The President of the Nigerian Bar Association, Afam Osigwe (SAN), has stated that President Bola Tinubu lacks the constitutional authority to amend or override the Petroleum Industry Act (PIA) through an executive order.
Osigwe’s position follows controversy surrounding Executive Order 9, which halted revenue deductions by the Nigerian National Petroleum Company Limited (NNPCL) and other agencies prior to remittance into the Federation Account.
In an interview, the NBA president was emphatic. “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, however, defended the directive, arguing that it is anchored on Sections 5 and 44(3) of the 1999 Constitution and aimed at restoring revenues constitutionally due to federal, state and local governments. Presidential spokesman Bayo Onanuga maintained that the PIA “is not superior to our constitution” and said the order was issued to stop deductions allegedly undermining constitutional revenue provisions.
Several senior advocates disagreed, insisting that only the National Assembly can amend an Act of Parliament, while only the courts can declare a law unconstitutional.
Senior Advocate Lekan Ojo said the PIA, as 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.
Another senior lawyer, Paul Obi (SAN), also rejected the notion that the executive could overreach the legislature, 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 that “must be traceable to the law at all times,” stressing that inferior legislation cannot override a substantive Act of Parliament.
Similarly, Dr Wahab Shittu (SAN) argued that while Section 1(3) of the Constitution renders inconsistent laws void, determining such inconsistency falls within the competence of the judiciary, not the executive.
“Although the Constitution declares inconsistent laws void, the determination of such inconsistency is not left to the subjective discretion of the executive. It is a matter that falls within the constitutional competence of the judiciary,” Shittu said.
Dr Abiodun Layonu (SAN) echoed the position, stating that any executive order that contradicts an existing law becomes null and void to the extent of the inconsistency.
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 supported the executive order as a transparency measure, the legal community remains divided, with the NBA and several senior advocates maintaining that any substantive alteration of the Act must come through legislative amendment or judicial pronouncement.
