EXECUTIVE ORDERS AND PRESIDENTIAL POWER IN NIGERIA: COMPARATIVE LESSONS FROM THE UNITED STATES OF AMERICA

Abstract

Since his assumption office, President Mohammadu Buhari has adopted the practice of issuing formalized Executive Orders. This is a new form of exercise of presidential power in Nigeria, which has generated controversy amongst legal and other scholars. However, there seems to be no authoritative judicial reasoning on the validity of Executive Orders in Nigeria. The paper explores the tension between the conception of the President, as a Chief Executive; and Presidential Power, as a derivative of express legal authorization in the Constitution or legislation. The paper argues that the proper lens to consider the validity of Executive Orders in Nigeria is to assess whether it alters the delicate constitutional balance between the legislature and the executive. Building on the insight of the US Supreme Court’s decision in the Youngstown case, the paper argues that Executive Orders not derived from the express authorization of the law are an invalid exercise of presidential power under the 1999 Constitution.