- It’s tool to injure opposition – Babatope
- Action unknown to constitution – Lawyers
- President acted constitutionally – Sagay, Junaid Muhammad
Desmond Mgboh (Kano), Omoniyi Salaudeen, Onyedika Agbedo (Lagos)
Last Thursday’s signing by President Muhammadu Buhari of the Executive Order No. 6 of 2018 on the Preservation of Assets connected with serious corruption and other relevant offences has generated heated arguments amongst eminent lawyers and other Nigerians.
While some of them believe the president wants to usurp the powers of the National Assembly to make laws for the country by using the Executive Order to strengthen the anti-corruption crusade of his administration, others think otherwise.
Some of the lawyers who spoke with Sunday Sun on the issue maintained that only the National Assembly (NASS) is empowered to make laws for the country, stressing that there are already enough laws that could be used to prosecute the war against corruption.
They also raised concerns on the applicability of the Executive Order, raising the alarm that the executive could abuse it.
The Executive Order seeks to restrain owners of assets under investigation from carrying out any further transaction on such assets.
With the coming into effect of the Order, President Buhari hopes to swoop on the assets said to have been corruptly acquired at home and abroad by top government officials directly and through their fronts in and outside government over the years.
Looking at the new Order, the Second Vice President of the Nigerian Bar Association (NBA), Monday Onyekachi Ubani, told Sunday Sun that the 1999 Constitution has no provision for Executive Orders, which has the force of law.
He said: “Under our laws, I don’t think there is any provision that says the president can issue an Executive Order, which has the force of law. In our democracy, if there is any policy or anything that the president wants to have the force of law, he must take that particular matter before the National Assembly for proper enactment and then it becomes a law. Executive Orders are just like resolutions; their binding force is something that needs to be interrogated. We should be able to test these things in court. The best thing to do is that if the president now wants to rule by Executive Orders, bypassing the National Assembly, people who are concerned should bring this matter before the judiciary to know whether such Executive Orders have the force of law.”
Ubani, who chairs the committee on Access to Justice, Judiciary and Electoral Process at the African Bar Association, expressed his support for the war against corruption, but noted that the rule of law should be followed in dealing with issues of corruption.
“I am not against the fight against corruption. But we have a constitution where respect to rights is provided, including right to own property, right to liberty and all that. These are constitutional rights.
So, if constitutional rights do exist, there is no other law let alone Executive Order that can take away that right. So, if anyone is suspected and has not been convicted and you freeze his account or seize his property, then that is another thing we need to check.”
He said that there are extant laws in the country, which allow for the temporary forfeiture of assets suspected to be proceeds of crime and wondered why the president had to issue the Executive Order.
“The reality today is that if anyone is accused of crime under the EFCC and ICPC Acts, his property can only suffer what we call interim forfeiture pending the time he is convicted. That will suffice, so I don’t understand the purpose of this Executive Order. Is it trying to replace the enactment of substantive laws by the legislature? Is it trying to aid the ones already in existence by making ancillary provisions for them? So, we need to understand the context under which the Executive Order was made. Laws are laws; executive orders are executive orders; constitutional rights are constitutional rights. Now, the position of the law is that constitutional rights cannot be taken away by any law let alone executive order. In the ranking of laws, the constitution is number one, National Assembly Act is number two; executive order is not legislative order. So, for whatever it is, it cannot rank over legislative acts. An Executive Order cannot run superior to the enactment of an act. It cannot also run contrary to a constitutional right,” he said.
Speaking in the same vein, lawyer and human rights activist, Malachy Ugwumadu, said there is enough legal legislations and procedure to deal with cases of corruption in the country, warning that the Executive Order could be abused.
He said: “I recognise and acknowledge that a major plank of this administration is the fight against corruption. Indeed, they rose to power on the crest of their avowal to tackle corruption head on. Pursuant to that, the president has taken proactive steps, including issuing Executive Orders. But the government must critically remain circumspect in adopting such an approach if we are determined to practice constitutional democracy. I make my point clear by saying that there is enough legal legislation and procedure to deal with what the president has come out with as Executive Order.
