When the president makes the law: Executive Order 9, the PIA, and the question of who can stop it – A legal analysis

On February 18, 2026, President Bola Tinubu signed Executive Order No. 9, directing the Nigerian National Petroleum Company Limited (NNPCL) to remit its revenues directly to the Federation Account Allocation Committee (FAAC), and stripping the company of its revenue deduction powers. At a stroke, the President sought to rewrite key provisions of the Petroleum Industry […]

On February 18, 2026, President Bola Tinubu signed Executive Order No. 9, directing the Nigerian National Petroleum Company Limited (NNPCL) to remit its revenues directly to the Federation Account Allocation Committee (FAAC), and stripping the company of its revenue deduction powers. At a stroke, the President sought to rewrite key provisions of the Petroleum Industry Act (PIA) 2021 — a statute duly enacted by the National Assembly and assented to by his predecessor — without the legislature passing a single word of amending legislation.

This is not merely a policy choice. It is a constitutional crisis. The legal questions this Order raises are elementary in theory but explosive in practice: Can a President override a validly enacted statute by executive fiat? The answer, under the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended, is an unambiguous no. Yet the political environment in which this Order has been issued makes the obvious constitutional remedy — legislative challenge — almost certainly unavailable. States and Local Governments, seduced by a surge in their monthly FAAC allocations, will not bite the hand that is now feeding them more generously.

The National Assembly, which has in recent years effectively merged with the Federal Executive as a functional matter, shows no appetite for confrontation. The question therefore is not whether Executive Order 9 is constitutional — it is not — but who, if anyone, has both the standing and the will to say so in court.

*THE LAW IS PLAIN* Section 1(1) of the CFRN declares the Constitution supreme. Section 1(3) provides that if any law is inconsistent with the Constitution, the Constitution prevails, and the other law is void to the extent of the inconsistency. Section 4 vests the legislative power of the Federation in the National Assembly. Section 5 vests executive power in the President — but critically, it conditions that executive power on its being exercised “in accordance with” the Constitution. These provisions, read together, establish a simple hierarchy: the Constitution, then Acts of the National Assembly, then executive action. An Executive Order sits at the bottom of this hierarchy. It derives its authority from the President’s executive power under Section 5 — power that cannot be used to contradict a statute enacted under Section 4. Executive Order 9, by purporting to override Sections 8, 9, and 64 of the PIA — provisions governing NNPCL’s financial structure and the disposition of petroleum revenues — directly conflicts with legislation that is constitutionally superior to it. It is void. This is not a novel or contested proposition. It is the bedrock of constitutional government. The challenge is not the law; it is the politics. *The Political Economy of Acquiscensce* The genius — if one can call it that — of Executive Order 9 lies in how it has engineered its own political immunity.

By routing the Order’s practical effect through an increase in FAAC distributions to States and Local Governments, the Federal Government has created a constituency of beneficiaries with a powerful financial incentive to remain silent. A governor who receives more money every month from Abuja is unlikely to instruct his Attorney-General to file an originating summons challenging the instrument that is enlarging his coffers. The National Assembly, meanwhile, has ceased to function as an independent constitutional organ in any meaningful sense. The rubber-stamp character of recent legislative-executive relations means that the institution which is constitutionally the primary guardian of legislative supremacy will almost certainly neither debate, censure, nor annul this Order — even though it directly usurps the legislature’s exclusive power to make and amend laws. This is what constitutional capture through fiscal inducement looks like in practice. The remedy exists in law.

The problem is assembling the institutional will to deploy it. It falls, therefore, to other actors. *Who Can Act — And How* *• The Labour Unions* PENGASSAN has already publicly condemned Executive Order 9, warning that it threatens the employment security of nearly 4,000 of its members in NNPCL. This is not merely rhetoric — it is the foundation for a cause of action. Under Section 6(6)(b) of the CFRN, Nigerian courts have jurisdiction over disputes affecting civil rights and obligations. PENGASSAN and NUPENG, acting in the interests of their members whose livelihoods are tied to the PIA’s fiscal framework, have clear _locus standi_ to apply to the Federal High Court for a declaration that the Order is unconstitutional and for an interlocutory injunction suspending its operation pending trial.

