It reminds one of Decree No. 4 of 1984, authored by the same Buhari as a military dictator. The order amounts to a vile coup against Nigerians
Mike Ozekhome
INTRODUCTION
The recent announcement of the government’s ban on 50 Nigerians (yet unnamed), is an extreme panicky measure of desperation and obvious descent by this government into totalitarianism, absolutism and fascism. It is highly condemnable for being absolutely unconstitutional, illegal, wrongful, immoral, vindictive, dictatorial, panicky and presumptuous of the victims’ guilt, without any trial or conviction. The order shows a government wallowing in narcissistic righteousness, brazen self-glorification and a false sense of redemptive messianism. It will surely boomerang on the government in this election campaign period and strip the government bare of any pretensions towards democratic credentials. Presumably anchored on Executive Order 6 it made earlier in July, 2018, the recent clampdown on opposition elements and persons suspected to be against the desperate attempt by this government to cling to power at all cost is nothing but a draconian decree, a piece of legislative enactment without a NASS and an unconstitutional judicial pronouncement outside the orbit of a court of competent jurisdiction. It reminds one of Decree No. 4 of 1984, authored by the same Buhari as a military dictator. The order amounts to a vile coup against Nigerians, democracy and constitutionalism. The government by the order, at once, turned itself into an investigator, to trail citizens; law enforcer, to arrest them, deprive them of their cherished right to liberty and freedom of movement, and to monitor and seize their accounts by fiat. All these without a valid court order. Buhari’s government thus becomes the accuser, investigator, prosecutor, judge, jury and even the jailer and prison warder. The government, in one fell swoop, misappropriated, through the imperial order, the powers of the tripartite government – the Legislature, Executive and Judiciary.
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Meaning of executive orders
Executive orders are simply presidential directives issued by the President to agents of executive departments. They are anchored on the executive powers granted by the Constitution to the President to carry out policy matters, and so have the force of law. In the case of Nigeria, section 5 of the 1999 Constitution provides that “5.(1) Subject to the provisions of this Constitution, the executive powers of the Federation:
“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
“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.”
Origin of executive orders
Executive orders originated from the US, wherefrom Nigeria borrowed her presidentialism. Since 1789, more than 13,000 executive orders have been issued by various US Presidents, starting from George Washington, and up to Donald Trump. Article 2 sections (1) and (2) of the US Constitution grants “executive power to the president”, to administer the country. The term “executive order” in Article II, sections 1 and 3 enjoin the President to “take care that laws be faithfully executed” failure to comply with this could lead to impeachment (See Myers v. US, 272 U.C 52).
Executive orders and judicial review in America
In the United States of America, some executive orders came up in the following form and manner: President Abraham Lincoln’s suspension of the writ of Habeas Corpus and the emancipation proclamation during the civil war. President Franklin Roosevelt is acknowledged as the record holder of the most executive orders. In 1942, he issued one that led to the Japanese-American internment camps during world war. In 1948, President Harry Truman used executive orders to integrate the armed forces. When in 1957 crowds prevented the desegregation of an all white Central High School, Dwight Eisenhower dispatched federal troops to the high school in Little Rock, Arkansas, using an executive order.
In the 60s, during the heat period of racial segregation, Presidents John Fitzgerald Kennedy and Lyndon Johnson resorted to executive orders to bar racial discrimination in matters of federal housing, hiring and contracting.
In 1984, President Ronald Reagan used executive order to bar the use of federal funds in advocating for abortion, a move revised by President Clinton in 1993. In 2009, President Barack Obama revoked, by executive order, an earlier 2001 executive order issued by President George W. Bush, which had restricted public access to papers of former presidents. During Barack Obama’s presidency, Obama issued several executive orders halting the deportation of hundreds of thousands of illegal immigrants who arrived the US as children, and raising the minimum wage from $7.25 to $10.10, for workers on federal contracts.
The US judicial branch of government has overturned two important executive orders. In 1952, the US Supreme Court overturned and invalidated an order issued in 1952 by President Harry Truman, which had placed all the nation’s steel mills under federal law, so as to prevent strikes during the Korean War. The Supreme Court reasoned that the order was unconstitutional because it attempted to make law, rather than clarify or further a law already made by Congress or provided for by the Constitution. In 1995, President Bill Clinton issued an executive order, which barred the federal government from contracting with any organization that hires replacement for workers on strike. The US Court of Appeal (District of Columbia), held that the order being regulatory in nature, was preemptive of the National Labour Relations Act, which guarantees employers the right to hire permanent replacements.
