Jul 19, 2018

Examining The Unconstitutionality Of The Executive Order No.6 | Etiosa Ojomo ESq

1.     On the 6th of July 2018, President Muhammadu Buhari signed the Presidential Executive Order No.6 for the Preservation of Suspicious Assets connected with Corruption and other relevant offences. By the Order the Executive Branch is empowering its agencies to determine a suspicious assets, seize and preserve same, pending a conviction by the court.

2.     While the intention of the presidency in the fight against corruption is commendable, the basis of the executive order through which the presidency seek to achieve this aim is unconstitutional because it amounts to the presidency making a law that classifies as a subsidiary legislation and under the present constitutional ground norm in Nigeria, the presidency cannot under the guise of an executive order usurp the power of the legislature to make laws. 

3.     For the President to make any subsidiary legislation in the country, it must first derive such power from the National Assembly through their power of lawmaking. For the sake of emphasis Section 4(1) Constitution of the Federal Republic of Nigeria (“CFRN”) 1999 as amended provides that “The legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly for the Federation which shall consist of a Senate and a House of Representative.” The power of the Executive arm of government by the tenor of Section 5(1) is to the effect that the executive powers shall extend to the execution of this constitution, all laws made by the national assembly and to all matters with respect to which the national assembly has for the time being to make laws. It is in this light that the presidency has no power to make the Executive Order granting power to its agencies to carry out interim forfeiture of assets.

4.     Furthermore under the Constitution, and our relevant administration of criminal justice Acts and Laws to what extent does the presidency have to order the interim or final forfeiture of assets, the answer is in the negative. According to the Constitution in Section 44(1) “No moveable property or any interest in an immoveable property shall be taken compulsorily and no interest shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by law.

5.     Lastly, in Nigeria legal jurisprudence it is the court that has the power to order interim or final forfeiture of assets suspected to be proceeds of corruption through laws made by the legislature and the presidency cannot usurp such powers by making an executive order granting it same.

By: Etiosa Ojomo Esq.