Governor Seyi Makinde of Oyo State
One of the recurring constitutional questions in Nigeria is the legal status of executive orders and the extent to which elected executives can use them to regulate the lives of citizens without legislative approval.
The issue has once again come to the fore following the decision of the Governor of Oyo State to prohibit the commercial operation of motorcycles during certain hours through an executive order, ostensibly on security grounds.
The question is simple: can a governor create new legal obligations by executive order, or must every executive order derive its authority from an existing law enacted by the legislature?
What Is an Executive Order?
An executive order is not a law. It is an administrative directive issued by the President, Governor, or another executive authority for the implementation of existing constitutional or statutory powers.
In constitutional democracies operating under the separation of powers, legislatures make laws, executives implement laws, and courts interpret laws.
The executive cannot legislate merely because it believes a policy is desirable.
An executive order therefore derives its validity from one of two sources:
- The Constitution itself; or
- An existing statute enacted by the legislature.
If neither source exists, the executive order is vulnerable to being struck down by the courts as ultra vires—that is, beyond the legal powers of the executive.
The Position Under the Nigerian Constitution
The Nigerian Constitution vests legislative powers in the National Assembly and the State Houses of Assembly.
Sections 4(1) and 4(6) of the Constitution clearly provide that legislative powers belong to those elected legislative bodies.
Executive powers are vested separately under Sections 5(1) and 5(2).
The significance of this constitutional arrangement cannot be overstated.
The executive executes the law.
The legislature creates the law.
An executive order cannot ordinarily become a substitute for legislation.
The Supreme Court has consistently held that executive actions must be traceable to constitutional or statutory authority.
An executive order cannot create criminal offences, impose penalties, or restrict constitutional rights unless an existing law authorises such action.
Security Concerns and Executive Powers
Governors frequently invoke security considerations when issuing executive orders.
Security is undoubtedly a legitimate governmental concern.
However, security concerns do not magically convert executive power into legislative power.
The Constitution does not contain a “security exception” allowing governors to legislate whenever they consider it necessary.
Even during emergencies, governmental powers remain subject to constitutional limitations.
Indeed, under the Nigerian constitutional framework, formal emergency powers are principally vested in the President under Section 305 of the Constitution, subject to legislative oversight.
A governor cannot simply declare that security concerns justify the creation of new legal restrictions without identifying the legal authority for doing so.
The rule of law requires more than good intentions.
It requires lawful authority.
The Oyo State Motorcycle Ban
The key question regarding the Oyo State executive order is not whether motorcycle crime exists.
The key question is whether an existing law authorises the governor to impose such restrictions.
If the order merely implements powers already granted under existing traffic, transportation, public safety, or security legislation enacted by the Oyo State House of Assembly, then the order may be legally sustainable.
However, if no such enabling legislation exists, the order begins to resemble legislation by executive fiat.
The constitutional problem becomes even more acute where non-compliance attracts penalties or criminal consequences.
Under the constitutional doctrine of legality, offences and penalties must generally be created by law, not by executive proclamation.
A governor cannot wake up one morning and create a new offence simply by issuing a press release or executive order.
Executive Orders Versus Secondary Legislation
The contrast with parliamentary systems is particularly instructive.
In the United Kingdom, Parliament often enacts primary legislation that expressly authorises ministers to make detailed regulations.
These regulations are known as delegated or secondary legislation.
The authority to make them originates from Parliament itself.
The executive acts only because Parliament has delegated specific powers.
Such regulations remain subject to legislative oversight and, in many cases, parliamentary scrutiny procedures.
Consequently, when a minister issues regulations in Britain, the minister is not creating law independently. The minister is exercising authority previously granted by Parliament.
Many executive orders in presidential systems serve a similar function when properly grounded in statutory authority.
The crucial difference is that the legal authority originates from legislation, not from the executive’s personal discretion.
Can Executive Orders Create New Law?
The short answer is no.
An executive order cannot create new primary legislation.
It may:
- implement existing laws;
- direct government agencies;
- establish administrative procedures;
- coordinate enforcement activities; or
- exercise powers expressly granted by statute.
It cannot:
- usurp legislative functions;
- create criminal offences without statutory authority;
- impose taxes without legislative approval;
- abolish constitutional rights; or
- create an entirely new legal regime unsupported by law.
Where an executive order attempts to do so, it risks being invalidated by the courts.
Do Executive Orders Have Sunset Clauses?
Unlike emergency legislation, executive orders do not automatically expire.
Whether they contain sunset clauses depends entirely on their wording or on the enabling statute.
In many jurisdictions, executive orders remain effective until:
- revoked;
- replaced;
- invalidated by a court; or
- superseded by legislation.
This creates a significant constitutional concern because temporary measures introduced for immediate security purposes can become permanent restrictions if left unchecked.
Legislative oversight therefore remains essential.
Why the Distinction Matters
History teaches that governments rarely surrender powers they acquire during crises.
The constitutional separation of powers exists precisely because every executive believes its objectives are urgent and necessary.
If security concerns alone were sufficient to justify executive lawmaking, legislatures would become largely irrelevant.
The rule of law requires something more demanding.
It requires every governmental action to be traceable to lawful authority.
The proper constitutional question is therefore not whether a governor’s objective is desirable.
It is whether the governor possesses legal authority granted by the Constitution or by legislation enacted by the people’s representatives.
That distinction separates constitutional government from government by decree.
And in a democracy, however pressing the security challenge, government by decree should always remain the exception rather than the rule.
Centre for Nigeria Progress 