By Sam Amadi
Since this administration, Nigerian constitutional jurisprudence has witnessed a little transformation. We now deal with Executive Orders. Before President Buhari came to power, no civilian president issued an Executive Order. As at the last count, the Buhari presidency has issued six of such orders. Many of those orders bear the signature of Vice President acting as President. The closest we came to Executive Orders were the so-called ‘General Circulars’ issued by the Secretary to Government of Nigeria to guide the public service of the Federation.
The fundamental difference between the Executive Orders and these service-wide circulars is that the latter do not derive from Section 5 of Powers of the President. Again, these circulars are signed by the SGF and not the President. These circulars have doubtful legal effect and are not readily enforceable by the courts. Executive Orders can be described as “a rule of order issued by the President to the executive branch of government and having the force of law”. They have full legal effect.
Recently, the Nigerian presidency issued an executive order, Presidential Order No. 6 of 2018, affecting assets connected with corruption and other related offences. This is the 6th of such orders. Previous orders have focused on administration of public procurement, especially as it deals with purchase of Nigerian goods and services, registration of businesses, taxes and other aspects of ease of doing business in Nigeria. Executive Order 6 has provoked harsh criticisms from politicians and human rights advocates.
The opposition Peoples Democratic Party (PDP) has flayed the order as targeted against political opponents. These critics considered the order a presidential overreach and even a deliberate attempt at undermining the exercise of legislative and judicial powers under the constitution. The presidency of course denied such imputation. It believed that these orders were in conformity with the functions and practice of the high office of the President of the Federal Republic of Nigeria and in accordance with the practice of constitutional democracy. The problem is that we don’t have a practice of issuing executive orders.
Therefore, our courts have not directly pronounced on them. So, to understand the criticisms and the rebuttals, it is necessary to put these orders in the proper contexts defined by how the constitution structures the relationship between the President as Chief Executive and other branches of Government. It is important to also analyze the constitutionality and legality of these Executive Orders within the context of the tension between a commitment to efficiency and a commitment to rights.
Executive Orders and the Rule of Law
The definition of Executive Orders as rules issued by the President that have legal effect, raises issues about the nature of Executive Orders. Executive Orders have the force of law. This raises problem for the rule of law in a polity. The rule of law, both from a constitutional law and administrative law conceptions, implies the separation of power.
As Montesquieu rightly observed centuries ago, the only way to guarantee the liberty and freedom of the people is to ensure that power is not concentrated in one person or organ. If the entire power of government is concentrated in one person or organ, then, there is strong possibility of abuse and tyranny. Today, all constitutional democracies have settled on separation of power as a fundamental cornerstone of the rule of law. The Nigerian Constitution gives an elaborate expression to this fundamental idea by separating the legislative, executive and judicial powers and vesting each on three different organs whose personnel should not be comingled. Of course, this strict separation is moderated by checks and balances that allow different branches of government to support one another for effective administration.
But fundamentally, the law-making function is clearly defined as the responsibility of the legislature. Section 58 of the Constitution states clearly the law-making process in Nigeria. It is the National Assembly that has the powers to make law. This power must be exercised by concurrent votes of both houses and signed by the President. Where this process is not strictly followed, the Supreme Court has held such exercise as unconstitutional. This was the case in Attorney General of Bendel State Vs. Attorney General of the Federation & Ors (1983) ANLR 208, where the Supreme Court nullified a purported passage of Appropriation Act by a committee of the National Assembly without a concurrent vote of two-third of members of both houses. If Executive Orders have the force of law, it means that Presidents make laws by issuing Executive Orders. This circumvents the clear processes of law-making in the constitution. It vests on Presidents, additional power that tilts the delicate balance in the power dynamics of a constitutional democracy, especially one with a written constitution. This is more important in a fledgling democracy like Nigeria (some will say, a pseudo-democracy) coming out of a period of imperial presidency of military dictators.
