According to Wikipedia, an online research engine, executive orders are issued by “Presidents of the United States to help officers and agencies of the executive branch manage operations within the government.” It goes on; “at the federal level of government … laws are made almost exclusively by legislation…. The president can issue executive orders pursuant to a grant of discretion from congress, or under the inherent powers that office holds to deal with certain matters which have the force of law.”
We have quoted copiously from the popular online research engine, for a comparative appreciation of the Presidential Executive Order No 6 (PEO6) issued by President Muhammadu Buhari, an action that has raised the alarm in the National Assembly and across the country. That PEO6 is for the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences. By the order, the executive branch of government is empowering its agencies to determine a suspicious asset, seize and preserve same, perhaps pending a conviction by the courts.
In essence, the president is imbuing the executive branch with powers to do an act not already appropriated to it by the legislature, in the war against corruption. Considering that our country is a constitutional democracy, it is appropriate to ask, whether under the 1999 constitution, (as amended), the president has the powers to make what amounts to a subsidiary legislation, as he did by the PE06?
In our view, the president cannot under the guise of a PEO usurp the power to make a legislation, considering that our presidential system of government, modelled after that of the United States of America, operates what is commonly referred to as separation of powers. By that doctrine clearly enshrined in our constitution, the presidential system of government is run on a tripod – the legislature, the executive and the judiciary. The legislature is empowered to make laws, the executive the power to execute laws made by the legislature and the judiciary powers to interpret the laws.
For the executive to make what is referred to as a subsidiary legislation, it must derive such powers from an act of parliament. Any legislation made outside the purview of such empowerment is ultra vires the constitution. For the avoidance of doubt, section 4(1) of the constitution provides: “The legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly for the federation which shall consist of a Senate and a House of Representatives.” The section goes further to invest the state Houses of Assembly with powers to make laws for the states.
Section 5(1)(a) of the constitution on its part, vests: “The executive powers of the federation … in the president and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him directly or through the Vice President or officers in the public service of the federation.” Sub-section (b) provides that the executive power “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.”
Until the legislature donates powers to the executive, the president is not imbued with the power to make a law, which could entitle any of its agencies to seize the assets of citizens without the authority of the court. By section 6(1) of the constitution: “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.” Furthermore, section 6(6) provides that the judicial powers: “shall extend to all matters between persons, or between government or authority and to any person in Nigeria… for the determination of any question as to the civil rights and obligations of that person.”
Again, under the Administration of Criminal Justice Act (ACJA), and other extant laws of the country, it is courts that have the power to order interim or final forfeiture of assets, suspected to be proceeds of corruption. So, from which law did the president derive power to make the purported PEO6? Without a law empowering the president to make such an order, we urge him to quickly withdraw what could be interpreted as executive lawlessness. If he doesn’t, there should be a judicial review, to determine if the president has engaged in a power-grab, which is undemocratic.
Unless stopped, the PEO6 could entitle a partisan president to seize the assets of his political opponents, without an order of court, in the guise of fighting corruption. Such unconstitutional exercise of power could lead to a charge of fascism, particularly in an election period; and we consider it a clear throw-back to the military era.