Nigerians are divided over the recent Executive Order 6 signed by President Muhammadu Buhari to enable relevant organs of government to seize assets of corrupt persons and institutions undergoing trial at the court
By Anayo Ezugwu
THE Executive Order 6 signed by President Muhammadu Buhari on July 5, aimed at seizing assets of corrupt persons and institutions in Nigeria has generated different .s from Nigerians. While some people criticise the action as abuse of existing laws in the country others support it. The order mandates the forfeiture of all assets as proceeds of corruption pending the final determination by the court. In making the order, the President’s intention is that the assets are protected from dissipation by employing all lawful or statutory means, including seeking appropriate orders necessary, and shall not be transferred, withdrawn or dealt with in any way.
However, the National Assembly has kicked against it, saying that the President could not issue such an order without the input of the legislature and the judiciary. To them, the Order is similar to Decree 2 of 1984, which could be used to witch-hunt, traumatise, harass and victimise perceived political opponents.
While, the House of Representatives constituted an ad-hoc committee with a four-week mandate to investigate all the executive Orders signed so far by the President, including subsidiary legislations, the Senate summoned Abubakar Malami, minister of justice and Attorney-General of the Federation, AGF, to explain the constitutional basis for the order.
Likewise, some lawyers have criticised the Order, saying that the President is seeking to hijack and usurp the powers of both the legislature and the judiciary. They wonder the rationale behind the order when there are sufficient laws to deal with assets suspected to be from the proceeds of corruption.
They expressed the hope that this alleged violation of the constitution by Buhari would be challenged right away as its objective is to convict people even before a court of competent jurisdiction convicts them. Olisa Agbakoba, former president, Nigerian Bar Association, NBA, described the Order as unnecessary and usurpation of legislative powers. He said the president does not need the law to successfully fight corruption. The order, he argued should be withdrawn.
According to Agbakoba, Order 6 is issued pursuant to powers granted by Section 5 of the Constitution. “Under this provision, the president can make orders and so, in answer to the question whether the president can make executive orders, the answer is yes. But the real issue here is what happens when the president exceeds the powers given under Section 5 of the Constitution? The answer is that the executive order will be null and void.
“So, the question is whether the Executive Order 6 exceeds the powers conferred by Section 5 of the Constitution? I reviewed the executive order and my first comment is that the Order was unnecessary as it simply repeats laws, rules and regulations relating to corruption. There are really nothing new and all that is required is to implement existing laws rather than make executive orders.
“The second point is that the Order is a naked usurpation of the legislative and judicial function as it purports to assign to the executive powers to seize corrupt assets and this is clearly the function of the judiciary and legislative organ, in this case, the National Assembly. In summary, Executive Order 6 exceeds the power of the president conferred by Section 5 of the Constitution,” he said.
On his part, Chris Okeke, said the Order is another manifestation of the president’s lack of understanding of the law. “It seems Buhari doesn’t have legal advisers. Section 36 (5) of the 1999 constitution says every person is presumed innocent until a competent court finds him/her guilty … the power to confiscate does not lie with the president, but with the judiciary. What if those whose properties are confiscated are not found guilty at the end of the day?
“For instance, the Supreme Court ruled that Bukola Saraki has no case to answer. What if his properties were already confiscated? It is also a matter of subjudice which says once a matter is before the court, you don’t discuss it until it is concluded. Now matters are in court and the order is made,” he said.
However, Ernest Ojukwu, former deputy director, Nigerian Law School, said the new Order is not asking for the seizure of assets but only asking the relevant agencies to take necessary statutory and judicial steps in doing that. “Mind you the order was not to the security agencies alone, but to departments and others involved. In the American style of democracy, which we are copying, executive orders are made under their law from time to time.
“The principle of executive order is to set policy statements for action. Ordinarily, what the president has asked the security agencies to do are things they ought to do on their own without anybody reminding them. The order clearly dictates how the president wants actions to be done.
“Of course, there have been a lot of criticisms against the federal government for not taking holistic steps in the fight against corruption. So, if he is responding to those criticisms by this executive order, I don’t see how it is politically motivated. There is a mass culture of unethical conducts and practices across the country in private and public sectors and at all levels of government and at different levels of private enterprise. Government has not started addressing any of those factors and of course, those are the areas that need to be addressed,” he said.
Similarly, Lai Mohammed, minister of information and culture, has described the Order as the administration’s most potent weapon against corruption. While defending the constitutionality of the Order at a media briefing in Lagos, on Sunday, July 15, he asked those opposed to it to go to court.
“The truth is that, having realised the potency of the Order in giving muscle to the fight against corruption, the corrupt and their cohorts have become jittery. They have every reason to be. Henceforth, it won’t be business as usual. The war against corruption is a must-win for Nigeria in order to free national re.s for the nation’s development,” he said.
The Executive Order 6 mandates the president to restrain owners of assets under investigation from tampering with them or using their proceeds to pervert justice. For instance, Section 1 (b) of the Order states that a government official or a person acting for and on behalf of such an official, directly or indirectly, engages in corrupt practices such as misappropriation of state assets for personal gain, receives any form of bribe or engages in corrupt practices related to the performance of his/her duties or the award or execution of government contract among others, shall forthwith be subjected to the disciplinary procedure in accordance with the Public Service Rules and investigation by the Code of Conduct Bureau.
Section 5 (a) defines “asset’’ to include all properties, including funds, liquid assets (bank balances), receivables, stocks and bonds held in portfolios, insurance policies, shares in listed or unlisted companies, and all manner of fixed assets and all such assets held directly or indirectly through corporate entities, trust structures and intermediaries;
(b) The term “corruption or corrupt practices’’ means as may be defined under any enactment: (i) any corrupt activity involving matters of corruption generally economic sabotage, human trafficking, drug trafficking and terrorism involving funds or assets in the sum or value in excess of fifty million Naira (N50,000,000) or its equivalent in foreign currency; and (ii) any misappropriation of government asset, corruption related to government contracts or bribery; or (iii) the transfer or the facilitation of the transfer of the proceeds of corruption among others.
Also of note is the first schedule to the Order, which listed 155 specific cases pending in court and persons to whom it applies.
– Jul. 20, 2018 @ 15:25 GMT