Presidential Power and Constitutional Democracy
The foundation of democracy as a form of government is the limitation of power. Unlimited power is incompatible with democracy as a form of government. Democracy has not always been the preferred form of government in human history. All forms of undemocratic regimes have held sway in the world in the past. But today, democracy is the legitimate and pervasive form of government in the world. But democracy stands for the simple idea that those who control the reins of power are exercising a delegated authority. The divine rights of Kings are forever abolished. Every human authority is exercising a delegated authority. This is now the verdict of history, written with the death of millions and the turbulence of world affairs. The heart of the social contract is the limitation of the power exercised by the government. Although Thomas Hobbes justified the monarchy during the period of the civil unrest in England, he had to fall back on the inherent rights of the people in the state of nature to justify the absolute power of Leviathan. But John Locke offered the more authoritative and influential Social Contract theory. In his view, the people in a state of nature possessed full rights and power. In order to improve their enjoyment of life, liberty and property, they constitute government with clear mandate. And when the government becomes injurious to their welfare, they disband the government.
This notion of limited power finds expression in the supremacy of the constitution in a constitutional democracy. So, whereas the President may style himself as ‘an elected kingship’ in the language of some scholars, he remains a powerful official clothed with limited power. It is important to understand the powerful nature of the office of the President of the Republic.
Many previous American presidents have been attacked for aggrandizing so much power and acting as elected monarchs. Right from the founding of the US, there have been many such presidents, who have acted in the fashion of the English kings whose tyrannous manners inspired the American Revolution. A notable example was Truman, whose confiscation of private steel mills in defense of national security was nullified by the Supreme Court.
Another example was Abraham Lincoln who, during the civil war, suspended the habeas corpus writ and answered critics with a riposte, whether it is better to lose the nation and yet preserve the constitution. Recent examples of Presidents who have been accused of acting imperially include George Bush Jr., who appropriated much power, even to order the extra-judicial execution of US citizens in the war against terrorism. But despite these aberrations, the concept of presidential power under a constitutional democracy means that power of the president as ‘elected monarch’ is highly limited and the supremacy belongs to the constitution.The Incidences of Presidential Power under the 1999 Constitution.
Executive Orders are products of the exercise of presidential power under the constitution. So, it is important to understand presidential power under the constitution to understand the legal dimensions of these orders. The 1999 Nigerian Constitution adopts the presidential system of government rather than the parliamentary system under the 1960 and 1963 Independence and Republican Constitutions. The 1999 Constitution is like the 1979 Constitution in this regard. Speaking about the design of the 1979 Constitution, Africa’s leading constitutional law scholar, Professor Ben Nwabueze, argues that it was the exigency of rapid economic development that suggested the need for a presidential system of government with an executive president rather than the parliamentary system with a ceremonial president. Economic development was a national imperative that “calls for effective leadership, a leadership that would be able to mobilize the nation and its resources; and to provide purposeful direction for its people.” Such a leadership requires the “organization of power around a single individual in the name of the president.”
Concentration of power in the president answers to the exigency of effective mobilization and management of natural and human resources. It also answers to the exigency of effective foreign representation. But in the design of this concentrated power, the designers of the Nigerian constitutional order followed the founding fathers of the US Republic by limiting the power of the single individual President such that he or she can do all the good he or she can and none of the evil he or she could. Like I have argued elsewhere, “the unifying of the executive power in one person does not mean that the executive president created under the 1979 Constitution parallels Her Majesty, the Queen as the British Monarch. For one, the Nigerian President does not embody the sovereignty as the British Monarch does. By the Constitution, the sovereignty belongs to the Nigerian people and the Constitution is supreme.”
In practical terms, the 1999 Constitution follows the US Constitution in separating the executive power from the legislative and judicial powers. Section 5 of the Constitution vests the executive power of the Nigerian federation on the President personally. This is very significant, whereas the legislative power is vested in an institution – the National Assembly (Section 4). The judicial power is vested on the Superior Courts of Record (Section 6). The Executive Power is vested on the President, who may exercise it by himself or through his Vice President or any other official.
It is difficult to fully comprehend the extent and scope of the presidential power under Section 5. The language of the Section places the President in a situation that enables him to act as the ‘elected monarch’ as well as ‘a delegated representative of the people’. Nwabueze himself agrees that the “executive power is difficult of precise delineation. Its limits are obscure”. First, the executive power of the federation is donated to the President singularly and personally (not together with the ministers as it is wrongly conveyed by the several approvals by Federal Executive Council (FEC)). This power is wide ranging. It goes to the “execution and maintenance of the constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.” Section 5 of the Nigerian constitution is like Article 2 of the US constitution, which denotes executive power singularly and personally on the President.
