Oluwakemi Adeyemi

Oct 26, 2020

17 min read

THE DYNAMICS OF EXECUTIVE ORDERS IN NIGERIA[1]

1. INTRODUCTION

Nigeria does not seem to have had an history of Executive Orders (hereinafter EOs) before the present administration of Buhari-Osinbajo when Professor Yemi Osinbajo SAN as Acting President issued Executive Order (Promotion of Transparency and Efficiency in the Business Environment ) of 2017 on the 18th of May, 2017. Since then, the President and his Vice as Acting President have issued nine other EOs aimed at achieving various purposes. What seemed to have been known in our law books before their dispensation were delegated legislations, memos by the President as the Chief Executive to Ministries and parastatals under him and not a piece of declaration with the nomenclature ‘Executive Order’.

Since Nigeria proclaims that it operates under the principle of separation of powers where the Legislature enacts laws, the Executive enforces the laws and the judiciary interprets the laws,[2] it is worth considering whether the Executive can by virtue of any proclamation by whatever name so called, create rights and/or abrogate duties. Put in other words, to what extent can the Executive validly make EOs? This will be the thrust of this Paper. The regime of EOs in Nigeria has led to a number of scholarly interventions not least in this regard being a point for discussion during the 60th Annual Convention of the Nigerian Bar Association.[3]

While not attempting to go into the nitty-gritty of each of the 10 EOs, (8 of which may be accessed here), We would attempt a summary of the thrust of each of them.

2. BRIEF ANALYSIS OF THE EXECUTIVE ORDERS ISSUED UNDER THE BUHARI/OSINBAJO ADMINISTRATION

EO №1 attempts to create a regime that makes it easier to do business in Nigeria through various interventions in the Ports, Immigration, Corporate Affairs Commission, creation of a regime of default approvals, etc. EO 1 has been a success if one bears in mind the steady rise of Nigeria in the World Bank’s Ease of Doing Business Rank having been recognised as one of the top ten reformers (though still 31 places below her projection to be within the first 100 on the ranking by 2020[4]). This success can be attributed to the high level political support EO 1 has received through the Presidential Enabling Business Environment Council (PEBEC)[5] as well as the dedication of a secretariat i.e. Enabling Business Environment Secretariat (EBES) to drive the EO as well as other reforms aimed at making Nigeria more business friendly.[6]

EO №2 of 2017 mandates Ministries, Departments and Agencies (hereinafter MDAs) to submit their budget estimates before the end of July of every year. In addition, the Order requires the MDAs to submit their schedule of revenue and expenditure for the next three subsequent years before the end of May every year. The reason for these mandates is to make it easier for the Ministry of Finance and Ministry of Budget & National Planning to prepare the national budget for approval and transmission to the National Assembly.

EO №3 of 2017 mandates MDAs to give preference to locally made products when making their purchases. We recommend that Sections 5 and 6 of the EO should be a continuing obligation as a regular administrative check on compliance with the EO as against the present one-off obligation that it is.

EO №4 created the Voluntary Assets and Income Declaration Scheme that gave a window of 9 months from 1st July, 2017 for people to voluntarily declare their undeclared assets and income for previous years. Such people were by the EO entitled to pay taxes administered by the Federal Inland Revenue Service and States Boards of Internal Revenue.[7] Such taxpayers will not be prosecuted for tax fraud neither will they have to pay accrued interests and penalties. The tax payer will be entitled to spread payment of outstanding liabilities over a maximum period of three years.

EO №5 like №3 mandates MDAs to give a preference to local content but unlike EO 3, it specifically relates to technology and science industry. It created a Presidential Monitoring and Evaluation Council headed by the President as the Chairman with the Vice President as the Alternate Chairman.

EO №6 mandates the Attorney General of the Federation and Minister of Justice as the Chief Law Officer of the Federation to take steps including obtaining relevant orders of Courts for the preservation of suspicious assets connected with corruption and other relevant offences.

