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Executive Order: Re-tooling anti-corruption war



Executive Order: Re-tooling anti-corruption war

Opposition is mounting against the Executive Order 6 of 2018 recently signed by President Muhammadu Buhari to prevent owners of assets suspected to have been fraudulently acquired from using proceeds realized from the sale of such assets to pervert cause of justice. AKEEM NAFIU and TUNDE OYESINA report



Apparently determined to recover N595.4 billion funds allegedly stolen by some politically exposed persons (PEPs), who are facing prosecution, President Muhammadu Buhari this month signed an Executive Order, targeting owners of assets suspected to have been acquired through proceeds of corruption.
Signing the instrument tagged ‘Executive Order 6 of 2018’, on July 5 at the State House, the president disclosed that his action was aimed at stopping owners of such assets from further using their proceeds to pervert the cause of justice or sponsor acts that can be injurious to the state.
President Buhari specifically stated that the Order will prevent any government official from engaging in corrupt practices such as misappropriation of state’s assets for personal gain, receive any form of bribe or engages in corrupt practices related to the performance of his/her duties.
He noted with dismay that the N595.4 billion funds allegedly stolen upon which some Nigerians were being prosecuted was more than funds appropriated for Social Investment Programme in the 2018 budget.
He, however, regretted that the allegedly stolen money also exceeded the N344 billion earmarked for construction and rehabilitation of several roads across the country in the 2018 budget.
He said: “It has thus become necessary to re-kit and re-tool our arsenal to be able to effectively tackle corruption’s perilous counter-attack against the Nigerian state. Accordingly, the Federal Government of Nigeria has declared a national emergency to deal with that crisis. In this regard, the Federal Government of Nigeria in line with its anti-corruption strategy seeks to ensure that the ends of justice is not defeated or compromised by persons involved in a case or complaint of corruption.
“It is in consequence of this that I have decided to issue the Executive Order No. 6 of 2018 to inter alia restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to preserve such assets from dissipation and to deprive alleged criminals of the proceeds of their illicit activities which can otherwise be employed to allure, pervert and/or intimidate the investigative and judicial processes or for acts of terrorism, financing of terrorism, kidnapping, sponsorship of ethnic or religious violence, economic sabotage and cases of economic and financial crimes, including acts contributing to the economic adversity of the Federal Republic of Nigeria and against the overall interest of justice and the welfare of the Nigerian State.”
But there had been a barrage of criticisms particularly on the basis of its illegality notwithstanding the federal government’s intention on the new law.
For instance, barely one week after the president’s assent, the National Assembly voiced its opposition to the document when the Senate summoned the nation’s Attorney -General of the Federation and Minister of Justice, Abubakar Malami (SAN) to appear before it and explain the constitutional rationale behind the Order.
Also, the House of Representatives was not left out as while adopting a motion of urgent public importance moved by Nicholas Ossai (Delta, PDP) and 24 others, called for immediate suspension of the application and implementation of the Executive Order in view of its controversial nature and conflict with relevant provisions of the law.
The lawmakers also resolved to invite the Attorney-General of the Federation and Chairman of Nigerian Law Reform Commission to appear before them with the comprehensive list of all subsidiary legislations published in the federal gazette within two weeks.
Moving the motion entitled “Urgent need to investigate the constitutional compliance of all subsidiary legislations and executive orders by the executive arm of government,” Hon. Ossai said the Executive Order is a clear usurpation of legislative and judicial powers saying it is only a replication of subsisting legislations.
According to him, some existing legislations being replicated by the Executive Order included Section 8 of the Recovery of Public Property (Special Provisions) Act of 1983, Section 330 of the Administration of Criminal Justice Act of 2015 and certain provisions of the Economic and Financial Crimes Commission (EFCC) Act.
He noted further that Section 8 of the Recovery of Public Property (Special Provisions) Act of 1993 specifically vests the Federal High Court with powers to direct or require, prohibit any disposition of property moveable or immovable where a prima facie case had been made against a person.
He likened the Executive Order to the dreaded Decree number 2 of 1984, saying it could be used as an instrument to hunt, traumatize, harass and victimize perceived political opponents.
In his contribution to the debate, a lawmaker from Ondo state, Bode Ayorinde, who identified himself as a member of the R-APC, called on his colleagues to reject the Order.
He said: “Power corrupts and absolute power corrupts absolutely. Section 4 has given the parliament the power to make law.
“The situation whereby the executive usurps the powers of the legislature in the name of executive order is unacceptable. We are in a democracy and there is a clear separation of powers, this should not be allowed.
“We should remind ourselves that we are in democracy. An executive bill can come here. But to now circumvent the rule of law will be an aberration.”

Lawyers speak
Also, some senior lawyers have expressed their dissatisfaction with the president’s action, saying it was an encroachment into the legislature and Judiciary’s arena.
The lawyers while speaking with New Telegraph Law in separate telephone interviews at the weekend sought immediate withdrawal of the Executive Order.
They were of the views that there was no need for the Executive Order as there were subsisting legislations to take care of the president’s concerns.
In his submissions, a Senior Advocate of Nigeria (SAN), Olatunde Adejuyigbe said the president’s action was tantamount to usurping the powers of the judiciary.

