Introduction: A Disturbing Directive
In February 2019, a terse directive from Nigeria’s presidency sent shockwaves through the nation’s legal and political landscape. Security forces were ordered to “shoot to kill” anyone caught snatching ballot boxes. The immediate public reaction was a mixture of outrage and confusion. Opposition leaders condemned it as a “blank cheque for genocide,” while legal experts scrambled to reconcile this command with the black-letter law of the land, which prescribes a mere two-year prison term for the offense. This single incident, though later overshadowed by other events, ripped open a profound constitutional question that remains unresolved: Can a Nigerian president, through an executive order, legally authorize lethal force for an alleged crime that does not carry the death penalty?
This question strikes at the very heart of Nigeria’s democratic experiment, testing the resilience of its constitutional order against the perceived expediency of executive power. It forces us to examine the delicate balance between national security and individual liberty, between the authority of the commander-in-chief and the sacrosanct rights enshrined in the constitution. The answer, as we shall see, is not found in political rhetoric but in a careful analysis of constitutional text, judicial precedent, and the foundational principle that in a society governed by laws, not men, no single individual can be judge, jury, and executioner.
Deconstructing the Constitutional Framework: The Source and Limits of Executive Power
The office of the Nigerian president derives its powers from Section 5 of the 1999 Constitution, which vests executive authority for the federation in him. This power is vast, but it is not absolute. Its primary mandate is the “execution and maintenance” of the Constitution and all laws made by the National Assembly. An executive order, therefore, is not a magic wand for creating new law; it is a managerial tool for implementing existing law within the federal executive branch.
The Supreme Court has consistently drawn a bright red line around this power. For an executive order to be constitutionally permissible, it must adhere to strict principles:
· It cannot create new offenses or penalties (a legislative function reserved for the National Assembly).
· It cannot appropriate funds (a power held exclusively by the legislature).
· It cannot command or interfere with state governments (a violation of federalism).
· Most critically, it cannot contradict an existing Act of the National Assembly or a provision of the Constitution itself.
Any order that crosses these lines is ultra vires—beyond the legal power of the president—and is therefore null and void. The Constitution, in Section 1(3), declares itself supreme, and any law or order inconsistent with it is invalid.
The Irreducible Right to Life and Due Process
At the core of this debate lies Section 33(1) of the Constitution, which states unequivocally: “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.”
This provision is the bedrock of Nigerian civil society. It establishes a clear, non-negotiable sequence:
- A fair trial before a competent court.
- A conviction for a crime for which the law prescribes the death penalty (e.g., murder, treason).
- The pronouncement of a death sentence.
- Its execution by the state.
A “shoot to kill” order for a non-capital offense like ballot snatching, theft, or vandalism shatters this sequence. It collapses all four steps into one arbitrary act by a security agent. It deprives a citizen of their right to a defense, to appeal, and to the presumption of innocence. In the landmark case of Bello v. A.G. Oyo State, the Supreme Court held that even executing a lawfully convicted person while their appeal was pending was unconstitutional. If a confirmed convict on death row retains this right to due process, how much more protection does an untried, alleged offender deserve?
The Legal Tests: When Does an Executive Order Fail?
The judiciary has developed clear tests to determine an order’s validity, particularly for orders that claim to modify existing laws under Section 315(2) of the Constitution. To be constitutional, such a modification must:
- Bring the existing law into conformity with the Constitution.
- Not itself infringe upon any provision of the Constitution.
A “shoot to kill” order would spectacularly fail both prongs of this test. First, it does not bring any law into conformity; it suspends the law entirely. Second, it directly infringes upon Section 33 (right to life) and Section 36 (right to fair hearing). The Supreme Court has been unambiguous on this point. In its commentary on “shoot-on-sight” orders, it has stated that such directives transform security agents into “accuser, investigator, prosecutor, judicial officer and enforcer of the law, all rolled into one,” a clear and unacceptable usurpation of judicial power.
Furthermore, Nigeria’s domestic use-of-force regulations, such as the revised Police Force Order 237, strictly limit the use of lethal force to circumstances of imminent threat to life, for self-defense or defense of another. The nature of the alleged past offense is irrelevant; the legal standard is based on the immediate danger posed by the individual at that moment.
A Path to Challenge: How Citizens and States Can Fight Back
The Constitution provides robust mechanisms to check executive overreach. The legality of any order is not determined by presidential declaration but by judicial review.
· For Citizens and Civil Society: Any person or group whose rights are infringed can file a fundamental rights enforcement suit at the Federal High Court. They can seek a declaration that the order is unconstitutional and an injunction to stop its enforcement.
· For State Governments: If an order federalizes a state’s security apparatus or commands its institutions, the state government can sue the federal government directly at the Supreme Court under its original jurisdiction (Section 232(1)). The court has recently reinforced that outside a constitutionally declared state of emergency, the President has no power to executive authority in a state.
These legal avenues are not merely theoretical. They are the essential pressure valves in a democracy, ensuring that power is always subject to the law.
Conclusion: A Republic of Laws, Not of Men
The “shoot to kill” dilemma is, in essence, a mirage. From a constitutional standpoint, there is no legal dilemma at all. The 1999 Constitution, the rulings of the Supreme Court, and Nigeria’s international human rights obligations all speak with one voice: a presidential order authorizing extrajudicial killing for a non-capital offense is unconstitutional, illegal, and of no legal effect.
The real danger is not in the hypothetical legality of such an order, but in its corrosive effect on the rule of law. Each time a state actor acts on an illegal directive, it normalizes lawlessness from the very institutions meant to uphold the law. It erodes public trust and moves society closer to brute force than reasoned justice.
The strength of Nigeria’s democracy will not be measured by the severity of its executive decrees, but by the vigor with which its citizens, its judiciary, and its subnational governments defend the constitutional order against them. The power to take life is the most solemn authority a state holds. In Nigeria, that authority resides not in the discretion of any one officer, but in the deliberate, transparent, and humane process guaranteed by its Constitution. To preserve that principle is to preserve the republic itself.
What are your thoughts on the balance between executive authority and constitutional rights in Nigeria? Have you observed other instances where this tension has played out? Share your perspectives in the comments below.
Centre for Nigeria Progress 