EO №7 incentivises the private sector to pick up eligible road projects for construction and/or refurbishment by creating a tax credit equal to the value of the construction and/or refurbishment and an uplift which can be offset against federal[8] tax liabilities while equally permitting the trading of such tax credit. The EO in effect provides justification for the private sector to construct and/or refurbish roads. The Scheme created by the Executive Order is to last for 10 years. When we juxtapose this Scheme with the powers granted the Nigeria Sovereign Investment Authority (NSIA), We find that Section 4(1)(b) of NSIA’s enabling Act[9] created the Nigeria Infrastructure Fund for the development of critical infrastructure in Nigeria that will support foreign investment, economic diversification and growth. Since the NSIA’s funds are not subject to taxation[10] being sovereign wealth and not being a member of private sector, its participation in the scheme created by EO 7 cannot be justified especially if one bears in mind that a person not below the rank of a Director of the Authority must be a member of the Road Infrastructure Development and Refurbishment Investment Tax Credit Scheme Management Committee created by EO №7.[11] However, if one bears in mind that EO 7 permits the trading of Tax Credits, there should not be any reason why a sovereign backed fund (with a considerable pool of funds) as the NSIA should not participate either alone (or together with others) in the scheme for the purpose of ultimately trading its tax credit to the organised private sector while equally providing needed road infrastructure. This in our view agrees with the driving mindset of the drafters of the law especially if one bears in mind Sections 41(5) & 42 of the Act. The former permits the Authority to invest up to 10% of the funds in the Nigeria Infrastructure Fund in any fiscal year in social infrastructure projects which promote economic development in underserved sectors or regions in Nigeria that may present less favourable economic potential. The latter requires the Authority to coordinate its investment priorities with the infrastructure priorities and plans developed by the appropriate ministries and agencies with responsibility over the particular infrastructure asset sector.

We thus recommend that provisions in the EO should be amended[12] to permit the NSIA to, subject to its professional judgement participate in the scheme. Writer Robert Schuller observed poignantly in the fifth of his ten commandments of possibility thinking that: “Some of the greatest ideas are impossible because they are illegal today. You should never violate the law, but do not reject an idea because it is illegal. You might be able to get the law changed!…. A lot of laws on the books today need to be changed.”[13] We recommend this amendment bearing in mind its relative ease compared with an amendment to the NSIA Act in order to make EO 7 more effective.

EO №8 drawing perhaps from the lessons learnt in implementing EO №4, created a window of 12 months commencing from 8th October, 2018 for Nigerians with undeclared offshore assets to voluntarily declare their offshore assets through the Voluntary Offshore Assets Regularisation Scheme (VOARS) while enjoying among others the benefit of paying 35% of the offshore assets in lieu of all outstanding taxes, penalties and interest. It thus goes without saying that EOs 4 and 8 are no longer in force (i.e. no new beneficiary of the scheme can be added though participants under the Scheme will continue to enjoy the benefits) as the window they opened to affected taxable individuals have been closed.

EO №9 was issued by the President to demonstrate Nigeria’s commitment to ending open defecation by 2025 and to put into effect the National Open Defecation Free (ODF) Roadmap.[14] This Order was issued against the backdrop of Nigeria being home to the highest number of open defecation cases in the world with 46 million people. While some writers have opined that this Order is a step in the right direction, they have equally been quick to warn that if government does not backup the EO with actionable steps like building 2 million latrines yearly between 2019 and 2025 (which the government has already promised) and backing this up with necessary orientation programmes especially in areas where open defecation is an acceptable social norm, Nigeria may not end open defecation by 2025.[15]

First page of author’s letter to the Honourable Commissioner for Environment, Lagos State on open defecation and urinating at the Police Barracks close to Conoil filling Station, LASUTH.
Second page of author’s letter to the Honourable Commissioner for Environment, Lagos State on open defecation and urinating at the Police Barracks close to Conoil filling Station, LASUTH.

EO 10 is an attempt by the President to enforce Section 121(3) of the 1999 Constitution (as amended) (which provides greater financial autonomy to States’ Judiciary and Legislature) by purporting inter alia to:

a. make allocation to the State Legislature and Judiciary a first line charge on each State’s Consolidated Revenue Fund (CRF)[16];

b. empower the Accountant General of the Federation to withhold from source the funds of any State that refuses to comply with the said Section 121(3);

c. compel each State Government to create Committees for the enforcement of the Order;

d. compel each State Judiciary to create its budget committee for the enforcement of the Order;

e. mandate in its first three years of being in force “special extraordinary capital allocations for State Judiciary to undertake capital development” of its Complex and Court complexes;

f. create a Presidential Implementation Committee and mandating the Accountant General of the Federation to take appropriate steps to ensure compliance with the Order.

