‘Presidential Order on withdrawal of firearms not well thought out’
Former second vice president of the Nigerian Bar Association (NBA), Monday Onyekachi Ubani, in this interview with ONYEDIKA AGBEDO explains that the Presdient Muhammadu Buhari is constitutionally empowered to issue Executive Orders but says his latest order on withdrawal of licensed guns from Nigerians was not well thought out.
How would you react to the high rate of issuing executive orders in the country by President Muhammadu Buhari?
Section 5 of the 1999 Constitution gives executive powers to the president. But any executive order he signs that requires constitutional amendment or legislative enactment has to go to the National Assembly for enactment. Executive orders can only work when they are purely for the purpose of executing the powers of the president in furtherance of governance. The president cannot in anyway legislate; he cannot also interpret the law. So, whatever executive order he issues must be in aid of his powers as the president. It has to do with administrative matters and must have nothing to do with legislative enactment. If there is an issue that requires legislative enactment, executive order cannot stand in its place.
What you are saying is that under the constitution, there is a place for executive orders?
Yes! In furtherance of executing his powers as the president, the president can sign an executive order.
Under what situations is the president supposed to issue an executive order?
As I said earlier, the president is supposed to execute the laws of the country. So, if there is any legislative enactment which has given powers to the president to do certain things and he feels that these things should be brought to the fore and be carried out, he can sign executive orders in furtherance of his executive powers. But it can’t be beyond his powers. He cannot do anything that is not authorised by the constitution. So, he can only sign it in furtherance of the execution of his executive powers as provided in the constitution.
You know he had signed executive orders in respect of ease of doing business. The executive order was to ensure that all the agencies of government work together to ensure that those who come to Nigeria to do business do not suffer cogs in the wheel. The orders were in furtherance of his executive powers. But he cannot sign executive orders with regards to where certain acts require legislative enactment. Any executive order must be in furtherance of the execution of his powers; it cannot be in conflict.
Does the National Assembly have the powers to override any of such orders signed by the president?
If the president signs an order that requires legislative enactment, they can override. If he signs an order that is not in furtherance of the execution of his executive powers, they can correct him. If he also signs an executive order that calls for a legislative input and because they are our representatives they feel that the order should be suspended pending the time there would be an input by members of the NASS, he has to suspend it. If he feels otherwise, the matter can be tested in court whether what the NASS has done is in consonance with the constitution or whether the executive order the president has signed is in conflict or in accordance with the constitution. So, if there is any conflict at any point in time, it can be resolved by the judiciary.
But I think that in exercise of his executive powers, there should be non-interference by the other arms of the government unless there is conflict.
The present administration actually brought the concept of executive order to the fore in the country. How does it work in other climes?
It is because we saw it being practised in the United States of America. You know we copy the U.S. virtually in everything. When Donald Trump emerged as U.S. president, we saw him sign some executive orders. And our constitution is similar to the American constitution. So, there were questions as to why our presidents had not been signing executive orders all these while even in areas they were supposed to be in action. So, this president now took a cue. So, it was Trump that actually gave us the hint that the president can use executive orders to accomplish the laws.
But the executive orders too can be interpreted. The judiciary has shut down most of the executive orders Trump signed in the U.S. Remember that he signed executive orders that had to do with immigration and they went to court and those orders were declared null and void. So, anyone that feels that an executive order has infringed on his/her rights can approach the judiciary for an interpretation of the order. It is not as if executive orders cannot be challenged in court once the president signs them; they can be challenged by an individual who feels an executive order has affected him/her adversely and should not stand.
With the rate the president has been signing executive orders, do you think he is abusing the concept?
As I said, if anyone feels there has been a breach or that an executive order is going beyond the powers of the president, he/she can challenge it in court. We might as well develop our jurisprudence from that angle. It’s a new phenomenon here and it’s becoming a practice. So, I don’t see anything wrong in challenging an executive order in court if anyone feels that it has gone beyond the constitutional powers of the president or that he has not exercised it appropriately or that his constitutional, fundamental or civil rights have been affected adversely. The court will interpret whether what the president has done is constitutional or not.
There is an instance where Buhari’s executive order was challenged in court. I recall that sometime last year, some lawyers filed a suit at the Federal High Court, Abuja, to challenge Executive Order 6, which provides for the interim seizure of assets linked to ongoing criminal trials and investigations. Justice Ijeoma Ojukwu then ruled that the order was within the powers of the president. So, executive orders can be tested in court if anyone feels he/her rights have been infringed upon.
What is your view on the latest executive order by the president on withdrawal of legitimate firearms from Nigerians?
I don’t think that is a well thought out executive order. First, before you issue an executive order, there must be an independent research on what you want to sign as an executive order. Now, you signed an executive order asking that people should return their legitimate gun licenses and their guns. But was there an independent research carried out to know whether those who have legitimate licenses and firearms caused the spate of insecurity in the country? Or was the spate of insecurity caused by those who don’t have licenses? Most of those committing these crimes and causing so much havoc in the system are those bearing AK47 and other sophisticated weapons that they did not even obtain licenses to carry. They are the ones killing people all over the place. Now, you are asking those who are using their licensed guns for hunting and protection of their lives to return them whereas there is no independent research carried out to indict them.
So, research must establish that these people who have licenses are the ones killing people all over the place or giving these guns to armed robbers and other criminal elements before such executive order can be issued. If that is established, there is no need of asking them to hold their licenses. But if there is no independent research and finding, will it be right for the president to ask those who have legitimate guns and licenses to return them and thereby making them to become preys to those carrying sophisticated weapons without licenses that are causing havoc in the system. So, I think the president is putting the cart before the horse.