Since assuming office in 2015, President Muhammadu Buhari has issued ten executive orders, a practice alien to his civilian predecessors. Yet, so proud is he of using such instruments that the presidency said in a document marking his administration’s fifth anniversary: “The Buhari administration has, since 2017, issued a number of landmark Executive Orders.”
But are executive orders intended for “landmark” actions? Are they designed to take the form of law-making by the executive? Or to usurp the functions of other arms of government? The answer is no! Which is why Buhari’s arbitrary use of executive orders poses a threat to good governance.
According to Black’s Law Dictionary, Executive Orders are designed “to direct or instruct actions of executive agencies or government officials.” As one scholar also puts it, an executive order “is a type of written instructions that presidents use to work their will through the executive branch of government”. They are, thus, administrative directives.
In the US, where the instrument was invented, its reach is so limited that Congress and Federal Courts have struck down several executive orders for exceeding the scope of the president’s authority. Recently, the US Supreme Court voided President Trump’s executive order seeking to deport young immigrants because it violated the Administrative Procedure Act, which says that a government action cannot make policy that is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
The Nigerian Constitution doesn’t expressly refer to the use of executive orders. Those who justify its use do so on the basis that Section 5 of the Constitution says that “the executive powers of the Federation … shall be vested in the President”. But the same Section 5 also says that the exercise of the “executive powers” is “subject to the provisions of this Constitution” and “to the provisions of any laws made by the National Assembly.” So, no executive order purportedly issued pursuant to the so-called Section 5 power can directly or indirectly add to, or subtract from, the Constitution or any existing statute.
Yet, recently, in justifying President Buhari’s use of executive orders, the attorney-general and minister of justice, Abubakar Malami, said they were being used to “complement existing legislation” and “ensure constitutional compliance”. The dictionary defines “complement” as “to contribute extra features to (something) in such a way as to improve or emphasise their qualities.” But an executive order can’t embellish the Constitution or any statute without explicit enabling power or legislative scrutiny.
Surely, if the remit of executive orders goes beyond mere administrative directives but have implications for individual rights, separation of powers, federalism etc, then they must be subject to legislative oversight or capable of being struck down by the courts
In the UK, ministers issue hundreds of statutory instruments or statutory guidance every year to implement provisions of primary statutes. But such instruments must be scrutinised and approved by parliament before they can become law.
Surely, if the remit of executive orders goes beyond mere administrative directives but have implications for individual rights, separation of powers, federalism etc, then they must be subject to legislative oversight or capable of being struck down by the courts. But, in Nigeria, executive orders are never scrutinised by the legislature and hardly ever challenged in court. Yet, the increasingly pervasive use of executive orders and, more importantly, their insidious threat to constitutional democracy call for vigilance.
Of course, not all of President Buhari’s executive orders are outside the normal scope of such instruments. For instance, Executive Order 1 of 2017, which requires Ministries, Departments and Agencies (MDAs) of the Federal Government to act transparently and orders “all related MDAs at the airports” and “all agencies currently physically present in Nigerian ports” to merge or harmonise their operations, is a proper executive order: a policy directive by the Federal Government to its MDAs on how to carry out their functions.
But most of Buhari’s executive orders are not just administrative directives; they have far-reaching constitutional implications and either trample on individual rights or undermine separation of powers or federalism. Let’s consider just three of such controversial orders: Executive Order 6 of 2018, Executive Order 7 of 2019 and the latest Executive Order 10 of 2020.
Let’s start with Executive Order 7 because it’s the least controversial of the three. In 2019, President Buhari issued Executive Order 7, entitled “Road Infrastructure Development and Refurbishment Investment Tax Credit Scheme”. Essentially, the executive order allows private sector companies to construct and repair roads with their own money and to recover their costs by paying reduced taxes over a period of time. But this complex fiscal arrangement raises serious transparency and credible commitment concerns and shouldn’t have been done through an executive order.
First, given the transparency issues raised by such an arrangement, including its potential abuse, the scheme should have been introduced through a statute, with proper legislative scrutiny and oversight. Secondly, an executive order is the wrong instrument for introducing an investment tax credit scheme with a life span of 10 years. This is because an executive order can’t bind a future government, whereas a statute can until it is amended by the legislature. Thus, as one lawyer said, “the preparedness of the government of the day to respect the letter and spirit of the EO7 of 2019 is critical to the success of the intervention”.
Truth is, no serious government will introduce such an investment tax credit scheme, and no serious private sector company would embrace it, without strong statutory backing. Which is partly why Executive Order 7 has failed to deliver its desired outcome. It’s not fit for purpose!
Now, let’s turn to the more egregious executive orders, starting with Executive Order 6. In 2018, President Buhari issued Executive Order 6 freezing assets of individuals facing corruption allegations or charges. Reacting to the order, the Nigerian Bar Association said Buhari’s use of executive orders in criminal matters amounted to “decree-making”!
Later, a Federal High Court held that the president had the power to issue Executive Orders “on routine administrative matters”, provided such orders “do not step on the toes of legislative and judicial powers under the constitution.” But that’s precisely what Executive Order 6 did by seeking to freeze “looters’ assets” without a court order. So, the court modified the executive order and directed that those tasked with enforcing it “must, at all times, obtain a court order before seizing any asset.” But the fact that Buhari could contemplate using an executive order to seize assets without a court order shows his administration’s authoritarian streak!
Which brings us to Executive Order 10 that purports to implement Section 121(3) of the Constitution on financial autonomy to the state legislature and state judiciary but does so in a way that utterly undermines the principles of federalism. Essentially, with Executive Order 10, the Federal Government places obligations on state governments and turns its agencies and officials – Attorney-General and Accountant-General – into sheriffs against them! And it does so not through a statute or a constitutional amendment, but an Executive Order!
It was recently reported that after state governors pointed out the constitutional anomalies in the executive order, President Buhari suspended its implementation “pending further consultations.” But who advised him to issue such a perverse order in the first place?
In a recent piece, Sam Amadi, lawyer and former chair of the Nigerian Electricity Regulatory Commission, wrote: “Nigerian presidents don’t have a history of issuing executive orders”, adding that “President Buhari was the first president to issue real executive orders.” But although Buhari is using the American invention called Executive Order with gusto, he has shown little regard for the US Supreme Court’s view that such orders cannot be used to make policy that is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
To be sure, President Buhari’s capricious use of executive orders is an abuse of executive powers and a threat to constitutional democracy and good governance. He must toe the path of legality and constitutionality!