3. LEGAL FOUNDATIONS FOR EXECUTIVE ORDERS

The Black’s Law Dictionary[17] defines an executive order as “an order issued by or on behalf of the President, usually intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.” Executive Orders should thus be no more than delegated legislations deriving their powers from validly made laws of the legislative arm or the Constitution and instructions of the President as Chief Executive directing his officials to carry out certain policies.

It is our contention that the title of a piece of legislation, agreement; head or marginal notes should not be a controlling influence in the construction of the legislation, agreement, etc unless in the case of ambiguity in order to determine the construction that best aligns with the perspective of the lawmakers. It is thus not enough to declare EOs unconstitutional for the sole reason that they are named and styled EOs. One needs to go into the text of the individual EOs to find out whether or not they are ultra vires the powers of the President. This is further underscored by the principle that courts are always guided not by the form of a piece of document or legislation but by its substance. Uwais JSC for instance in NTC Ltd. V. Agunanne[18] observed inter alia that: ‘The marginal note to the Section of the law, which seeks to give indication of the common law applicable, could not by the rules of interpretation, be employed as said to the construction of the Section. The general rule of construction is stated in Maxwell on Interpretation of Statutes, 12th Edition, on pages 9–10, as follows: ‘The notes often found printed at the side of Sections in an Act, which purport to summarise the effect of the Sections, have sometimes been used as an aid to construction. But the weight of the authorities is to the effect that they are not part of the statute and so should not be considered, for they are “inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons.”’’

Having laid this foundation that EOs are not unconstitutional merely because they are styled EOs, it is worth considering how the Constitution defines the power of the President and/or Executive Powers of the Federation. Section 5(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that:

‘Subject to the provisions of this 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.’

Section 130(2) of the Constitution further provides — ‘The President shall be the Head of State, the Chief Executive of the Federation[19] and Commander in Chief of the Armed Forces of the Federation.’ It is submitted with respect that inherent in the powers of the President (as Chief Executive of the Federation) includes the power to issue orders and provide policy guidelines to officials under his control as well as ensure the execution and maintenance of the Constitution, all laws made by the National Assembly and all matters with respect to which the National Assembly can legislate on.

EO №1 showed the readiness of the Executive Arm to make it easier to do business and thus may be a demonstration of the strongest possible political support[20] for the avowed policy of the Buhari-Osinbajo administration to ease constraints on the path of (proposed) businesses. The fruits of this as has already been referenced above are already showing. A question that is worth asking in respect to the regime of Default Approvals it creates however, is how does a private individual demonstrate to the ‘world’, that he has gotten approval for a governmental licence because the government agency did not give him a response within the timeframe the agency had published it would get back to him/her one way or the other on his/her application?

Via some EOs, the President has restated and/or emphasised the need for the implementation of enacted legislations. EO 2 for instance was made not just to enforce compliance with the Fiscal Responsibility Act of 2007, but to also create a stricter regime. It required heads of MDAs to submit their schedule of revenue and expenditure estimate for the next three financial years to the Minister of Finance and the Minister of Budget and National Planning on or before the end of May each year (as against before the end of the second quarter required by the FRA 2007) They are equally expected by the EO to submit their annual budget estimates to the said Ministers before the end of July as against August provided by the FRA 2007.

Some other time, the President has exercised delegated authority to create a legal framework which the National Assembly thought it fit to leave within his discretion like EO 7 which among others purportedly derives its validity from Section 23(2) of the Companies Income Tax Act.

EO 9 in my reckoning is no more than a policy statement. It with respect does not provide actionable steps that are or would be taken in order to achieve its set objective.

4. LIMITATIONS OF EXECUTIVE ORDERS

They cannot purport to enact a law or create a right and/or a duty which is not backed up by an enabling law validly enacted by the legislature. Where they do this, such right and/or duty is only valid until properly[21] challenged in court.

