I am writing this article as a sequel to my article titled Executive Recklessness and Interference in Sports published on this website. It follows the classic position adopted in law that the holder of an executive office created by statute under our constitution, the Constitution of the Federal Republic of Nigeria 1999 (CFRN) can perform or undertake certain acts, duties and functions or abrogate powers to the office without recourse to the law. This is not only wrong but has no credence within our constitutional democracy. The issue here is not how we feel about the act of government or whether the act is endorsed ad populum, the issue is whether the act of the holder of the executive office in the discharge of the office is sustained and in accordance with the law. The notion that the President or indeed any office holder can do no wrong following the Latin maxim rex non potest peccare is a dated principle which over the centuries is now deemed to be obsolete and redundant. The President cannot do as he likes or as he pleases and any action he takes must be justified and sanctioned in law. It is pertinent to understand the historical context of this maxim. Kings and Queens before the reformation era of the 15th Century in Europe had absolute power in discharging their functions. King Henry VIII who reigned as the King of England from 21 April 1509 to 28 January 1547 described as a Reformer and Tyrant by Derek Wilson in his book of the same title quoting a 16th Century writer notes a tyrant as a person, 'accounteth of all his will as a just law and hath no care either of piety, justice or faith'. Hence to avoid the continuation of tyranny, injustice and unfairness it was quite obvious why this maxim was gradually discarded during the enlightened reformation age.
Presidential Constitutional Powers
In this regard under our constitutional democracy the role of the President is generally provided for in a number of provisions of CFRN 1999. The list is not exhaustive and not limited but generally these are outlined in CFRN 1999 Sections 5 Executive powers, 130 on the office of the President of the Federation, 147 on the appointment of Ministers of federal Government, 148 on Executive Responsibilities of Ministers, 169, 170, 171 on appointment on The Public Service of the Federation, 215 on the Appointment of Inspector-General and control of Nigeria Police Force, 218 on the President as Commander in Chief of the Armed Forces Command and operational use of the Armed Forces, 231 on the Appointment of Chief justices of Nigeria and justices of the Supreme Court, 250 on the Appointment of Chief Judge and Judges of the federal high Court, 302 on the appointment of the Minister of Federal Capital territory, Abuja. Furthermore the President's powers are listed in CFRN 1999 Second Schedule Part I as the chairman of the National Security Council, National Defence Council, Council of State, Nigeria Police Council and the power to appoint to the following Federal Executive Bodies namely Code of Conduct Bureau, Council of State, Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, Independent National Electoral Commission, National Defence Council, National Population Commission, National Security Council, Nigeria Police Council, Police Service Commission, Revenue Mobilisation Allocation and Fiscal Commission. The President also at the commencement of office has to swear in accordance with CFRN 1999 Seventh Schedule an Oath of Allegiance and an Oath of Office to defend, protect and uphold the constitution.
Given that the power of the President is defined by the Constitution or as provided in a statute enacted by the National Assembly any order, directive, proclamation must be grounded in law. The position of the President is not sacrosanct and not above the law. He must at all times abide by the law. The President cannot issue a directive without recourse to the applicable law. Similarly any directive of the President should be in accordance with the law. To simply announce an executive order at a press briefing as in the case of the ban by the President of the country from International Football for two years and institute a committee to oversee the affairs of an institution that is not an establishment of state is unconstitutional. This is not the way executive orders, directives and fiats are pronounced in Nigeria. It is settled that not all decisions of the executive should be referred to the legislative body for exigency, expediency and in the exercise of their powers the executive branch of government has inherent powers to issue orders. However in doing this, the issuance of these orders should follow the requisite statute and be in accordance with the provisions of the constitution. In the case in question, this has not been done as I have searched to date and enquired from sources whether there is any official publication giving notice of the ban. In fact the government has no listing of it on its website www.nigeria.gov.ng - this is not a fully functional site displaying only photographs of the President and Vice President. The same also applies to the official website of the national assembly www.nassnig.org. A key primary source of Nigerian law is the official gazette published by the government whilst it is not expressly defined in CRFN 1999 references are made to the document as well as the official journal of the Houses of the National Assembly (The Senate and the House of Representatives) in Sections 88, 213 and 305. The laws, statutes, orders, decisions, policies, resolutions of the government are published in the official gazette and it is settled that it is a binding primary source of applicable law in Nigeria which the courts take as judicial notice. Once the contents of the gazette are published ignorance of what is published in the gazette can be relied upon as a legal defence. The official gazette is similar to gazettes in use in a host of other commonwealth countries, Mexico and the Federal Register in the United States (US).