It also empowers the President to “take care that the law be faithfully maintained.”
Constitutional law scholars have extracted three offices in the constitutional language. First, the President is a Chief Executive of the Federation. He has responsibility to manage and administer the federal government. As the Chief Executive, the President hires and fires, and coordinates the national economy. The second position is as Commander-in-Chief. As Commander-in-Chief, the President has responsibility to secure the federation and marshal the Armed Forces of the Federation to protect its territorial integrity. The third office is the Sole Organ. The President as Sole Organ represents the federation in foreign relations. Exercising the functions of this, office the President negotiates with foreign entities and signs treaties that create external obligations for the country.
Each of these offices has its incidents and limitations.
It is important to bear in mind that even as Section 5 (2) grants the President wide power to maintain the constitution and the laws, and to attend to all matters which the National Assembly has power to make law (which is basically everything under our own expansive federal jurisdiction), subsection (1) limits the exercise of this wide power. The executive power of the federation that vests on the President is to be exercised subject to ‘the provisions of this constitution’ and ‘to the provisions of any law made by the National Assembly.’ The President can only exercise the awesome power of his office strictly in accordance with the provisions of the constitution or laws made by the national assembly. Even though he is the Chief Executive who has responsibility to superintend the wellbeing of the federation, he cannot act, even in national interests, except such action can be justified by the provisions of the constitution or any law made by the National Assembly.
How does this restriction relate to the clear authorization to ‘protect and maintain the constitution’? The answer is that the President can take any action to protect the constitution as long as it is in line with the clear provisions of the constitution and law validly made by the National Assembly. Well, Abraham Lincoln would not accept this restriction while fighting the civil war in the United States. But that is what our constitutional democracy requires.
The Uses of Executive Orders
Let us consider some of the benefits of executive orders before analyzing the legality of some of the executive orders issued by President Buhari. One of the hallmarks of the administrative state is the increase in the regulatory activities of the federal government. As David H. Rosenbloom et al put it in their book, Public Administration: Understanding Management, Politics, and Law in the Public Sector (2009), the term ‘administrative state’ refers to “several realities of contemporary government that a great deal of society’s resources flow through public agencies, that public administrators are central to contemporary government, and that the nation has decided on a course of attempting to solve its problems and achieve its aims through substantial reliance on administrative action.”
As the challenges of managing the national economy increases, the government resorts more frequently to the use of regulatory agencies that exercise wide range of powers over domestic affairs, even impacting on private economic interests. The US Supreme Court in FTC Vs. Ruberiod 343 U.S. 470 (US Supreme C) (1952), described this phenomenon as the emergence of a 5th branch of government that has deranged our conventional three branches of government. The administrative state brings with it the need for presidential intervention in the management of the national economy.
The President can intervene through regulatory commissions duly created by the legislature. He can also intervene directly through executive orders or presidential proclamations. One good use of the executive order is to prioritize commitment of the executive branch of government. For example, when Barack Obama became President of the United States, he needed to signal the change of government from the high-handedness of the George Bush Jr’s war against terrorism by opening the government to greater transparency. This resulted in issuing his first executive order that mandated agencies to comply with requests for disclosure of information. This order puts the onus on the agency that wants to deny the request to justify the denial rather than on the person seeking disclosure of information. When Donald Trump became President, he issued an executive order on immigration to quickly deal with the grave challenge of immigration, which formed the heart of his presidential campaign.
In Nigeria, there has been a crying need for exercise of presidential power through issuance of executive orders. While I served in Jonathan’s government, I observed many of such instances that required an executive order. There has always been a jurisdictional conflict between the Bureau for Public Enterprises (BPE) and the Infrastructure Concession and Regulatory Commission (ICRC) about responsibility for privatization tasks. This noticeable conflict required an executive order to streamline the focus of each of these statutory agencies. I called attention to this omission but no one issued an executive order to streamline responsibilities. This is one instance in which an executive order boosts the effective exercise of executive powers.
