‘On Executive Orders, separation of powers as enshrined
THE Federal High Court, Abuja, recently upheld the constitutionality of President Muhammadu Buhari’s Executive Orders. The judgment has been eliciting reactions from lawyers, some of whom have vowed to challenge it in higher courts. In an interview with Bridget Chiedu Onochie, an Abujabased Senior Advocate of Nigeria, Kehinde Akinlolu, however admitted that there is a provision for executive orders to be issued. He nonetheless called for caution on the part of the executive so that it does not indirectly assume the constitutional roles of the legislature. He also gave insight into other issues of national interest.
WHAT is your view about the constitutionality of President Buhari’s Executive Orders?
Yes. I belong to the school of thought that you don’t throw away the bath water with the child, and I want to believe that the current fight against corruption by the current administration is what is behind the churning out of these executive orders. But there is a second side to the coin and that is the fact that even where orders are being churned out to fight particular ‘ailments’ within the system, it must be done with the consciousness that the people affected have constitutionally guaranteed rights; which must be provided. We must ensure that constitutional safeguards are not tampered with. Secondly, government of the day must be careful not to leave an impression that those orders as they are being perceived, are not attempts to gag the opposition. Constitutionally, there is a provision for executive orders to be issued but the orders are not issued in vacuum. The executive must also be careful not to get to the situation where they would be doing the job that the legislators are paid for.
If the executive feels strongly about any issue, an executive bill should be sent to the National Assembly where the issue would be thoroughly debated and the National Assembly that is representing every shade of opinion and every segment of this country will come up with a law in the overall interest of the nation, unlike the situation where the President just churns out executive orders almost every day as if we are in a military regime where his roles - the executive and the legislature combined. That is very dangerous to our democracy. The separation of powers as enshrined in the constitution must be jealously guided except if we are saying that we have no business having the legislature, and I don’t believe so. Every arm of government has its assigned roles – the executive should execute the laws as passed by the National Assembly and we know too well that no law would be passed by the National Assembly until it has been thoroughly debated until, public hearings to get the opinions of the people that the law is meant to govern or regulate, are taken into consideration. These days, we just get up and all we get is Executive Order 6, Executive Order 8, Executive Order 12, and so on. It is not good for our democracy, and as I pointed out earlier on, we must also be conscious because the general impression is that all those orders are being churned out in order to gag those in opposition to the government of the day. It is not normal for our democracy. Recently, the executive came up with the list of 50 prominent Nigerians banned from traveling out of the country. Although there was an attempt to deny such a list would it not have amounted to infringement of people’s freedom of movement considering that most of them have not been pronounced guilty by the court of law?
Freedom of movement like every right enshrined in the constitution also has its qualification. That means there is no freedom that is absolute, but for any freedom constitutionally guaranteed by the constitution to be tampered with, it must be through the due process of law. What I am saying is that it is only a duly constituted court of law that can restrain or restrict the freedom of movement of any citizen. However, if a man is a subject of investigation, he can be arrested but there is also a timeline within which that person must be taken to court and be arraigned before a court. You cannot just pick somebody and keep him in detention on the excuse that you are investigating the person, no.
You must get the order of court that will allow you to keep the person longer than the constitutionally guaranteed period which is 48 hours. And so, how can the President issue such an order listing out 50 Nigerians, some of them dead?. Are you going to ask the family not to bury them if they are yet to do so? Or are you going to exhume the bodies and keep them somewhere under lock and key simply because you have an executive order against them? Some of those people on that list have since faced the full hurdle of legal trial. Bafarawa for instance went through the full hurdle of legal trial and he was discharged and acquitted, which means the court has said, “We have examined you, we have examined the exhibits, we have examined your demeanour in the course of the trial and the court has come up with the verdict that you have no case to answer.”
So, are you going to restrict that kind of person or some of the people like the former governor of Nasarawa State, Aliyu Akwe Doma or Justice Umezuruike, who died recently?
With due respect to the people that put that list together because I am sure it was not put together by Mr. President himself, all they have succeeded in doing was embarrassing us as a nation. They have just exposed us and have given the impression to the whole world that we are just a bunch of unserious people because if we do not have record of the people that we are investigating that are dead, we do not have a record of the people we have prosecuted and have been discharged and acquitted and we are still putting them on the list, then, we are not a serious people.
At any rate, I know as a matter of fact that after investigation, most times, all these corruption- related matters, about 99 per cent of the time, the trial judges always make it a condition that the passport of the accused person should be deposited in the court. The law court is the only authority that has the right to tamper with your rights. Your passport is your personal property and it can only be tampered with on the orders of a competent law court. So, I will say that the list is an embarrassment to us as a nation. It is an attempt to breach the fundamental rights of free movement of the persons concerned. It is also an attempt by the executive to lump its over-bloated portfolio with that of the judiciary by pronouncing on who should be allowed to move freely and who should not be allowed to move freely. We should not allow it. And tactfully, there is a denial that the list was never issued in the first instance. That is the story we are getting from the government of the day; that no list was ever issued and if that is the position, it is better for all of us but anything short of that, both now or in the future, the government must be ready to face so many challenges in the law court because I know too well that some of the people involved were already getting set to challenge that executive order in court. So, it was a very wise decision to deny it. Well, I have expected the government to also apologize to us Nigerians for embarrassing us, not just the people whose names appeared on the list. On INEC’S position on Zamfara State over inability to submit a list of candidates before the stipulated time, is there any hope for APC based on the constitution or electoral act?
INEC is an independent umpire. Its independence is guaranteed under the constitution, it is also guaranteed under the electoral act. It does not matter which party is controlling the centre, INEC is expected to be independent and be seen to be expressly and clearly independent. If INEC gave a timeline for the submission of names of candidates and Zamfara State APC did not submit its list of candidates within that timeline, I am sorry, heaven will not fall if in 2019, we don’t have anybody either as APC governor, members of the National Assembly or as members of state house of assembly. The heavens will
Yes. I belong to the school of thought that you don’t throw away the bath water with the child, and I want to believe that the current fight against corruption by the current administration is what is behind the churning out of these executive orders. Each time any step is taken by INEC, there will always be two sides to the story, those that are in support and those that are not in support. So, my counsel to INEC is to do what is right at every point in time, heavens will not fall.