Orders by the Executive
The Nigerian Presidential system of government is influenced and borrows extensively from the US Presidential system. The US President issues executive orders, which have the full force as delegated secondary legislation in exercise of the function of the exercise and in pursuance to Acts of the US Congress. In fact President Bush issued an executive order related to Nigeria on 1 July 2003 titled, “Presidential Determination No. 2003-27 Memorandum For The Secretary Of State Subject: Waiving Prohibition on United States Military Assistance to Parties to the Rome Statute Establishing the International Criminal Court Consistent with the authority vested in me by section 2007 of the American Service members Protection Act of 2002, title II of Public Law 107-206 (22 U.S.C. 7421 et seq.),
(3) it is important to the national interest of the United States to waive, until January 1, 2004, the prohibition of section 2007(a) with respect to Albania, Bolivia, Bosnia-Herzegovina, Botswana, Former Yugoslav Republic of Macedonia, Mauritius, Nigeria, Panama, and Uganda, and waive that prohibition with respect to these countries until that date. You are authorized and directed to report this determination to the Congress, and to arrange for its publication in the Federal Register.
The US President executive order is similar to the use of Statutory Instrument (SI) in the United Kingdom (UK) still in use in Nigeria as received English Law and made by the executive branch in Nigeria by powers conferred in the UK by the act of parliament or the devolved assembly in Wales, Northern Ireland and in Nigeria by the acts of the National Assembly or laws of the state house of assembly. SIs could also be placed under the orders in council made by the statutory bodies listed in CFRN 1999.
However the issuance of executive order in the US and SIs in the UK and by extension in Nigeria is subject to judicial intervention and control. Courts in the US, UK and Nigeria can strike out and rule as unlawful an executive order and SI. In the UK, SIs are subject to Section 3(1) of the Human Rights Act (HRA) 1998 which states that, 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights'. This is similar to the provisions of Section 1 (3) CFRN 1999 which states that, 'If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void'. In the US locus classicus case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) also referred to as The Steel Seizure Case, the Supreme Court held that the powers of the President (in this case President Truman executive order placing all steel mills in the country under federal control) was limited in the seizure private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress. The court held the executive order was invalid, as the executive branch of government could not make a law rather than clarifying and acting in furtherance of law of the congress or the constitution.
The President powers can be defined as to whether he has the jurisdiction and competence to abrogate to his office specific powers not provided for in CRFN 1999 and in statute. We should bear in mind that in the context of the facts in issue the enabling acts governing football in Nigeria namely the Nigerian Football Association Decree 101 of 1992 and the Nigeria Football Federation (Amendment) Act does not provide for the intervention of the President in the administration of football in Nigeria. Strictly speaking ipso facto the President has no jurisdiction in law to issue the order in question or indeed any other order including the inauguration or establishment of a body or committee. It is settled that where an office holder has no jurisdictional authority in a subject matter he or she will be acting beyond his powers. More so to be blunt the President has no legal competence to issue the order in question competent in the sense that he has the authority to make certain kinds of decision. Danish Philosopher and Professor of Law Alf Ross opines that competence, 'is the legally established ability to create legal norm (or legal effects) through and in accordance with enunciations to this effect'. The President's competency goes to the heart to how he exercise's his powers of office. In specific terms lex specialis and indeed in general terms lex generalis the President lacks the competence, does not have competence and cannot be said to exercise the competence to issue this order. It should be noted that a declaration and order made by the President in Nigeria when he had no express and implied powers to be do so under the constitution and indeed any other law was deemed unconstitutional, illegal, null and void and of no effect whatsoever by the Supreme Court in Attorney-General of the Federation & Ors v Alhaji Atiku Abubakar & Ors (2007) 4 NILR 202. I do recall that before this decision a number of observers wrongly asserted then that the President was acting within his powers, failing to acknowledge and understand that the powers of the President is not absolute and very much subject to the constitution and any other law that defines the extend and limit of such powers.
In conclusion the words of Supreme Court Justice Louis Brandeis's in Olmstead v. United 277 U.S. 438 (1928) offers a cautionary message on executive power when he said, 'experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent….The greatest dangers to liberty lurk in insidious encroachment of men of zeal, well meaning but without understanding."
*Omoba Oladele Osinuga Esq. an International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe writes from Dagenham Essex UK.