He said: “The Executive Order is unconstitutional because the executive cannot play the role of the Judiciary. Knowing our environment, that Executive Order will not be implemented by the president, but by those within the system and it will be abused.
“If government has a solid base to make an accusation that this is an ill-gotten wealth, it should be placed before the court. But it would be illegal to just begin to clamp down on citizens on the suspicion that an ill-gotten wealth is somewhere.
“The point I am making is that if the president want to implement this kind of thing, he should come up with an appropriate bill for the legislature to deliberate upon. I believe the best thing to do now is to withdraw the bill because it can’t go far.”
A law teacher, Prof. Abdul Sherif Kareem differed. He said: “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.”
To Dr. Fred Nwazota, an executive order issued by the President outside a specific mandate by a legislation and a state of emergency must be grounded on some constitutional authority.
He said: “The present presidential executive order specifically claims its authority under Section 5(1)(b). Perhaps, it can be argued that it is nothing more than an administrative directive by the President to the Attorney-General of the Federation and the law enforcement agencies and a notice thereof to the public as the order does not in any way, intend to depart from existing law or to infringe the rights of citizens.”
But a rights activist, Jiti Ogunye, who also expressed deep reservations about the president’s action.
Ogunye said: “I have deep reservations about the Executive Order. The executive branch of government in a federation either at the federal, central or state level has the power to make executive orders.
“In any case, on a day-to-day basis, the executive gives decisions and make orders whether they are codified or gazette. Nobody has any problem with that.
“However, the Executive Order recently signed by the president has far reaching provisions regarding entrenched rights of Nigerian citizens including those undergoing criminal prosecution and investigations who are presumed innocent until the contrary is proved in court. So, we are talking about the right to fair hearing and the right to own movable and immovable property under Sections 36 and 44 of the Constitution respectively.
“The laws that we have including the EFCC Establishment Act, the ICPC Act, the Banks and other Financial Institutions Act (BOFIA), etc have similar provisions regarding interim order of forfeiture. For instance, under BOFIA, the CBN governor has the power to temporarily give an order to freeze an account wherein suspicious funds were lodged pending conclusion of investigations on such accounts. So, these powers donated by our statutes are in the various legislations.
“The question begging for answer therefore is what extra-ordinary measure does the president seek to be taken by the Executive Order 6 of 2018? How would it add bite to the anti-graft war? I want to answer these posers by saying that all the anti-graft agencies are part of the executive arm of government and they can exercise these powers I have already talked about. However, these powers are not absolute because they are subject to the power of the court.
“What this Executive Order 6 of 2018 seeks to do particularly as it relates to constitutionally guaranteed enshrined citizens’ rights is unconstitutional to that extent. The executive cannot by desire, said an account should be frozen or an asset seized because it wants to prevent those assets from being used to block investigations or hamper prosecutions by their owners. This amounts to an attempt to replicate already donated powers to the anti-graft agencies.
“So, for me, this Executive Order 6 of 2018 ought to either be withdrawn because of the unconstitutional aspects of it or in the alternative, it has to be redrafted totally in a way that it would just be a supportive instrument highlighting these powers that are already being exercised by the anti-graft agencies and just giving them a presidential stamp to strengthen them”, he said.
In his own comments, a former General Secretary of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, noted that President Muhammadu Buhari’s action appeared more populist than the one intended to achieve any result.
He said: “The president cannot on his own override the provisions of statutes to usurp legislative powers. That would amounts to an abuse of the powers to make Executive Orders. For instance, the president can give directives to either the EFCC or the AGF in criminal proceedings but he cannot make fresh provisions or procedures that would be directed at both the legislature and the judiciary. That would be very unconstitutional.
“The powers to make Executive Orders are derived from the provisions of the Constitution and it encouraged the president to execute laws made by the legislature. So, the powers must be exercised in line with the existing laws.
“Certain provisions of the Executive Order 6 of 2018, is an aberration. The existing laws are already taken care of these situations. The president’s action appeared more populist than the one intended to achieve any result. If the president is interested in amending the existing laws, he should present the proposal to the National Assembly for them to be incorporated into the existing laws. He cannot on his own embark on law making but he can make Executive Orders to implement the existing laws.”
To the National President of the Campaign for the Defence of Human Rights (CDHR), Malachy Ugwummadu, the Executive Order has the potential of usurping the powers of the Legislature and the Judiciary.
Ugwummadu said: “I recognize that tackling of corruption head on is a major plank of Buhari’s administration but I am also circumspect in believing that in doing that he can afford to arrogate powers that constitutionally belong to the legislature to the executive. There is no gainsaying in the fact that the Executive Order is targeted at preserving assets that were acquired illegally to ensure that they were not dissipated pending the conclusion of the cases in court. But I think we have enough legislation that deal with those situations. Therefore, if the Executive is now dragging issues that are already accommodated by the extant laws to a ridiculous extent, there are chances that we might face an abuse. It is Buhari today, it might not be Buhari tomorrow.
“An Executive Order of this kind has the potential of arrogating both Legislative and Judicial powers to the Executive. Citizens’ rights under Section 44 of the Constitution cannot be completely foreclosed except through judicial intervention.”

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