Presidential Orders: Laws Or Mere Statements

By Kenneth Jukpor

The Acting President, Yemi Osinbajo, signed a very important executive order on port operations; instructing Apapa Port to resume 24-hour operation within 30 days and also admonishing all agencies at the port to harmonize their operations into one single interface station.

While there are no doubts that if the Acting President’s directive works, businesses will save a lot of money, Osinbajo also sounded a warning to touts and corrupt officials at ports. Monies spent as a result of inefficiencies and corruption at the ports would be redirected into more productive ventures, hence, the nation’s economy is expected to rebound significantly.

Although, there is no guarantee that this executive order will not go the same way the last administration’s directive on ports went, Osinbajo seems to have massive political capital to achieve his objectives on ports, and the stakeholders (relevant government agencies and associations) have been seen to make adjustments in their modus operandi to cater for the sweeping port changes.

However, a recent Court of Appeal judgment which ruled that the Nigerian Shippers’ Council (NSC) role as port economic regulator had no legal backing despite a presidential order, has posed a new threat to the sustainability of Osinbajo’s noble executive orders on port operations.

During an exclusive interview with MMS Plus newspaper, Mr. Samuel Vongtau, the Director, Legal Services of the Nigerian Shippers’ Council (NSC) noted that following the Court of Appeal judgment, the presidential order on the ease of doing business at the ports has become a trending issue for deliberation.

“A lot of people have started deliberated on this issue of executive orders. People say that this ruling is going to affect the present presidential orders that are being passed by the ruling government. The issue is that the President has the powers to make presidential orders but the reason why this one is being questioned is only known to those who are questioning it.” Vongtau said.

He expressed worry that when the new presidential orders don’t go according to the interest of some players, they may go to court and say the president has no powers to make executive orders.

“A lot of people have the opinion that this ruling (the judgment) is really going to affect the new presidential orders. The judgment is saying that presidential orders are not strong enough to stand on its own. In other words, they are questioning the president’s ability to make such orders. This is subject to a lot of interpretations. While they claim that NSC port regulatory functions goes against existing legislation, these new orders have not been tested to see where it goes against any law.” Vongtau added.

According to Wikipedia, Presidential Directives, better known as Presidential Decision Directives (or PDDs), are a form of an executive order issued by the President of the United States with the advice and analysis of the National Security Council. The directives articulate the executive’s national security policy and carry the “full force and effect of law”.

While a presidential directive is classified as a law in other climes such as the United States of America (USA), the opinion differs among Nigerian lawyers, MMS Plus newspaper reached several lawyers to get their opinion on the issue.

Mr. Alban Igwe, a lawyer and Deputy National President of the Chartered Institute of Logistics and Transport (CILT) Nigeria, said presidential order is a law.

“Presidential order is considered as a law. It is called an order and it can supersede some laws if they are not fundamental laws. There are fundamental laws that require the National Assembly to be amended but the ease of doing business isn’t classified as a fundamental law. So, as long as it doesn’t negate or goes contrary to any existing law, it is considered as a law.”

“However, if it goes contrary to any existing law, it is the responsibility of the National Assembly to call the president to order. The Executive order has made all port related agencies and stakeholders to be on their toes as they are trying to comply with the new directive. The order is there to ensure that anything that stands as an impediment to the ease of doing business at the ports is removed.” Alban Igwe stated.

However, in his contribution, the President of the Nigerian Maritime Law Association (NMLA) Mr. Chidi Ilogu said that presidential orders have no problems when they bother on administrative issues.

“Whatever the President wants to do has to be of an administrative nature to implement the regulations and policies that work for the smooth running of the country. The executive arm of government (which the President, Vice President, Ministers, etc. are involved in) is for the smooth administration of issues in the society. So, the Vice President’s directive and others are for the smooth running of the ports. They are administrative issues; therefore they are properly within the competence of the executive. So, the President or Vice President can work hand-in-hand with the concerned ministry and the Nigerian Ports Authority can implement that administrative directive.” He said.

Speaking on the possibility of the Appeal Court judgment exposing the nation to anarchy, Ilogu who is the legal counsel to the shipping lines dispelled such fears but he cautioned that due process would have to be followed to give legal backing to executive orders, “the sooner things are done properly, the better” he added.

Meanwhile, Funke Agbo (SAN) who is also a former President of Women’s International Shipping and Trading Association (WISTA) Nigeria told our correspondence that presidential orders need legislation to be enduring.

While the responses on this matter continues to vary from lawyer to another, it should be noted that the Nigerian maritime sector and the nation’s port sector entirely is witnessing some form of sanitization as a result of the executive order issued by the Acting President, Osinbajo to reposition the industry; with this judgment the future looks bleak as people may embrace the loopholes to violate President orders on port operations and go to court to argue that there is no legal backing.