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Executive Orders have generally crept in to our political lexicon in the last few months.
The apparently strange presidential resort was more
recently popularised by President Maverick and President
Donald Trump of America. Erudite Professor and Acting President of Nigeria, Yemi Osibanjo, SAN,
wasted no time in embracing it here and using it in its most luminous manner, plenitude and amplitude.
Meaning of executive orders
Executive Orders are orders issued by a president
and directed towards officers and agencies of the
government. Executive orders have the full force of law, based on the authority derived from statute or the Constitution itself.
The ability to make such orders is also based on express or implied Acts
of the Legislature that delegate to the president
some degree of discretionary power.
Origin of executive orders
Executive orders have their origin in the United States of America.
The first executive order was issued by George Washington on June 8, 1789, addressed to the heads
of the federal departments, instructing them “to impress me with a full, precise, and distinct general idea of the affairs of the United States” in their fields.
With the exception of William Henry Harrison, all presidents beginning with George Washington in 1789
have issued orders that in general terms can be described
as executive orders. Initially they took no set form.
Consequently, such orders varied as to form and substance.
Constitutional basis of executive orders
The constitutional basis for Executive Order is the president’s broad powers to issue executive directives.
According to the Congressional Research Service, there
is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
But Article II of the U.S. Constitution (which is the equivalent of Section 5 of the Constitution of the
Federal Republic of Nigeria, 1999), vests executive powers in the president, makes him the Commander-in-Chief, and requires
that the president “shall take care that the Laws be faithfully executed.”
Laws can also give additional powers to the President.
The U.S. Supreme Court has held that all executive orders from the President of the United
States must be supported by the Constitution, whether from a clause, granting specific power, or by Congress, delegating
such to the executive branch. Specifically, such orders must be rooted
in Article II of the US Constitution or enacted by the congress
in statutes. Attempts to block such orders have been successful at times when such orders exceeded the
authority of the president or could be better handled through
In Nigeria, as in the United States, the expression, executive
order, is neither defined in the 1999 Constitution nor is
it interpreted in any legislation of the National Assembly or House of Assembly of any state but, like in the USA, it is widely used.
Professor E.O. Okebukola and A.A Kana, define the phrase, as executive order is
a command as: “Executive order is a command directly given by the president to an executive agency, class of persons or body under the executive arm of government. Such a command is in furtherance of government policy or Act of the Legislature. The executive order may require the implementation of an action, set out parameters for carrying out specific duties, define the scope of existing legislation or be a subsidiary instrument within the contemplation of section 37 of the Interpretation Act”.
According to Okebukola and Kana, Executive Orders have legal
force only when they are based on the president’s constitutional or statutory authority.
They are valid only where presidents act within the boundaries of their
constitutional or statutory authority. The enabling legislative or constitutional authority
may empower the president to use Executive Orders to perform
strictly defined roles.
The Legislature or Constitution can also confer wide discretionary power on the president
to issue orders in certain matters. For instance, under Section 315 of the 1999 Constitution,
the president and other appropriate authorities have the power to “make such modifications in the text of any existing law, as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution”.
Underscoring this point, the Supreme Court, held in the case of AG, ABIA STATE but the court
has not got the jurisdiction to take over the functions of such public officer by making
its own order or declaration as against the statutory provisions.”
In A.G. ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT. 224) 396 AT 419, the Supreme Court states thus:-
“In matters involving the exercise of statutory power, the function of courts begins
only when it is alleged that the power has not
been exercised in accordance with the law, once the person or
authority or body on whom the statutory power is conferred has
exercised, its powers under the statute, any citizen of Nigeria, who feels his rights
are infringed thereby can by virtue of Section 6
(6) (b) of the Constitution of the Federal Republic of Nigeria 1979,
challenge the exercise of the power.” (Merchant Bank v. Federal Minister of Finance (1961) All N.L.R. 598; Egbuson v. Ikechukwu (1977) 6 S.C. 7 referred to and followed)
Again in AJAKAIYE V. IDEHAI (1994) 13 NWLR (PT. 364) 8 NWLR 504 AT 525 to 526 the Supreme Court held:
“Where there is a statutory provision for making an order
or declaration and the making of same is reposed
in a named office, whether Minister or Commissioner or
indeed the President of the republic or the Governor of a State, such function cannot
be usurped by the Court. The furtherest, a Court can so is to declare
as to validity or otherwise of that order or declaration of a public officer, but the Court has not got the
Jurisdiction to take over the functions of such public officer by making its own order or declaration as
against the statutory provisions.”
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