Executive Powers

Section 5 of the 1999 Constitution of the Federal Republic of Nigeria provides that executive powers of the federation shall be vested in the President and may subject as aforesaid 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; shall extend to the execution and maintenance of this constitutional laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, powers to make laws.
From the above provision of the constitution, constitutional executive mandate, an executive order, can only be issued to enforce an already existing powers, duties and mandates under existing laws to manage staff and resource of executive agencies. An executive order therefore cannot be used by the executive to create new powers, duties or rights beyond the mandate given by the legislature. For example, the executive order on support to local content in Public Procurement was made pursuant to the fulfillment of the domestic preference section of the public procument Act 2007. It is important to note here that the use of executive order by the executive arm of government to encroach on the duties constitutional guaranteed on another arm of government is contrary to the provisions of our constitution, And also a violation of the rule of law.
I am persuaded to declare that the recent Presidential Executive order No.6 of 2018 on “the preservation of suspicious assets connected with corruption and other related offences” is ultra vires, and as such will be void to the extent of its inconsistency with existing laws and the constitution. The power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the courts by section 6 of the 1999 constitution, for the determination of the civil rights and obligations of the citizen. This is further reinforced by the provisions of the constitution, which guarantees that in the determination of civil rights and obligations, fair trial by a court or tribunal established by law and constituted in such a manner to secure its independence and impartiality must be carried out. Preservation of assets therefore, must be done within the confines of the rule of law, through powers and duties conferred by already existing statutes or through the order of courts of competent jurisdiction. It cannot be achieved by an executive order. The Attorney-General knows what to do.

Nkechi Bright-Ewere