A Senior Advocate of Nigeria, Kemi Pinheiro (SAN), has stated that Section 315 of the 1999 Constitution grants the President authority to modify existing laws to ensure they align with constitutional provisions.
In a statement made available to Punch on Tuesday, Pinheiro argued that the transitional provisions of the Constitution confer modification powers on the President as the “appropriate authority.”
He stated, “I believe one could also argue thus: that pursuant to the provisions of the GrundNorm, particularly S.315 and its skillfully drafted provisos, the President can in fact make amendments to the law—dare I say—as he sees fit.”
Citing the relevant sections, he reproduced portions of Section 315, saying, “315. (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be: 315(1)(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and… 315 (2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
“315. (4) In this section, the following expressions have the meanings assigned to them, respectively: (a) ‘appropriate authority’ means: (i) the President, in relation to the provisions of any law of the Federation…”
Despite this interpretation, the senior lawyer clarified that executive orders do not supersede Acts passed by 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.
Explaining further, Pinheiro noted, “First, I understand an Executive Order to be a binding order or directive issued by the President of the FRN or a Governor of a State in Nigeria. The order is usually issued to the executive arm of government, the MDAs, to implement policies and enforce existing laws. Executive orders are not expressly stated in the CFRN, 1999. However, they carry the force of law and are often used for administrative efficiency.”
He continued, “An Act of the National Assembly is a law passed by both the Senate and House of Representatives, and the same is assented to by the President (GCFR). It is, therefore, imperative to note that the National Assembly is saddled with the responsibility to make law (Section 4 of the CFRN 1999 is apposite). This, therefore, means that an executive order, which is not even a law, cannot outplay an Act of the Parliament.”
Pinheiro anchored his position on the principle of constitutional supremacy, adding, “The above could find its stand on the supremacy of our constitution, particularly Section 1(3) of the CFRN 1999. Finally, even if an Act of the National Assembly violates the provision of Section 1(3) of the CFRN, it ought to be declared null and void, as in the case of some provisions of the Petroleum Act.”
His remarks come amid controversy surrounding President Bola Tinubu’s Executive Order halting revenue deductions by the Nigerian National Petroleum Company Limited and other agencies.
The Petroleum and Natural Gas Senior Staff Association of Nigeria had criticised the presidential directive, alleging that it contravenes the Petroleum Industry Act.
Responding to the concerns, the President’s Special Adviser on Information and Strategy, Bayo Onanuga, defended the move, saying critics were misinterpreting the constitutional hierarchy of laws.
“PENGASSAN is focusing on PIA alone. The President’s action is based on the Nigerian Constitution, which PIA violates in allowing the deductions that the President has now stopped. PIA is not superior to our constitution,” Onanuga stated.
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