One of the many fallouts of the COVID 19 pandemic is the efforts of government to initiate and maintain lockdown of some states in order to slow down person to person transmission of the disease. The lockdown is mainly in the nature of the restriction of movement and the closing down of businesses, offices and public areas at the pain of turning people back home, arrest and isolation of certain individuals and the confiscation of vehicles.

While the conscientious efforts of government at all levels to enforce lockdown for the purposes above stated is appreciated and even commended, there leaves the question as to whether all the means employed by government in  this regard can be considered lawful and even conscientious.

On the 10th of May, 2020, the entire news space of Nigeria was set agog with news that two hotels in Port Harcourt were demolished by agents of the Rivers State Government for flouting Executive Order RVSG No. 6 2020, which Order banned the opening of hotels during the lockdown period. The Rivers State Governor Mr. Nyesom Wike subsequently, both in an interview he granted newsmen and on his official twitter page, defended the demolition as the necessary consequence of flouting a valid Executive Order signed before the lockdown in respect of Obio-Akpor and Port Harcourt City Local Government Areas.

Our concern in this discourse is to examine the nature of executive orders and thereafter question the validity of the demolition in the context of the Nigerian legal environment.

Nature of Executive Orders

It is instructive to note that neither the Constitution of Nigeria 1999 as amended nor any Act of the National Assembly including the Interpretation Act provides any definition for Executive Order. We must therefore rely on secondary sources. The Black’s Law Dictionary, 9th Edition defines it 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.

Further, the United States which runs a similar executive system as Nigeria and which has a long history of the use of executive orders, surprisingly suffers a dearth of a statutory definition of the term.1 However, an American author from the academia has ventured a definition which refers to executive orders as ‘presidential policy  directives to the federal bureaucracy”.2

A consideration of the above definitions would lead to the irresistible conclusion that an executive order emanates from the President or from the executive to another executive agency in furtherance of its statutory functions. It is important to note that the constitutional functions of the President/executive is to give effect to or execute the laws made by the legislature.  This analysis finds support in the views of Nigerian constitutional law experts who state that:

‘an 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.’3

Having established a working definition of an executive order from the foregoing, it must be stated that every executive order has to find its basis within the Constitution or an Act of the National Assembly. This is because the Constitution of the Federal Republic of Nigeria 1999, the grundnorm of Nigerian laws, gives law making powers to the Legislature in Section 4 of the Constitution. Therefore, apart from the instances wherein the legislature, either in the Constitution or any other Act of the National assembly gives powers to the executive to make laws, regulations or provide discretion in the execution of the laws made therein, the executive has no law making powers. Any law made in contravention of the above is stated to be null and void to the extent of the inconsistency.4 Executive orders therefore have legal force and validity only when they are based on and are within the President’s constitutional or statutory authority.5

We have assumed, on the basis of our constitution and in the employment of the principle of covering the field that the executive powers exercised by the President can, in appropriate circumstances, be exercised by the Governor of a state.

Validity of Executive Order RVSG No.6 2020

The first issue for determination here is whether the Executive Order under which the Rivers State Government ordered the demolition of the two hotels received any constitutional or statutory backing.

In the first instance, since an Executive order needs to conform with the requirement of being pursuant to an existing statute, it goes to reason that an executive order needs to state the legislation which provides the basis for its validity.  This, will enable an enquiry into whether or not its effects conform with the spirit and intendment of the principal statute.

Unfortunately, the Executive Order No. RVSG 06 2020 under which the demolition was conducted never provided any reference to any legislation as the basis for its validity. This is the first problem with the Executive Order.

On the other hand, the Quarantine Act is the enabling legislation for the exercise of executive powers towards the control and management of infectious diseases. Section 4 of the Act empowers the President inter alia, to make regulations in this regard. It is instructive to note that Section 8 confers the powers of the President prescribed in Section 4 towards the control and management of infectious diseases on the Governor of a state.  In other words, where the President has not made any regulation regarding the management and control of infectious disease within an area in a state, the Governor may exercise those powers. Since the President did not make any regulations on COVID 19 regarding Rivers State, the Governor would rightly exercise the powers prescribed under Section 4 in this circumstance. Any executive order, made to control the spread of COVID 19, being an infectious disease, ought to have been made pursuant to the express provisions of the Act.

Further, the Quarantine Act prescribes a penalty of N200 and or an imprisonment of not more than six months for any person who contravenes any regulation made by the President or the Governor of a state pursuant to the Act.

Assuming that the Executive Order No. 06 2020 was made pursuant to the Act, the penalty prescribed therein ought to have been made within the scope of those prescribed by the Act. On the contrary, by paragraph 8 (X) (e) of the Order, the penalty prescribed for infraction of the ban placed on the operation of hotels and guest houses is that the government task force would:

‘confiscate and auction any hotel and guest houses operating in defiance of the ban…’

This penalty clears runs contrary to the provisions of the Quarantine Act. From the discussions above, it is clear that the purpose of an executive order is to fill statutory gaps. It is settled by law that no matter the exigencies of public administration, the President should not exercise executive power to issue executive orders to fill gaps which does not exist or which the legislature has spoken by law on how it should be filled.6

Validity of Demolition as Penalty under Executive order No.6 2020

The second issue to determine here is whether the demolition complied with the requirement of the Executive Order No.6 as purported by the State Government.

