INTRODUCTION

Leadership in Nigeria takes place within the framework of a Federal Presidential republic and representative democracy where the executive power is held by the president. The 1999 constitution of the Federal Republic of Nigeria vests all the executive powers of the federation in the person of the president which can be exercised directly by him or his vice president or members of his cabinet. In the dynamic landscape of Nigerian politics, the question of an outgoing administration's executive orders binding a succeeding government arises frequently. As a democratic nation, Nigeria upholds the principle of continuous governance, but transitions can create uncertainties around inherited policies and directives. In carrying out the administrative functions of the office, the President in a presidential system may issue orders to ministries and agencies setting out government policies, issuing directives or command actions relating to functions of the executive arm. For the purpose of continuity of good governance, the coming into power of a new administration does not expressly terminate an existing executive order made by the outgone administration except where that order is ultra vires, unconstitutional and illegal. This is because executive orders are often grounded in the constitutional authority of the President and are considered part of the institutional memory and continuity of government operations. Abruptly nullifying all previous executive orders could disrupt ongoing policies and initiatives, leading to inefficiencies and uncertainty. Instead, the new administration typically evaluates existing executive orders on a case-by-case basis, considering their legality, effectiveness, and alignment with the administration's priorities. This approach allows for a smooth transition while ensuring that governance remains consistent and responsive to evolving needs and circumstances. However, an executive order issued by the President becomes rather controversial when it appears ultra vires. This is because law-making is ordinarily within the remit of the legislature while the President is empowered to execute laws made by the legislature. Moreover, the 1999 Constitution does not set out to make the Presidency a lawmaking body working in competition against the Legislature. 

 DEFINITION AND NATURE OF EXECUTIVE ORDERS

The expression, “executive order”, is neither defined in the 1999 Constitution nor is it interpreted in any legislation of the National Assembly or House of Assembly of any State. However, the very few Acts of the Legislature that contain the expression ‘executive order’ do not define nor interpret it. The Interpretation Act also does not contain any definition of the expression.  In situations like this where there is no executive, legislative or judicial definition, the enquirer has to turn to the academia for an unofficial but weighty clarification. The American author, K. R. Mayer, defines an executive order as “a presidential directive that requires or authorizes some action within the executive branch. The 10th Edition of the Black’s Law Dictionary defines an Executive Order as “An order issued by or on behalf of the president, 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 are basically directed at the executive branch of government and its agencies. It is not and should not be directed at individuals, although individuals would be invariably affected by it.

THE LEGALITY AND USE OF EXECUTIVE ORDERS

The 1999 Constitution provides for the powers of the president. Where the constitution sets limits to the powers of the President, any executive order outside the express instructions of enabling law will be adjudged invalid. Although executive orders serve essentially as administrative tools, they serve as legislative tools where they create rules, modify laws or set out the parameters for their implementation. It is usually argued that executive orders violate the doctrine of separation of powers which may result in the creation of a monstrous executive. Legal scholars have however justified the use of executive orders in Nigeria by reference to section 5 of the Constitution of the Federal Republic of Nigerian, 1999 (as amended) (“the Constitution”) which vests the executive powers of the Federation and the States on the President and Governors respectively, and extends same to the “execution and maintenance” of the Constitution and all laws made by the national and state legislatures. Section 130(2) of the Constitution further provides “The President shall be the Head of State, the Chief Executive of the Federation 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.

Executive law-making has also been justified by reference to section 315 (2) of the Constitution which empowers the President or the Governor to, modify any existing law to bring it into conformity with the Constitution by an order. This provision was held to be valid in A.G Abia State v A.G Federation (2003) where the Supreme Court held that the powers given under Section 315 (2) of the Constitution “is not an abuse of the principle of the doctrine of separation of powers” but rather “it is essential to giving meaning to an existing law so that the Constitution itself is not abused.” The Supreme Court stated that the two tests for determining the constitutionality of modification to an existing law are: whether the modification order brings the relevant Act into conformity with the provisions of the Constitution; and whether there has been an infraction of the Constitution by the order.

THE BINDING NATURE OF EXECUTIVE ORDERS

The Nigerian Constitution empowers the President to issue executive orders, but their precise legal weight remains a subject of ongoing debate and interpretation. While they hold some authority, they operate within specific boundaries. Primarily, they cannot contradict existing legislation or overstep the executive's constitutional powers. The binding nature of executive orders is hinged on the following;

• The subject matter of the executive order greatly influences its binding nature. Policy-oriented orders addressing general administrative matters typically hold less legal weight and can be readily modified by the incoming government. Take for instance the subsidy removal, this can be altered/changed by a new administration. Quasi-legislative orders, however, implementing existing laws or filling regulatory gaps, might hold more force. Yet, their validity can be challenged in court if deemed to exceed the executive's legal authority. 

• Contractual orders, creating agreements with third parties (e.g other countries), carry more weight due to contractual obligations. However, the incoming administration still holds the power to renegotiate or revoke them on legal grounds or based on national interest.

• Procedural hurdles also play a role. If the outgoing administration followed proper legal procedures and adhered to their authorized powers while issuing the order, it strengthens its validity and reduce the chance of easy reversal.

• Ultimately, the courts stand as arbiters in disputes concerning executive orders. The incoming administration or affected parties can challenge the order's legality, potentially leading to its nullification or modification. This judicial review process adds another layer of complexity to the question of binding nature.

• Beyond legal intricacies, political realities also influence the fate of executive orders. The incoming administration's stance towards the previous government's policies and priorities significantly impacts the order's longevity. If the order aligns with its objectives, it might remain in effect even without strong legal grounding. Conversely, a stark ideological shift could lead to swift changes, regardless of the order's legal merits.

LIMITATIONS OF EXECUTIVE ORDERS

• Executive orders 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 challenged in court.

• Executive orders cannot override the Constitution or Acts of the National Assembly and are 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.

• It cannot restrict the power of the (future) President to amend its provisions. Thus, they can be amended, or 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.

• 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.

CONCLUSION

The binding nature of an executive order in the Nigerian context cannot be determined with a blanket statement. Each case demands a thorough examination considering the subject matter of the specific order, procedural compliance, potential for judicial review, and the incoming administration's political position. Executive orders form an integral part of the Presidential System of Government operating in Nigeria, however, what is required in making executive orders effective tool for positive change, is to ensure that the Executive stays within its range of responsibilities and does not attempt to cross into regions which have been constitutionally delimited to the legislative arm of government and/or other levels of government. The 1999 Constitution does not set out to make the Presidency a law-making body working in competition with the Legislature, but it rather vests the legislative powers of the Federal Republic of Nigeria in the National Assembly to make laws. The Constitution further vests the executive powers in the President to implement these laws. This demarcation of powers reflects the traditional idea that each arm of government is separate and co-equal.