Aug 1, 2018

Executive Order No 6; Legality And Constitutionality | Eloho Yekovie



                     
             

Abstract

The current Proclamation of President Muhammadu Buhari geared towards the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences in Nigeria has steered up a lot of debate about the President’s actions. This article identifies key legal issues and risks associated with this Proclamation.




Introduction

Professor E.O. Okebukola and A.A Kana defined “Executive order” as a command directly given by the president to an executive agency, class of persons or body under the executive arm of government’’. Such a command is in furtherance of government policy or Act of the Legislature. The executive order may require the implementation of an action, set out parameters for carrying out specific duties, define the scope of existing legislation or be a subsidiary instrument.                       It has full force of law, based on the authority derived from statute or the Constitution itself.

However, it is only valid where the President acts within the boundaries of his constitutional or statutory authority. Executive Orders are subject to judicial review; they can be challenged in whole or in part; and they can be quashed if they lack support by statute or the Constitution.

Legal issues on Executive order 6

The provisions of the Executive Order No. 6 of 2018 on the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences, recently issued by President Buhari has raised serious concerns among

different categories of stakeholders, including civil society groups, lawyers, lawmakers, politicians and many others. Basically, the order gives                                                       the President the power to freeze the assets of anyone who is being tried, investigated or suspected of corrupt practices in this regard without recourse being first made to a court of law and also restrains owners of such assets from carrying out any further transaction on such assets so as not to pervert the investigative and judicial processes. This contravenes Section 6 of the 1999 CFRN; in that, the power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the courts. Therefore, any preservation of assets from corrupt practices as contemplated by the said order must be done within the confines of the rule of law, through powers and duties conferred by already existing statues or through the orders of courts of competent jurisdiction. On that note, it is more expedient to make an application for an order for temporary forfeiture or forfeiture of assets pending the determination of the case as the court would duly examine the circumstances and available evidence.

Secondly, the right of Presumption of innocence as captured in Section 36(5) of the 1999 CFRN which is to the effect that a person accused of a criminal offence is presumed innocent until proven guilty is also contravened. An important question that comes to play in this regard is, “What if those whose properties are confiscated are not found guilty at the end of the day?’’. It therefore flows that the executive order if enforced would serve to confiscate one’s assets without a valid order or conviction by a competent court which is ordinarily empowered to do so taking into cognizance various constitutional safeguards.  Again, this power to confiscate does not lie with the Executive, but with the Judiciary.                                                

Thirdly, Section 43 of the 1999 CFRN which provides for the right of a person to own immovable property anywhere in Nigeria is also contravened. A person who is merely suspected to be in possession of an asset which might have been proceeds of corruption is automatically deprived his right to own and make use of his property immediately the order is activated against him. Hence, his right is violated in the situation where he is found to be innocent of the allegation.

Moreover, the First Schedule of the order also reveals the names of suspects/accused persons whose property the Executive Order purports to seize; this should be seen as being unconstitutional as it amounts to Sub judice; which states that once a matter is before a court, it cannot be publicized until it has been concluded.

Interestingly, an executive order can only be issued to enforce already existing powers, duties and mandates under existing laws. Thus, an executive order cannot be used by the Executive to create new powers, duties or rights or expand existing ones beyond the mandate given by the Legislature. Moreover, there are sufficient legislations and legal procedures that can take care of what the Order intend to achieve. E.g., Sections 20- 34 of the Economic and Financial Crimes Commission (EFCC) Act deals with the forfeiture of assets pending the outcome of a court decision. Similar provisions exist in the ICPC law, Money Laundry Act, Recovery of Public Property (Special Provisions), etc. Thus, it calls to question why this Executive order was issued, what it has come to change or what lacuna it has come to fill in the existing laws warranting its Proclamation. 

In a democracy, the role of the executive arm of Government is to enforce court orders/judgments handed down based on the interpretation of existing laws. Any suggestion to the contrary, as clearly intended by this executive order is a total aberration from the aforementioned provisions of the constitution.

In my opinion, the Executive Order is unconstitutional. Only a valid order of court should and could deprive a person of his right to make use of his property.

It is essential that the Government comes in light with the fact that, this is a democratic dispensation and must follow due process. This Executive Order seeks to usurp the powers of both the legislature and the courts which is contrary to the principles of separation of powers as stated by the Supreme court in PAUL IYORPUU UNONGO v. APER AKU (1983) 2 SCNLR page 332 at 334 and vest it on the executive who can use same at will, as a political instrument, to haunt, harass and victimize perceived political opponents. This amounts to Executive Lawlessness which directly violates both the principle of separation of powers and the constitution itself. The Judiciary should go ahead to quash this executive order as it is well within the lot of the judiciary in its supervisory capacity to ensure that all arms of government keep within their respective areas of powers, privileges and competence under the constitution as stated by the Supreme Court in GOVERNOR LAGOS STATE V CHIEF ODUMEGWU OJUKWU (1986) LPELR-3186(SC).



Concluding Remarks

To this end, in as much as equity cannot suffer a wrong to be without a remedy, one who seeks equity, must also do equity. Indeed, the fight against corruption which is hydra headed is a noble cause. However, there can be no legislative latitude of interpretation placed on the actions of Mr. President in respect of sections 5 and 15(5) of the 1999 CFRN as justifications for this draconian Executive order.




Eloho Yekovie Esq. is an Associate of Triax Solicitors, an indigenous Law Firm with offices in Abuja and Bayelsa state. We are a niche expertise Law firm which comprised of young, hardworking legal practitioners who are making waves in their core areas of competence as well as in continuous legal education and development.

Please visit our website   www.triaxsolicitors.com     or     info@triaxsolicitors.com




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