Except Nigeria jettisons executive legislation through
Executive Order, the country may be heading towards authoritarianism and
possible dictatorship.
This is according to Former Deputy Senate President, Ike
Ekweremadu.
Ekweremadu gave the caution while delivering a paper on
“Executive Order and Democratic Governance” at the ongoing 60th Conference of
the Nigerian Bar Association, NBA, in Abuja on Wednesday.
“Democracy envisages the division of governmental powers into three different arms, each with distinct powers and responsibilities clearly provided for in a country’s grand norm. The philosophy behind this compartmentalisation of powers is the need to preserve the liberty of citizens and prevent the abuse and tyranny by one arm of government over the other.
“Section 4 of the 1999 Constitution provides that the
legislative powers of the Federal Republic of Nigeria shall be vested in the
National Assembly. The National Assembly is empowered to exclusively legislate
for the peace, order, and good government of the federation or any part of it
with respect to any matter on the exclusive legislative list in the second
schedule to the constitution.
“The only section in the Constitution that confers the
executive with some form of quasi-lawmaking powers is section 315 of the
Constitution, which provides that the President or the Governor, as the case
may be, may modify the text of existing legislation, as he considers necessary
or expedient, to bring such law into conformity with the provisions of the
constitution”.
“It must, however, be understood that Section 315 is not a
blanket provision enabling a vicious incursion into the legislative domain of
lawmaking.
“It is first, a transitional provision inserted into the
Constitution upon the return to democratic rule in 1999 to enable the
government to fill in legislative gaps typically expected of a country
transitioning from a military system to democracy. Even more, the authority to
modify legislations must be limited to existing laws and not to enact or make
new laws.
“A proper understanding of the context of Section 315 and
the reason why it was inserted in the first place will reveal that the
provision has duly outlived its usefulness and ought not to remain a part of
our body of laws” Ekweremadu explained.
He regretted that the constitution amendment bill to delete
the provision from the constitution in the 8th National Assembly was not signed
by the President.
He cited Executive Orders 6 and 10 of the President Buhari
administration as examples of overreaching executive orders.
He reminded that much as the President had good intentions
to get the governors to implement the constitutional amendment granting
financial autonomy to States House of Assembly and States Judiciary, Harvard
professors, Steven Levitsky and Daniel Ziblatt, in their book, “How Democracies
Die” had warned that the road to dictatorship is always paved with good
intentions.
“Part of that Executive Order, orders the impoundment of
parts of monthly allocations of any state that fails to remit these monies to
the State Judiciary and State Legislature.
“This does not in any way represent what we amended in the
Constitution. The Order is evidently contrary to the provisions of Section 162
of the 1999 Constitution as amended and the position of the Supreme Court of
Nigeria in the case of Attorney-General of Abia State vs. Attorney-General of
the Federation”, he said.
Ekweremadu called on the NBA and other public interest
groups to act as gatekeepers by seeking the intervention of the courts at the
earliest opportunity against any Executive Orders, which seem to violate
constitutional provisions for the principles of separation of powers to stop
the executive from usurping the legislative powers of the federation.
“The judiciary must be active in the protection of the
well-accepted principle of separation of powers and Nigeria’s choice of
federalism as a most suitable governance model for a plural society such as
Nigeria.
“In fact, the executive should mind their business as is
stated in Section 5 of the 1999 Constitution.
“I also propose that the executive seeks a resolution of
two-thirds of both Houses of the National Assembly if there is a need for an
Executive Order”, he concluded.
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