The legality of executive orders

The other day, the Presidency announced, with gusto, that President Muhammadu Buhari had signed Executive Order 6 into law. I was miffed. Executive Order 6 means there have been five earlier Executive Orders! Executive Order 6 whose short title, “Preservation of Suspicious Assets Connected with Corruption and Other Related Offences” (“the Order”), smacks of a criminal law legislation, enacted by the President, who is the head of the Executive arm of government!

I submit, to start with, that the Order which seeks to empower the President or the agencies of the Federal Government to impound any landed property that is subject to litigation pending the determination of such a suit by a court of competent jurisdiction, contravenes all the known laws in the democratic world, where the rule of law and the due process of law hold sway. It stands the democratic logic on its head: presume guilty before being proved innocent!

The doctrine of separation of powers among the three arms of government—the Legislature, the Executive and the Judicature—is rigidly enshrined, respectively, in sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), which the President solemnly swore to uphold. This doctrine was adopted to provide checks and balances among the three branches of government, a fortiori, to preclude the exercise of arbitrary power.

In Myers v. United States 272 U.S. 52, Brandeis J. of the U.S. Supreme Court stated, with approval, that the “The doctrine of separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power.”This case, a locus classicus, has had a hortatory effect on a long line of Nigeria’s Supreme Court cases. In Unongo v. Aper Aku (1983) 2 SCNLR 332 @361, for instance, the Supreme Court, per Kayode Eso (JSC, as he then was), observed: “The Constitution of the Federal Republic of Nigeria 1979 (read 1999) …is very unique, compared with the previous Constitutions, in that the executive, the legislature and the judicature are each established as a separate organ of government. There is what can be termed a cold, calculating rigidity in this separation…”

Aside from the Executive’s involvement in the legislative process, whereby the President assents to a Bill that has been duly passed by the two Chambers of the National Assembly to become law, I know no zone of twilight in which the Executive and the Legislature possessconcurrent authority to legislate. So, from where does the Nigerian President derive the authority to legislate, interpret and enforcelaws, whichExecutive Orders and Proclamations are?

The President’s advisers would readily point at Section 5 (1) (a) of the 1999 Constitution, which perspicuously provides that “…the executive powers of the Federation—(a) shall be vested in the President…”, subject (it should be noted) to the provisions of the Constitution and to the provisions of any laws made by the National Assembly. That section further states that the executive powers vested in the President could also be exercised by either the vice-president, any of the ministers of government and officers in the public service of the Federation. Quite clearly, it would be asinine to suggest that the vice-president, the ministers and officers in the public service of the Federation are directly or indirectly constitutionally empowered to issue executive orders and proclamations having the force of law! Section 5 of the 1999 Constitution can, therefore, not be the source of the executive orders and proclamations issued by the Nigerian President.

In all probability,the Nigerian President has decided to take a leaf out of the practice in the U.S., where the Presidents issue executive orders and proclamations with abandon, even if unconstitutionally. US Presidents have based their executive orders on Section 1 of Article II of the US 1787 Constitution, which nebulously provides: “The executive Power shall be vested in a President of the United States of America.” That provision has been described as being maddeningly vague.In the epic case of Youngstown Sheet & Tube v. Sawyer 343 US 579 (1952), the Court found that the President had acted without statutory or constitutional authority. Besides, the Court declined to entertain the contention that presidential power to issue executive orders should be implied from the aggregate of his powers under the Constitution. The Court further explained that the President’s power to issue executive orders must stem from either an act of Congress or from the Constitution itself.

However, Dames & Moore v. Reagan 453 US 654 (1981) dealt with President Jimmy Carter’s Executive Order freezing Iranian assets in the U.S., in November, 1979.The Court, in that case,found that Congress had acquiesced in the President’s action and, accordingly, ruled in favour of that Orderbecause, traditionally, executive orders and proclamations involving foreign policy and security are given great leeway by the courts. Other than such issues, U.S. Courts have severely criticized the issuance of executive ordersby American Presidents. Justice William Howard Taft, the only individual to have served as both the President and the Chief Justice of the U.S., in “Our Chief Magistrate and His Powers,” (New York, 1916), posited: “The true view of executive functions is, as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary in its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof.”

A long line of the U.S. Supreme Court cases, now loci classici, reprobates the whole concept of executive orders and proclamations as they are neither specifically provided for in the 1787 Constitution (as amended) nor defined in any statute, authorising quasi-executive legislation.
Executive orders in the U.S. are generally directed at, and govern actions by, government officials and agencies, unlike in Nigeria, where executive orders are targeted at individuals directly, thereby flagrantly infringing on their fundamental human rights. If U.S. Presidents issue executive orders, they also claim to rely on a Congressional Statute, the Neutrality Act (1794), which gave the Executive the power to prosecute those who violated President Washington’s proclamations.

There is no such statute in Nigeria. So, what is the source of executive orders in Nigeria? One of our problems is that Nigerians, including lawyers, are hardly litigious. So, every dictatorial autocratic act of government goes!

It should be stated at this juncture that, though the 1999 Nigerian and the 1787 American Constitutions may be substantially similar, they are NOT identical. For example, the terse and nebulous provision in Section 1 of Article II of the U.S. Constitution, with regard to the powers of the U.S. President, cannot compare favourably with the detailed but limiting provisions of s. 5 of the Nigerian Constitution on the powers of the President.

It is sad that Nigerian leaders luxuriate in photocopying the negative aspects of the U.S. Constitution as though Nigeria and America shared a community of socio-cultural and politico-economic antecedents, ignoring such positive areas of the U.S. Constitution as a rigid adherence to the Rule of Law and the Due Process of the law(usually set aside in Nigeria, with abandon and without demur, in favour of “national interest”), the democratic principle, respect for the citizens’ fundamental human rights and human dignity, catering for the welfare and security of the citizens, etc.

Executive Order 6 is a classic example of Nigerian leaders’ penchant for setting all democratic principles at nought; it is designed to usurp the functions of the Legislature (making laws) and the Judicature (interpreting and enforcing laws) contrary to section 36 (5) of the 1999 Constitution (as altered), which stipulates that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”