As has been stated above, the penalty prescribed by the Executive order being relied upon by the government is ‘confiscation’ and ‘auction’.  However, the Governor demolished the building.

The executive act of demolition was never contemplated by the Executive Order. We could delve in to the various theories of punishment which show that demolition is a wasteful option for both the state and the purported offenders, but that is beyond the scope of this discourse.

The point has to be underscored that the Rivers State government ran foul of its own laws. The big question in the minds of observers remains if the Executive Order No. 6 is the enabling regulation for the demolition of the two hotels, why did the task force not restrict itself to confiscation and or auction of the hotel as stipulated in the order? Again, under what law was demolition of the hotel buildings executed? Until these pertinent questions are answered satisfactorily, the demolition of the hotels remain illegal activities of government.

The 1999 Constitution provides for the right to fair hearing in the determination of the civil rights and obligations of a person before a court or tribunal.7 By this provision, before the guilt of a person is legally determined, he is entitled to an opportunity to make representations either in his defence or otherwise to the administering authority.8   This position was successfully canvassed and agreed by the court in the case of GARBA V UNIVERSITY OF MAIDUGURI 9 amongst a multitude of other cases.In the American case of YOUNGSTOWN SHEET & TUBE CO. V SAWYER10, the US President, Harry Truman sought to justify the seizure of private steel mills in the wake of a national emergency. The Court ruled that the President cannot in the guise of exercising executive power, deprive citizens their basic rights such as right to life, property and liberty without following the due process in the Fifth Amendment. The Fifth Amendment of the US Constitution deals with rights to fair hearing and is the equivalent to Section 36 of the Nigerian Constitution. The obligation of this is that no invocation of the executive powers granted the Executive in Chapter 5 of the Constitution, inherent or express power (including the power to protect and maintain the constitution) will validate an executive order that attempts to deprive citizens of their right to life, liberty or property without legislative or judicial authorization.11 The authority for this position include the cases of STITCH VS. ATTORNEY GENERAL OF THE FEDERATION (1986) 5 NWLR 47 and LAKANMI VS. AG WESTERN REGION (1971) IUILR.

By the failure of the Rivers State Government to provide the hotel operators an opportunity to defend themselves, before an executive/administrative panel or the law courts, and by the government having constituted themselves into the accusers and the judge, the government has denied them their constitutional right to fair hearing.

Section 43 of the Constitution guarantees the right of every Nigerian to own immovable property anywhere in Nigeria subject to certain specified instances in which derogation is lawful. Even the instances in which a derogation from the right to property is allowed under Section 44(2), nowhere is it stated contemplated that the property of a citizen of Nigeria would be subjected to wanton demolition, without complying with the relevant requirements under the relevant statutes.

The persons affected by this demolition have a constitutional right to property and any unlawful infraction of this right in the manner executed by the Rivers State Government calls for redress in a court of law either under Fundamental Right Enforcement Proceedings (FREP) or under the law of torts.

SIGNED:

Bright Ogbonna Esq.

Director of Volunteer Services,

The SIFA Human Rights Office

.

References

1Okebukola E., Kana A. ‘Executive Orders in Nigeria as Valid Legislative Instruments and administrative tools’ Nnamdi Azikiwe  University Journal of international Law and Jurisprudence Vol.3 2012 www.ajol.com

2P.Ravens-hansen “Making Agencies follow orders: Judicial Review of Agency Violations of Executive Order 12.291” (1983) Duke Law Journal 285-353 @286

3Okebukola E., Kana A. ‘Executive Orders in Nigeria as Valid Legislative Instruments and administrative tools’ Nnamdi Azikiwe  University Journal of international Law and Jurisprudence Vol.3 2012 www.ajol.com

4Section 1(3) 1999 Constitution of the Federal Republic of Nigeria (as amended)

5Okebukola E., Kana A. ‘Executive Orders in Nigeria as Valid Legislative Instruments and administrative tools’ Nnamdi Azikiwe  University Journal of international Law and Jurisprudence Vol.3 2012 www.ajol.com

6P. Ifeoma, ‘Executive Order and Presidential Power in the Nigerian Constitutional Democracy’ October 17, 2018 www.dnllegalandstyle.com

7Section 36(1)

8Section 36(2) (a)

9(1986) 1 NWLR (PT.18) 550 @ 576

10(343) US 579 (1952)11P. Ifeoma, ‘Executive Order and Presidential Power in the Nigerian Constitutional Democracy’ October 17, 2018