The history of executive orders in Nigeria is traceable to the constitution of the Federal Republic of Nigeria, 1999 (as amended). This implies that it carries the force of law and can be legally implemented. However, there has been an endless challenge to its constitutionality and enforcement. Some of the contributors, hold the view that only the legislature and not the president, possesses the inherent powers to make laws; therefore, barking orders with any force of law for implementation is tantamount to a breach of the age long principle of separation of powers.
Looking deeply into the 1999 Constitution (as amended), it is clear that state powers in our current constitutional democracy are shared among the three arms of government, i.e the executive, the legislature and the judiciary. It is worthy to note that while the drafters vested legislative and judicial powers in institutions, executive powers are vested in the president. However, both institutions and the office of the President are headed by individuals in a transient manner.
This constitution, like the American constitution enshrines the concept of separation of powers into its structure. The powers of the Legislature, Executive and the Judiciary are contained in Sections 4, 5 and 6 of the Constitution respectively. The constitution however has no explicit provision declaring that the powers of the three branches of government should be separated; the principle then is to guarantee the separate functioning of the branches of government while complementing each other.
I have served as a state governor, a federal legislator (Senator) and now a minister of the Federal Republic. In my years of public service, I experienced the use of the powers contained under Sections 4 and 5 of the constitution and can speak in this regards.
The provisions of section 5(1)(a) of the1999 constitution (as amended) state that the powers “may be exercised by the president directly, or through the vice-president and ministers of the Government of the Federation or officers in the public service of the Federation.”
The constitution further states clearly the scope and purpose of this executive power as “for 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.”
In the case of a state government, the said powers under Section 5(2)(a) of the constitution are to be exercised by the governor directly or through the deputy governor, commissioners or officers of the state. There is however a clear caveat for the state governments not to exercise the powers to “impede or prejudice the exercise of the executive powers of the Federation”
Similarly, the same constitution under Section 315 (2) empowers the president or the governor of a state (as the case may be) to make an order for the modifications of the text of any existing law as they consider necessary or expedient to bring that law into conformity with the provisions of the constitution. This bothers on a particular text in any Act or Law that are at variance with the provisions of the constitution. This principle is based on the concept of constitutional superiority and a clear indication that although the powers of lawmaking are vested in the Legislature, the Executive powers can be used to modify a text in an existing law for the purpose of making it conform with the constitution.
In exercise of his executive powers under Section 5 of the 1999 Constitution of the FRN, then President Olusegun Obasanjo issued (Order) Statutory Instrument No. 9 of 2002, which modified certain provisions of the Allocation of Revenue (Federation Account, etc) Decree (No 106) of 1992, including the sharing formula.
All 36 state governors including me brought the matter before the Supreme Court for interpretation on the constitutionality of the action. The Supreme Court considered the exercise by the president not to be an abuse of the principle of the doctrine of separation of powers, but rather, an important action to preserve an existing law and give meaning to the constitutional provision it contravenes.
President Muhammadu Buhari has issued several Executive Orders since assumption of office. Most of the orders target the economy, the fight against corruption, the development of critical national infrastructure, especially roads and the regularisation or voluntary declaration of offshore assets of Nigerian citizens for the purpose of filing appropriate tax returns. These Executive Orders have shaped the direction of the administration of President Muhammadu Buhari.
Having examined the history of Executive Orders and the usefulness as it were, my focus will now be on the recently signed Executive Oder no. 10 of May 20, 2020, which is for the implementation of financial autonomy for state legislature and judiciary. I envision the Order as a veritable tool for the sustenance and strengthening of our institutions especially constitutionally established bodies.
The concept of separation of powers, which advocates for the independence of the three arms of government will not serve any purpose if the Legislature, and the Judiciary will keep going cap in hand to the executive for handouts to run their affairs. This approach is responsible for the popular slogan referring to state legislatures as ‘rubber stamp’ and a clear case of “the piper dictating the tune”. Furthermore, section 121(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended); provides for the financial autonomy at the state tier of government. To this end a Presidential Implementation Committee is already constituted to fashion out strategies and modalities for the implementation of financial autonomy to satisfy the Constitutional provision on financial autonomy for the two tiers of government at the state level.
Thank you Mr. President, for taking a bold step in ensuring that the other important arms of government at state levels also enjoy their financial autonomy so as to guarantee free, fair and the effective provision of services rendered by these institutions without unnecessary external or executive interference.
The era of inevitability of instability of leadership of state legislatures may be over; Mr. President has strengthened and consolidated the foundation of democracy at the 2nd tier of government. Now is the time for commendation, not condemnation as we mark 21 years of uninterrupted democracy. And so Kudos to Mr President, the father of democratic renewal in the states.
Sen. George Akume, Hon. Minister for Special Duties and Intergovernmental Affairs.