Tinubu lacks power to alter existing law on oil revenue – NBA

The President of the Nigerian Bar Association, Afam Osigwe (SAN), on Monday, said President Bola Tinubu lacks the constitutional authority to amend or override the Petroleum Industry Act through an executive order.

Osigwe’s position follows controversy over Executive Order 9, which halted revenue deductions by the Nigerian National Petroleum Company Limited and other agencies before remittance to the Federation Account.

Speaking in an interview, the NBA president was unequivocal. “No, he does not. A president cannot, by executive order, modify or alter a law. A president doesn’t have the power,” Osigwe said.

The Presidency had defended the directive, arguing that it is anchored on sections 5 and 44(3) of the 1999 Constitution and is intended to restore revenues constitutionally due to the Federal, State and Local Governments.

Presidential spokesman Bayo Onanuga said the PIA “is not superior to our constitution” and insisted the order was issued to stop deductions that allegedly undermine constitutional revenue provisions.

But senior advocates across the country faulted that position, stressing that only the National Assembly can amend an Act and only the courts can declare a law unconstitutional.

Senior Advocate of Nigeria Lekan Ojo said the PIA, being an Act of the National Assembly, cannot be “amended, altered, abrogated or nullified” by executive fiat.

“Where the law has prescribed a particular thing, the President cannot, by executive order, do the opposite. So, the President does not have the power and cannot use an executive order to amend provisions of the Petroleum Industry Act,” Ojo said.

Paul Obi (SAN) also rejected the notion that the executive could overreach the legislature.

“No, the president does not have the power to overrule or overreach an Act of Parliament through executive orders. No,” he said, noting that the Constitution clearly separates the powers of the executive, legislature and judiciary.

Wale Balogun (SAN) added that an executive order is a subsidiary instrument and “must be traceable to the law at all times”, stressing that inferior legislation cannot override a substantive Act of Parliament.

Dr Wahab Shittu (SAN), in a statement on the scope of executive power, said while section 1(3) of the Constitution renders inconsistent laws void, the determination of such inconsistency rests with the judiciary.

“Although the Constitution declares inconsistent laws void, the determination of such inconsistency is not left to the subjective discretion of the executive,” Shittu said. “It is a matter that falls within the constitutional competence of the judiciary.”

He added that executive orders “are inherently subordinate instruments and cannot override, amend or repeal provisions of an Act of the National Assembly”.

Similarly, Dr Abiodun Layonu (SAN) said, “The moment an Executive Order contradicts the law, it becomes null and void to the extent of the inconsistency with the law.”

The PIA, signed into law in 2021 by former President Muhammadu Buhari, granted NNPCL operational and financial autonomy, including the right to retain certain revenues for reinvestment before remitting proceeds to the Federation Account.

While some members of the organised private sector have backed the executive order as a transparency measure, the legal community remains divided, with the NBA and several senior advocates maintaining that any alteration of the Act must come through legislative amendment or judicial pronouncement.(Guardian)