Equally, Presidential EOs cannot override the Constitution, Acts of the National Assembly and subject to whether or not the National Assembly has legislative authority over the subject matter and has delegated relevant law-making powers to the President, laws of States’ Houses of Assembly.[22]

An EO cannot restrict the power of the (future) President to amend its provisions. Thus, they can be amended, repealed by future occupants (or even the same occupant) of the office. However, in order to show political willingness to see the implementation of the Order through and to assure the organised private sector that the word of the President will be his bond, the President especially if the same President or one sponsored under the platform of the same political party may choose not to without reasonable cause amend an Executive Order.

An EO issued by the President cannot restrict the lawful powers of Governors of States. This is so because the Federal System of Government Nigeria operates presupposes that each tier of government has its own set of powers and is free from the direct and intrusive influence of other tiers. Professor Ben Nwabueze for instance conceptualising federalism opined that it: ‘is an arrangement whereby the powers of government within a nation or country are divided between a national, country wide government, and number of regionalised governments in such a way that each exist as an entity separately and independently of the other, and operate directly on the persons and property within its territorial area, possessing a will of its own and apparatus for conducting its affairs, sometimes on matters exclusive to it.[23] Each level of government is in its own way, independent of the other. This agrees with Section 5(b) of the 1999 Constitution (as amended). Thus, while this may now be a moot point because of effluxion of time, to the extent that EO 4 purported to create VAIDS in respect to State Taxes, it was ultra vires the power of the President. In the same vein, it is equally ultra vires the power of the President to direct Governors of State to create mandatory committees as he purported to do via EO 10. The President cannot as he purported to do via EO 9 compel the National Assembly or States’ Houses of Assembly to act in a particular manner. The President can however present before the National Assembly an Executive Bill. He may lobby one or two lawmakers in each of the houses of the National Assembly to sponsor a bill aimed at ending open defecation in Nigeria. He can equally lobby State Governors and members of States’ Houses of Assembly in this regard. He can also through the Annual Allocation Bills he submits to the National Assembly demonstrate his intention to stop open defecation through the allocation of funds needed to build 2 million latrines annually.

Where an EO is an exercise of delegated power, the delegate must act in accordance with the terms of the delegation. For instance, where power is delegated by the legislators to the President, his Attorney General, cannot purport to act under this power and vice versa.

5. ENFORCING EXECUTIVE ORDERS

The President as Head of Government can take political decisions including hinging the appointment and evaluation of political office holders on compliance with the EOs.

Furthermore, Private Individuals who have depended on the EOs to change their positions can rely on the Executive Orders as defences against future governmental decision to enforce their original legal rights which they may have limited by virtue of the Order if they show that they changed their position as a result of the Executive Order. This is based on the principle of estoppel. Thus, a person who on the basis of EO №4 voluntarily declared his previously undeclared assets and paid taxes on them may rely on the EO as a defence against prosecution. The Oxford Dictionary of Law[24] defines estoppel as “a rule of evidence or a rule of law that prevents a person from denying the truth of a statement he has made or from denying fact that he has alleged to exist. The denial must have been acted upon (probably to his disadvantage) by the person who wishes to take advantage of the estoppel or his position must have been altered as a result.” One challenge with this is that estoppel can almost always be used as a defence and not as a cause of action.

Private individuals and/or organisations can equally utilise the instrumentality of the Freedom of Information Act of 2011 to follow up on the extent of the implementation of the EOs by MDAs. They may seek information from the MDAs on specific points that confirm compliance with relevant EOs. The Act sought to make it easier for members of the public to access public records and information to the extent consistent with the interest of the public and the protection of personal privacy. It equally sought to protect serving public officers from adverse consequences of disclosing certain kinds of official information without authorisation. It also laid down the procedures for achieving its purposes.[25]

Government can and should set up an inter-ministerial council/secretariat where people who interface with MDAs charged with the implementation of specific Executive Orders can lay complaints for the purpose of being addressed.

In implementing a problematic, and in my view illegal, and controversial EO like EO 10 (whose object is laudable), political solutions may be employed. For instance, since the ruling All Progressives Congress also rules in 19 States,[26] it can through consultation get the political buy-in of these governors. On the other hand, the Federal Government may force States who are not compliant to comply by making the provision of Federal Government’s projects dependent on carrying out EOs or by arm twisting like deciding not to execute a project in a State unless an EO is carried out especially EO 10.

