A fear expressed against the EO is the possibility of executive usurpation of legislative powers to make laws, thereby disturbing the principle of separation of powers. The issue is especially acute when presidents use EOs to legislate, for then they usurp legislative powers, thereby raising fundamental concerns about the division of powers.
Following the signing of Executive Order 6 (EO6) by President Muhammadu Buhari, there has been renewed interest in both chambers of the National Assembly and in the general public about the proper use and possible abuse of Executive Orders, with some rising in defence and others seeing this as an executive usurpation of legislative powers and violation of the principle of the separation of powers. The Senate raised the issue through Senator David Umaru (APC, Niger) supported by Senator Shehu Sani (APC, Kaduna).
In the House of Representatives, Rep. Nicholas Ossai led the call for the suspension of the implementation of EO 6. Despite the increased attention, public understanding of the legal foundation and proper uses of EOs in Nigeria is relatively new and infrequent. Thus, the amplified public attention, generally, has been accompanied by confusion and occasional misunderstandings regarding the legality and appropriateness of EOs. While the current debate can be related only to EO 6, it is useful to fully understand the dynamics behind EOs in general, as otherwise the reader may be disappointed to discover that there is no hard and fast rule concerning EOs, as they encompass so many aspects of government that each of them must be considered on a case-by-case basis. Consequently, this article will seek to give a better understanding of EOs in general but may not provide ready or specific answers to questions concerning EO 6.
What Is An Executive Order?
The first task is to define EOs. Unfortunately, neither the Constitution nor the legislature has defined EOs. However, many experts have expressed their understanding, with the most commonly cited being that EOs are directives or actions of the president. In the narrower sense EOs are written documents generally directed to, and governing the actions of, government officials and agencies. They have the force of law and usually affect private individuals only indirectly.
Legal Basis for Executive Orders
There is also no specific provision in the Constitution authorising the president to issue EOs, but the fact remains that they exist and in Nigeria their recent use has been necessitated by the current executive/legislature impasse. Often, Section 5 of the Constitution: “the executive powers of the Federation (a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and (b) shall extend to the execution and maintenance of this 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)…”, and Section 130: “(1) There shall be for the Federation a President. (2) The President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation”, have been understood to be the sole basis for issuing EOs.
Purposes for Issuing Executive Orders
Typically, presidents would issue EOs for: Operational management of the executive branch; operational management of ministries, departments and agencies (MDAs); the carrying out of statutory or constitutional presidential responsibilities or as policy directives that implement or interpret a federal statute, a constitutional provision, or a treaty.
Why Presidents Issue Executive Orders
There is no denying that most EOs stem from a president’s desire to bypass the legislature and since EOs do not require legislative approval, presidents usually resort to them to set policy, while avoiding public debate and opposition. The more unfriendly the legislature, the more likely a president would resort to EOs. Presidents, in many presidential democracies, have used EOs to direct a range of activities. As a result, the EO has become a critical tool in presidential policy making.
Executive Orders and the Seperation of Powers
One of the enduring principles of democracy is that of the separation of powers, which is enshrined in the Nigerian Constitution and is explicit in the provisions of Sections 5, 6 and 7. The separation of powers supports both the executive and the legislature, on the one hand, and reinforces a president’s right or duty to issue a decree, order, or proclamation to carry out a particular power that is truly committed to his discretion by the Constitution or by a lawful statute passed by the legislature. On the other hand, it serves as a check if the president attempts to issue an order regarding a matter that is expressly committed to another branch of government, and might even render the presidential action void. In between, there are twilight zones where principles of the separation of powers may be unclear or ambiguous, particularly when the power is shared by both the executive and the legislature.
A fear expressed against the EO is the possibility of executive usurpation of legislative powers to make laws, thereby disturbing the principle of separation of powers. The issue is especially acute when presidents use EOs to legislate, for then they usurp legislative powers, thereby raising fundamental concerns about the division of powers. In the Constitution, the president’s power to see that the laws are faithfully executed (section 5) refutes the idea that he is to be a lawmaker and limits his functions in the law-making process to the recommendation of laws that he thinks wise and the vetoing of laws he thinks bad. And the Constitution [Sections 4 (1) and (2)] is neither silent nor equivocal about who shall make laws which the president is to execute.
Practical Situations of Using Executive Orders
There are three practical situations in which a president may doubt, or the legislature may challenge, his powers to issue an EO, each with its legal consequences. Briefly stated, the three situations concern EOs that: (1) Are issued pursuant to an express or implied authorisation of the National Assembly. Here, the president’s authority, is at its maximum, for it includes all that he possesses in his own right plus all that the legislature can delegate; (2) are based upon undefined powers and the president acts in absence of either a legislative approval or denial of authority, and relies only upon his own independent powers and the National Assembly has not spoken. But there is a zone of twilight in which he and the National Assembly may have concurrent authority, or in which its distribution is uncertain; and (3) are incompatible with the expressed or implied will of the National Assembly, and thus relying solely upon his constitutional authority. In this last case, his power is at its lowest ebb, for then he is relying on his own constitutional powers minus any constitutional powers of the National Assembly over the entire matter. Such a conclusive and preclusive presidential claim to power must be scrutinised with caution by the judiciary, for what is at stake is the equilibrium of separation of powers established by the constitution.
Sadeeq Garba Shehu, a retired group captain in the Nigerian armed forces, a legislative comparative constitutionalism researcher writes from Kaduna; email: firstname.lastname@example.org.