In 1803, in the famous case of Marbury vs. Madison, the constitutional concept of judicial review was established, to the effect that the courts were seized with the judicial powers to strike down any executive or legislative act that violates provisions of the Constitution. The US Supreme Court in this cause celebre by John Marshal (of the “Marshal years” fame), held that the new President, Thomas Jefferson, via his secretary of state James Madison was wrong in preventing Kliwam Marbury from taking office as Justice of the Peace for Washington County in the District of Columbia. The Supreme Court ruled that the judiciary’s first responsibility is always to uphold the Constitution. The US Supreme Court has since held that all executive orders by the President must be supported by the Constitution, further from a clause granting specific power, or by Congress delegates such power to executive branch; and that such orders must be rooted in Article II of the US Constitution, or enacted by Congress in statutes.
Executive orders in Nigeria
For those who erroneously believe that the controversial Executive Order No. 6 issued by President Buhari is the first of such in Nigeria, let them be reminded that long ago, in the case of AG Abia State v. AG Federation (2003) 4 NWLR (Pt. 809) 124, at 177, the Supreme Court of Nigeria held that the two tests for determining the constitutionality of modification to an existing law are whether the modification order brings the relevant Act into conformity with the provisions of the Constitution, and whether there has been an infraction of the provisions of the Constitution by the order. In that case, the Supreme Court upheld the validity of the Revenue Allocation (Federal Account, Etc.) (Modification) order (Statutory Instrument No. 9 of 2002) and held that the President rightfully acted pursuant to the provisions of section 315 of the 1999 Constitution and the order which came into effect retroactively, was thus valid.
In May 2017, Acting President Yemi Osinbajo, to whom executive powers had been transferred by President Buhari who was sick on a London hospital bed, under section 143 of the 1999 Constitution, rolled out three executive orders on ease of doing business in Nigeria. Then Osinbajo was applauded because, among others, the executive orders sought to promote transparency and efficiency in the business environment; timely submission by all statutory and non-statutory agencies of annual budgetary estimate; support for local contents in public procurement by the federal government; ease of matters on procuring permits, licenses, tax documents, wavers, visas, port operations, (24 hours services); automation of CAC, etc.
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Kernel of Justice Ijeoma Ojukwu’s judgement
Two lawyers, Ikenga Ugochinyere and Kenneth Udoze, had approached the Federal High Court, Abuja, to void Executive Order No. 6, issued on July 5, 2018, on grounds, among others, that it violates citizens’ rights to fair hearing and to own property, under sections 36 and 43 of the Constitution, since persons being investigated or standing trial, but not yet convicted, are entitled to own property. The judge held that the executive order was constitutional, as the President issued it as a policy directive, which recognised the right of every citizen to approach the court for redress if aggrieved by the enforcement of the order. Unknown to many undiscerning readers or watchers, the judge built into her judgement certain irreducible imperatives that such an order must comply with:
- The forfeiture of assets linked to various offences or ongoing criminal investigations by the government can only be enforced in line with the provisions of the Constitution.
- That the coordinating role imposed on the Attorney-General of the Federation by the executive order was subject to section 174 of the Constitution (dealing with the AG’s powers to commence, continue or discontinue criminal proceedings); and same must be predicated on the existence of facts.
- The execution of such Executive orders must not offend the doctrine of separation of powers entrenched in sections 4,5 and 6 of the Constitution, and as ably propounded by Baron de Montesquieu (a great French philosopher) in 1748.
- That contrary to the contents of the executive order, which appears to give the Attorney-General discretion on when to seek court’s permission to seize a suspect’s property, the AGF must, at all times, obtain a court order before seizing any such assets.
- That such court order could be obtained ex parte.
It is therefore clear, that what the court did was no more than merely validating Executive Order No. 6, in so far as its operation does not impinge on or violate the rule of law, the fundamental rights of citizens, the doctrine of separation of powers, the provisions of the Constitution; and that the forfeiture must not be made without the AGF first obtaining an order of court to that effect.
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To be continued.
Thought for the week
“Executive orders are meant for occasional use, not to force something through that the people’s elected representatives aren’t going to make law.” (Fabrizio Moreira).