6. CONCLUSION

It is submitted that EOs form an integral part of the Presidential System of Government which Nigeria has chosen to operate with. What needs to be done at all times in making EOs an effective tool for positive change, is to ensure that the Executive stays within its range of responsibilities and not attempt to cross into regions which have been constitutionally delimited to the legislative arm of government and/or other levels of government. And where it is found that the legal framework does not support growth, necessary amendments with the aim of growth should be advocated for and implemented.

[1] He writes from Lagos, Nigeria. He shares his thoughts on litigation practice in Nigeria, development of stronger legal practice in Nigeria, pension law and administration, building a law practice, etc via Medium and tweets via www.twitter.com/@aoluwakemi17.

[2] See Constitution of the Federal Republic of Nigeria, 1999, s.4–6.ctions 4–6 of the 1999 Constitution (as amended).

[3] https://youtu.be/m8mEV58e52k accessed on the 28th of September, 2020 at about 2:25pm.

[4] See PEBEC’s 2018 Annual Report at page 7. Accessed here on 9th September, 2020 at about 10:59am.

[5] Ibid at page 15. See also Abah, Joe; Strong Organisations in Weak States — Atypical Public Sector Performance in Dysfunctional Environments at pages 61, 66 & 177. In a report by Oyebanji Oyeyinka & Oluwole Adeloye entitled Technological Change and Project Execution in a Developing Economy: Evolution of Ajaokuta Steel Plant in Nigeria, the writers opined that: Perhaps the way to seek continuity is to assume a system that insulates large technological projects from the weak political culture of developing countries.

[6] See footnote 3 above at page 15, 20.

[7] Section 7 of Executive Order №4. To what extent a federal executive order can create rights in respect to matters within the legislative competence of States is doubtful. To be sure, this particular Section would have required the political buy-in of the Governors of States without which it is of no relevance.

[8] Note in this regard, the difference between this EO and EO №4 which is while EO 7 focuses on federal taxes, EO 4 covers both federal and state taxes.

[9] №15 of 2011

[10] Section 57(1) of the NSIA Act.

[11] Section 1 of the First Schedule to EO 7.

[12] Section 1(5) of EO 7.

[13] Robert Schuller, Tough Times Never Last, But Tough People Do (Thomas Nelson Edition 1983) 120–121.

[14] https://waterresources.gov.ng/2019/11/21/president-buhari-signs-executive-order-009-on-the-open-defecation-free-nigeria-by-2025/ assessed on 1st September, 2020 at about 3:45pm.

[15] See: Kalu, R. E. et al in Executive Order 009 to End Open Defecation in Nigeria by 2025: A Review of Implications via https://www.ripublication.com/ijaes20/ijaesv15n1_08.pdf accessed on the 7th of August, 2020 at about 03:45pm.

[16] It need only be said that the said Section 121(3) while making the allocation a charge on the CRF, did not go as far as making it a first line charge.

[17] Eight Edition at page 610.

[18] (1995) 5 NWLR (Pt. 397) 541 at 573

[19] Emphasis are those of the writer.

[20] See Abah, Joe; Strong Organisations in Weak States — Atypical Public Sector Performance in Dysfunctional Environments at page 61, 66, 177.

[21] In using the word ‘properly’, this writer has in mind the principle of locus standi by which only a person who has interest in a dispute can file a suit in respect of it in court before the court will be said to have jurisdiction. In saying this however, it is worth noting that the Supreme Court in Centre of Oil Pollution Watch v. NNPC (2018) 7 SC (Pt. II) 70 at 182 has liberalized the requirement for locus standi in a prospective plaintiff if he can show genuine grievance.

[22] Section 5(2) of the 1999 Constitution (as amended).

[23] Ben Nwabueze, Federalism in Nigeria under the Presidential Constitution of 1979 (Sweet & Maxwell) p. 1 quoted in Kehinde Mowoe, Constitutional Law in Nigeria (Malthouse Publishing Limited) p.

[24] 5th Edition at page 95.

[25] See the Preamble to the Freedom of Information Act 2011.

[26] https://en.wikipedia.org/wiki/List_of_state_governors_of_Nigeria accessed on the 3rd of September, 2020 at about 11:26am.