In the Nigerian case, executive order will be required to fill in the gaps in legislations creating executive agencies. Because of the interest bargaining implicit in law-making, oftentimes, law creating executive agencies leave gaps that militate against effectiveness of these agencies and their ability to meet legislative mandates. Executive orders help to fill the legislative gaps by authorizing procedures that enable agencies achieve legislative mandates better. A good instance of such executive order would be Executive Order 5, issued by the President relating chiefly to promotion of Nigerian content in public procurement of goods and services. While I was Chief Executive of Nigerian Electricity Regulatory Commission (NERC), we issued a regulation on national content in the electricity industry. The Executive Order 5 now reinforces the local regulation in the electricity industry. This is an important function of executive orders. They help to align broad agency mandates with presidential priority.
US Presidents have been very busy with executive orders in shaping the regulatory activities of executive agencies. Because of how these activities affect the economy, different Presidents, aiming at different outcomes, have issued executive orders to shape and streamline regulatory actions. Agencies make rules in pursuit of their legislative mandates. The legislature vests such agencies as the Central Bank of Nigeria, the Nigerian Electricity Regulatory Commission, the National Communications Commission and the likes, with rule-making powers because they are part of the executive branch of government. These agencies exercise presidential powers. As Cornelius M. Kerwin and Scot R. Furlong observe in their book, Rulemaking: How Government Agencies Write Law and Make Policy (2011), agencies are the equal of Congress and the President because the rules they issue ‘carry the same weight as congressional legislation, executive orders and judicial decision.”
Presidents exercise oversight over administrative agencies by use of executive orders. The President can issue executive order that mandates some form of review process before a regulatory intervention can be issued. The President can vary the internal review mechanisms for issuance of license and permits. All these orders redefine the landscape of regulatory action to achieve strategic policy objective of the government. President Reagan, Clinton, Bush, Obama and Trump issued such orders to improve the quality of rule-making or constrain the power of agencies to make rule by imposing additional review process.
This use of executive orders is very necessary in the context of regulatory contradiction and uncertainty in Nigeria. Many regulatory agencies in Nigeria don’t have comprehensive business rules that guarantee regulatory certainty. There is also a worrisome absence of a comprehensive procedural law like the US Administrative Procedure Act (APA), which clearly sets out the procedure for rulemaking. This poses two major problems for doing business in Nigeria. First, it grants so much discretion to agencies to make rules as they wish since there is no substantive administrative law that constrain their rulemaking power. This increases the propensity for capricious and highhanded rule-making. Second, the absence of administrative procedure law imposes uncertainty as to the procedure to be adopted for rule-making. It also imperils the constitutional requirement of fair hearing as the regulator may not be sure of which procedure will best comply with fair hearing requirements.
It must be said that some of earlier executive orders signed by the Vice President acting as President meet these considerations as they focused primarily on the work of administrative agencies and anchored on the powers which the legislature has already granted them. No matter the exigencies of public administration, the President should not exercise executive power to issue executive orders to fill gaps which does not exists or which the legislature has spoken by law on how it should be filled.
Legal Incidents of Executive Orders
Executive orders are instruments of management of the national economy and other domestic affairs by a President acting as Chief Executive. But they could also become instruments of self-aggrandizement by a President who wants to exercise more power than the constitution has granted her. The institutional design of constitutional democracy in Nigeria, as in most constitutional democracies, is to create a fair balance between the branches of government. No branch of government should undermine the other. We should agree with Abraham Lincoln when he said, “I said to (President Washington) that if the equilibrium of the three great bodies – Legislative, Executive and Judiciary could be preserved, if the Legislature could be kept independent, I should never fear the result of such a government; but that I could not but be uneasy when I saw that the Executive had swallowed up the Legislative branch.” This constitutional policing is achieved by limiting the president’s plenary powers as chief executive to express provisions of the constitution and the law.
So, when will an executive order go beyond the executive power of the president? In the case of Youngstown Sheet &Tube Co. Vs. Sawyer (343) U.S 579 (1952), the US Supreme Court opined that “The President’s power to issue the order if any, must stem from either an Act of Congress or from the constitution.” In that case, President Truman, acting in time of national emergency, issued an order that adversely affected a private property without proper congressional or constitutional authorization. The court reviewed the extent of the President’s power to ‘maintain the constitution.’ Justice Robert H. Jackson in his concurrence in the case argued forcefully that although the President is the Commander-in-Chief of the Armed Forces, he is not ‘the Commander-in-Chief of the country, its industries and its inhabitants.” The Youngstown case remained a pivotal case as it provides an intelligible framework for understanding when executive orders issued by the President in exercise of Section 5 powers can be legally valid or invalid.
