A Senior Advocate of Nigeria, Kemi Pinheiro (SAN), has said that under Section 315 of the 1999 Constitution (as amended), the President has the power to modify existing laws to bring them into conformity with constitutional provisions.
Pinheiro, in a statement made available to The Punch on Tuesday, argued that the transitional provisions of the constitution confer modification powers on the President as the “appropriate authority.”
Citing Section 315(1), he noted that an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the constitution and shall be deemed an Act of the National Assembly to the extent that it relates to matters within the legislative competence of the federal legislature.
He also referenced Section 315(2), which provides that the “appropriate authority” may at any time, by order, make such modifications in the text of any existing law as considered necessary or expedient to bring that law into conformity with the constitution. Section 315(4)(a)(i) defines the “appropriate authority” in relation to any law of the Federation as the President.
“I believe one could also argue thus: that pursuant to the provisions of the GrundNorm, particularly Section 315 and its skillfully drafted provisos, the President can in fact make amendments to the law—dare I say—as he sees fit,” Pinheiro stated.
However, the senior lawyer clarified that executive orders cannot override Acts of the National Assembly.
“An executive order cannot override an Act of Parliament (Act of the National Assembly) under the Constitution of the Federal Republic of Nigeria 1999 as amended,” he said.
He explained that an executive order is a binding directive issued by the President or a state governor to ministries, departments and agencies to implement policies and enforce existing laws. While not expressly provided for in the constitution, he said executive orders carry the force of law for administrative efficiency but do not have the same status as legislation duly passed by the National Assembly and assented to by the President.
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Pinheiro anchored his position on the doctrine of constitutional supremacy, citing Section 1(3) of the 1999 Constitution, which provides that any law inconsistent with the provisions of the constitution shall be null and void to the extent of its inconsistency. He added that even where an Act of the National Assembly violates constitutional provisions, it must be declared null and void by a competent court.
The comments come amid controversy over the executive order issued by President Bola Tinubu halting revenue deductions by the Nigerian National Petroleum Company Limited and other agencies.
The Petroleum and Natural Gas Senior Staff Association of Nigeria had opposed the directive, accusing the President of violating the Petroleum Industry Act with his revenue retention order.
Defending the directive, the Special Adviser to the President on Information and Strategy, Bayo Onanuga, said critics were misinterpreting the constitutional hierarchy of laws, maintaining that the constitution remains supreme over any statute.