, however, that in matter, involving the exercise of statutory power, it is settled law that, the function of the court begins when it is alleged that the power has not been exercised in accordance with the law.

Thus, in the case of OMOKHAFE V. ESEKHOMO(1993) LPELR-2649(SC), the Supreme Court, held, per Belgore, JSC, as follows:

“Where there is a statutory provision for making an order or declaration, and the making of the same is reposed in a named office, whether Minister or Commissioner, or indeed whether President of the Republic or Governor of a State, such function cannot be usurped by the Court. The furthest a Court of Law can go is to declare as to validity or otherwise of that order or declaration of a public officer; but the court has not got the jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.”

In A.G. ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT. 224) 396 AT 419, the Supreme Court states thus:-

“In matters involving the exercise of statutory power, the function of courts begins only when it is alleged that the power has not been exercised in accordance with the law, once the person or authority or body on whom the statutory power is conferred has exercised, its powers under the statute, any citizen of Nigeria, who feels his rights are infringed thereby can by virtue of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1979, challenge the exercise of the power.” (Merchant Bank v. Federal Minister of Finance (1961) All N.L.R. 598; Egbuson v. Ikechukwu (1977) 6 S.C. 7 referred to and followed)

Again in AJAKAIYE V. IDEHAI (1994) 13 NWLR (PT. 364) 8 NWLR 504 AT 525 to 526 the Supreme Court held:

“Where there is a statutory provision for making an order or declaration and the making of same is reposed in a named office, whether Minister or Commissioner or indeed the President of the republic or the Governor of a State, such function cannot be usurped by the Court. The furtherest, a Court can so is to declare as to validity or otherwise of that order or declaration of a public officer, but the Court has not got the Jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.”

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