Executive Orders and the Force of Law-Putting the Case of Faith Okafor V Governor of Lagos State in Proper Perspective – Elvis E. Asia

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In response to Governor Wike’s dictatorial demolition of hotels in Port Harcourt purportedly in reliance on an executive order, many have argued that an executive order cannot be a law. Reliance is placed on Faith Okafor v. Governor of Lagos State.

I think we may be reading Okafor’s case out of context.  If a law empowers a governor to make an order, the order so made is deemed to be part of that law. But if a governor makes an executive order simpliciter without any enabling law, it is not a law because it is just a directive on how the executive branch would approach an issue.

The orders made by the governors in response to covid-19 pandemic, including that of Wike,  would qualify as a law because they were allegedly made pursuant to the Quarantine Act. Of course, whether or not the Quarantine Act justifies the scope and form of the orders is another matter entirely and  is not within the scope of the argument here.

However, even where an order is validly made under a valid law,  it must be reasonably justifiable in a democratic society to be constitutional. Thus, any law or an order for that matter that prescribes and enforces punishment is not, in my view, reasonably justifiable in a democratic society to have constitutional imprimatur under section 45 of the Constitution. This is one of the reasons i have issues with the order relied on by Governor Wike.

In Okafor’s case, the executive order was not predicated on any law which empowered the Governor of Lagos State to restrict movement for the purpose of cleaning. On the other hand, the orders being made by the governors in response to covid-19 may be different because it is being made pursuant to a law and in reaction to an emergency situation. There is a difference between an executive order made under an enabling law which allows the governor to do so and a mere executive order which is a directive to the executive branch on policy.

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I strongly believe that the way and manner the court will deal with executive orders allegedly made pursuant to the Quarantine Act will be different from the circumstances presented in Okafor’s case.

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