When Executive Order is Based on Express Provision of the Law
In the Youngstown case, Justice Jackson made the point that “When the President acts, pursuant to an express or implied authorization by the Congress, his authority is at a maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This fits into the language of our Section 5, which gives the President power to maintain the law and all matters that the National Assembly can make law. Some of the earlier executive orders relating to streamlining of licensing and registration procedures to achieve business competitiveness fall under the categories of exercise of executive power supported by the dictum of Justice Jackson.
When Executive Order is not Based on Express Provision of the Law
There are instances when the President exercises executive power on matters which the legislature has not expressly permitted or prohibited. This is like a gray area. How should the law view executive orders relating to subject matters, which neither the constitution nor Act of National Assembly has authorized or prohibited? Justice Jackson again offers a guide. “When the President acts in absence of either a congressional power or denial of authority, he can only act upon his own independent power, but there is a zone of twilight in which he and congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a political matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderable rather than on abstract theories of law.”
When Executive Action is Contrary to the Act of National Assembly or Undermines their Lawmaking Power
The third category is when the executive order violates express provisions of the law made by the National Assembly. Justice Jackson argues that “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then, he can rely only upon his own constitutional power minus any constitutional power of Congress over the matter. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system.” The Executive Order 6 falls into this category. Some of its provisions appear like usurpation of the legislative mandate. Again, it inserts the executive into a terrain that belongs to the judiciary and the legislature. In these circumstances, the court may nullify these orders because they can disrupt the vital equilibrium of constitutional power sharing that undergirds liberty and freedom in constitutional democracies.
The Guarantee of Fundamental Rights
If the President exercises Section 5 power to issue an executive order that adversely affects the rights of the citizens, then, such exercise is self-aggrandizing and unconstitutional. In the Youngstown case, Justice Jackson said as much. Truman had attempted to justify the seizure of private steel mills at the wake of a national emergency. The Justice ruled that the President cannot, in the guise of exercising executive power, deprive citizens of basic rights such as right to life, liberty or property without due process as guaranteed by the Fifth Amendment. This is like the guarantee of Chapter 4 of the Nigerian Constitution. The obligation of this is that no invocation of Chapter 5 inherent or express power (including the power to protect and maintain the constitution) will validate an executive order that attempts to deprive citizens of their right to life, liberty or property without legislative or judicial authorization. This is the logic of such cases as Stitch Vs. Attorney General of the Federation (1986) 5 NWLR 47, Lakanmi Vs. AG Western Region (1971) IUILR 201.
The debate about the power of the President to issue executive orders relating to seizure of assets connected with corruption and related offences will need to be situated within the context of the architecture of presidential power within the framework of the design of constitutional governance in Nigeria. First, the debaters should note that the validity of the exercise of executive power is never assessed in abstract terms. It should be assessed in the context of separation of power and how each branch is aggrandizing power to the detriment of the other branch. The separation of power approach is critical because it (separation of power) is critical to protecting the rule of law. If power corrupts and absolute power corrupts absolutely, then, we are safer in a republic if we find an effective way to restrain the power of the ‘elected monarch.’ The most effective way is to police the boundaries of separation of power such that the President acts only in conformance to the express authorization of the constitution or the express provisions of an Act of National Assembly.
There is no doubt that the President has power to issue executive orders and the courts ought to approve these orders if they are challenged. But, where the subject of these executive orders relate to matters that are contrary to the express provisions of the law, usurp the legislative functions of another branch of government or violate the guaranteed rights of citizens, the court ought to strike down such exercise of executive power. This is what the court did in Youngstown case. This is akin to the Nigerian Supreme Court decision in Stitch Vs. AG of Federation.
The challenge for the legal profession and the judiciary is to understand the constitutional, political and policy contexts of the exercise of executive power. If we don’t understand how exercise of executive power undermines or fosters liberty, right and property of citizens, we will muddle the debate and injure society.