Weighing Buhari’s Executive Order No. 6
The Executive Order 6 signed by President Muhammadu Buhari on July 5 aimed at seizing assets of corrupt persons and institutions in Nigeria has been eliciting reactions from lawyers and the public.
The order mandates the forfeiture of all asset as proceeds of corruption pending the final determination by 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employing all lawful or statutory means, including seeking appropriate orders necessary, and shall not be transferred, withdrawn or dealt with in any way.”
Observers view the coinages of the phrases used in the order as a ploy usurp the powers of the courts by waiving the requirement to file an interim forfeiture application for their approval, which is contained in the existing powers of the anticorruption agencies.
These Acts of the anti-agencies like the Economic and Financial Crimes Commission (EFCC) Act, 2004 and the Independent Corrupt Practices Commission (ICPC) Act, 2000 makes provisions for asset forfeiture.
For instance, Section 27 (4) of the EFCC Act provides thus: “Subject to the provisions of section 24 of this Act, whenever the assets and properties of any person arrested under this Act are attached, the General and Assets Investigation Unit shall apply to the Court for an interim forfeiture order under the provision of this Act.”
Section 48 (1) of the ICPC Act rovides that: “Where in respect of any property seized under this Act there is no prosecution or conviction for an offence under this Act, the Chairman of the Commission may, before the expiration of twelve months from the date of the seizure, apply to a Judge of the High Court for an order of forfeiture of that property if he is satisfied that such property had been obtained as a result of or in connection with an offence under sections 3 to 19.
Sub-section 2 provides that: “The Judge to whom an application is made under subsection (1) shall direct to be published a notice in the Gazette and in at least two newspapers circulating in Nigeria, which shall be in English Language calling upon any person who claims to have an interest in the property to attend before that court on a date specified in the notice, to show cause why the property should not be forfeited to the Government.”
In his reaction, Barrister E.M.D. Umukoro wondered why the Executive Order would be required where there is already a legislation.
“One also wonders the purpose of the Executive order if not to give naked powers to the government agencies to confiscate any Nigerian’s property on allegations or suspicion of corruption,” he said.
“Executive orders as practice in the U.S is to take care of areas where there no legislation but the government needs to act fast to tackle the issue.
“The question is between the legislation (an Act) and an Executive order which is legal?
“I dare say it is the Act. It has covered the field hence the Executive Order is by the doctrine of covering the field a nullity.”
Speaking in the same vein, Ahmed Raji (SAN) doubted the constitutional validity of the Executive Order No 6 even though it is intended to aid the anti-corruption fight.
“Let us wait and see the take of the judiciary on the development. It is still unfolding,” he said.
Speaking in the same vein, Abeny Mohammed (SAN) said the Executive Order is will ridicule the Doctrine of Separation of Powers, adding that no section of the country’s constitution authorizes the president to make the orders.
“Sometimes I ask myself: Must Nigeria change or amend its Constitution and laws to conform with the President’s impunity in the name of war against corruption?”
However, Barrister Edward Omaga, who cited the existing provisions for the confiscation of illicit assets, said the order is anti-people. He noted that the executive order is draconian and should have no place in a democratic society.
“By obtaining an order of court, you must have found that the person can be indicted based on preliminary investigations; not that the person is already guilty, but that there is a prima facie case established that can lead to a charge. That has been the provision of the law under the EFCC Act.
“So, the executive order which says once you are suspected of a crime the property can be confiscated without going to court to obtain an order to that effect, such order is draconian, uncalled for and not in line with the tenets of laws as far as prosecution of corruption cases is concerned. This order has taken us back to the era of draconian military era where such pronouncements can be made and it becomes binding on the people,” he said.
But former Deputy DirectorGeneral and Head of Campus of the Nigerian Law School in Enugu, Prof. Ernest Ojukwu (SAN) said there is nothing wrong with the Executive Order 6 as long as it is interpreted and implemented based on the existing legal framework.
“Normally, executive orders in this type of constitutional government are supposed to be policy statements that focus agents of government on priorities of government. They are just directives that ensure focus of government agencies on priorities or issues that the administration thinks should be address urgently. So, as long as the actors interpret and implement it based on existing laws, there is nothing wrong with it,” he said.
He said fears of being used against perceived opponents are unfounded because since it must be interpreted and implemented according to existing laws, adding that “anybody who goes against rules and laws must be dealt the same way like the person who abuse rule of law.”
Ojukwu added that it is also untrue that the executive order is taking over the roles of the judiciary, adding that “the executive order issued by the president also directs the officers to take appropriate judicial steps in enforcing the order.”
In support of this submission, Abuja lawyer, Nureyni Sulyman adviced those whose human rights are trampled upon in the course of the order should seek redress in the courts for interpretation.
In support of the order, the Chairman of Special Presidential Investigation Panel for the Recovery of Public Property, Okoi Obono-Obla accused the legislature for taking over the functions of the courts by declaring the president’s executive order as unconstitutional.
“They cannot go to the National Assembly and declare what the president has done as unconstitutional. They are rather taking over the function of the courts. It is the court that should interpret executive orders vis-à-vis the constitution and tell us whether or not the president has exceeded his powers,” he said.
A former president of Business Recovery & Insolvency Practitioners Association of Nigeria (BRIPAN), Dr. Biodun Layonu (SAN) said the executive order, not being a law, is not above the provisions of the constitution. He said, “It is nothing more than a formalization of a presidential or executive instruction. It is not a law. It does not mean that it cannot be tested against any law or against the constitution.”
He said there are existing laws that gives the EFCC the powers to approach the court for an interim order of forfeiture and the property owner has the opportunity to challenge the order. He said the point of concern is for the security agencies not to end up thinking the executive order 6 has clothed with the powers to take laws into their own hands without recourse to the courts.
“The executive order is not saying anything beyond what the existing laws have said. It does not give the investigating agencies any power beyond what the constitution or other legislations have given them. It is like a standing instruction to those under the executives. However, it does not stop anyone affected by it from going to court.
“This order does not mean that these agencies can now clamp down on properties and evict people out without court orders. They must still go and get court orders to confiscate such assets. The executive order is not above the constitution, so you cannot deprive a citizen of Nigeria of certain rights that is given by the constitution without getting some court orders to back up your action,” Layonu added.
On Tuesday, July 10, the Senate summoned the Attorney General of the Federation, Abubakar Malami (SAN) to appear before it to explain the Executive Order No 6.
While waiting for the outcome of the National Assembly summons, Nigerians will also pay attention to the courts for its interpretation of the order.