This is the most immediately viable litigation pathway, and the unions should pursue it without delay. *• Oil-Producing Communities* The PIA’s Host Community Development Trust provisions allocate a percentage of operational expenditure directly to communities in the oil-producing belt. Executive Order 9, by restructuring NNPCL’s financial obligations, threatens to diminish these community entitlements — entitlements that are also reinforced by the constitutional 13% derivation principle under Section 162(2) of the CFRN. Oil-producing communities and the trusts established under the PIA have both statutory and constitutional rights that are directly imperilled.

Unlike State governors, these communities are not dependants of FAAC. They have every incentive to fight, and Nigerian courts have proven willing to hear them. *Civil Society Organisations* Since the landmark decision in Fawehinmi v. Akilu (1987), Nigerian courts have progressively liberalised _locus standi_ in public interest cases. Organisations such as SERAP — which has an enviable track record of securing declaratory judgments against executive overreach — CISLAC, and allied civil liberties groups can institute a public interest action on the grounds that Executive Order 9 violates the rule of law, usurps legislative power, and undermines democratic governance. This is precisely the kind of case such organisations exist to litigate. *The Legal Profession* The Nigerian Bar Association and Senior lawyers have, at their finest moments, served as guardians of constitutionalism. An action filed by the NBA or by Senior lawyer, _acting pro bono publico_ — centred on the straightforward argument that an Executive Order premised on Section 5 of the CFRN cannot override Sections 8, 9 and 64 of the PIA enacted under Section 4 of the same Constitution — would make the constitutional issues impossible for the courts to avoid.

*Private Sector and International Investors* International Oil Companies and indigenous operators entered contracts and made investment decisions based on the fiscal and governance architecture that the PIA established. Executive Order 9 disrupts those legitimate expectations. These actors may seek relief through Nigerian courts on grounds of breach of legitimate expectations and contractual rights, and through international investor-state arbitration under applicable Bilateral Investment Treaties if they suffer material loss. The prospect of international arbitration against Nigeria would focus minds in Abuja considerably. *Opposition Legislators* Minority blocs in the National Assembly cannot numerically defeat the Order through the chamber, but they can force debate, commission formal legal opinions from the Office of the Attorney-General, and use public hearings to delegitimise the Order. Even if the Assembly as a whole lacks the spine to act, a sustained minority can create the political environment within which judicial intervention becomes unavoidable. *The Deeper Danger* It is tempting to view Executive Order 9 as a pragmatic fiscal measure — a device for extracting more from NNPCL for the common pool. That framing misses the constitutional point entirely. The manner of a thing matters as much as the substance.

If the Tinubu administration believes the PIA’s provisions governing NNPCL’s revenue remittances are flawed, the remedy is straightforward: bring an amendment bill to the National Assembly. If the National Assembly agrees, it passes the bill. If the President assents, it becomes law. That is how a constitutional democracy modifies legislation. What cannot be permitted to stand — not merely because it is legally wrong, but because of what it normalises — is the proposition that a President may rewrite statutes he finds inconvenient through the device of an Executive Order. If this Order is not challenged and voided, it will be a precedent.

The next President, and the one after, will know that the legislature is optional — a formality to be observed when convenient, bypassed when not. Nigeria’s democracy cannot survive that lesson being learned and institutionalised. *The Courts Must Speak* The political economy engineered around Executive Order 9 has effectively neutralised the two institutions — the legislature and the sub-national governments — that should be its primary constitutional opponents. This makes the courts the last counter-majoritarian institution standing between the rule of law and executive lawmaking by stealth. The argument for the unconstitutionality of Executive Order 9 is not complex. It does not require innovative legal reasoning or novel jurisprudential development. It requires only that the courts apply the plain text of the Constitution with fidelity.

The harder question is whether they will. PENGASSAN, oil-producing communities, civil society organisations, the legal profession, and conscientious legislators must not wait to find out. The challenge must be filed. The arguments must be made. The courts must be given the opportunity to do what institutions everywhere were designed to do when others fail: to say, clearly and on the record, that no one — not even the President — is above the law.