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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.