“First and foremost, the concept of an Executive Order, if abused, amounts to serious usurpation
of the legislative powers of the National Assembly. Now, there is the Interim Forfeiture Act, by which you can immediately arrest and forfeit temporarily assets that are suspected to be proceeds of a crime pending the determination of a matter. So, an executive order, which in a sense encroaches on the legislative powers of the parliament and also expands the executive powers of the government to include legislative powers, creates a form of diarchy that obtains only in military regimes.
“Now, to what extent could such an Executive Order, which is not a legislation, be prone to abuse
if it is mainly going to depend on the suspicion of a government that is already wired for corruption investigation? It could be abused in the sense that it could be applied against persons you don’t like.
It could be applied against persons with whom you have one axe or the other to grind; it could be applied against persons who are just victims of wrong suspicion; it could also be applied against people who are genuinely corrupt, but those people cannot be declared corrupt by the executive. If we are practicing constitutional democracy, those people ought to be pronounced as corrupt by a court of law.
“I am totally in support of the fight against corruption. But there are issues of right. If I don’t like you, I might rely on this Executive Order, which does not include that you should go to court, to deprive you of your assets. So, the point is that there are already sufficient legislations and legal procedures that will enable this government to achieve the same purpose without resorting to legislative usurpation of the powers of the state.”
The Chairman, Presidential Advisory Committee on Anti-Corruption, Prof Itse Sagay, speaking in defence of the president in a telephone interview with Sunday Sun, said the order is in line with Section 5 of the Constitution.
His words: “This is part of the president’s executive powers under Section 5 of the Constitution. And the Executive Order is not directed at any specific asset at this time. What it does is to give the president the power to freeze any asset of anyone who is being tried or being interrogated or suspected of corruption or any fund, which is illicitly acquired pending the decision of the High Court or pending the inability of the person to establish ownership. In order words, he doesn’t actually seize them permanently; it simply creates a temporary seizure pending the final outcome of the judicial procedures.”
He, therefore, dismissed the concerns being raised by some stakeholders that the power might be used to muzzle up the opposition.
“It only relates to assets that have been illicitly or suspected to have been illicitly or fraudulently acquired. If anybody has a clean hand, why should he be afraid? It is only those who have illegally accumulated state assets for themselves who should be frightened by this directive. In any case, the power is already there under various laws – EFCC law, ICPC law, Money Laundering Act. The power is already there for the government to ask that property should be temporarily frozen pending the full procedure, which determines whether it has been legitimately acquired or not. The only difference is while the court makes a temporary order of freezing or forfeiture in the EFCC, ICPC and Money Laundering Act Procedures, in this particular case, it is the president that gives the temporary order. A situation where something is not done urgently, the assets might have been sold, transferred or interfered with in a way that reduces their values so that at the end of the matter, what the government can recover will be less than what has been fraudulently acquired. That is the whole essence of the idea,” he explained.
Asked whether the time is auspicious for such directive, Sagay quipped: “So, if you don’t think
of something immediately, you should abandon it forever. Now, he has considered it necessary to use the power. And if you read his reasons, he is looking at the dangers of these illicit funds being available to those who have fraudulently acquired them. They can use them to intimidate prosecution, they can use them to promote crimes, they can use them to destabilise society, they can use them to cause adversity. Very many negative things can be done with such illegal and illicit assets available to people who are suspected of frauds. That he didn’t think of it before does not mean he cannot use it. Anything can be done in life of an administration. He is just adding additional ammunition in the fight against corruption, having concluded that the weapons we have now need to be fortified.”
Also speaking, Second Republic lawmaker, Dr Junaid Muhammad, threw his weight behind the order. He said: “First and foremost, if we accept that corruption is a major problem, a national problem and, in fact, an existential problem for the whole country, I don’t see any reason this Executive Order should not be accepted by Nigerian.
“In fact, the question should be why did it take so long for them to invoke this Executive Order. They should have invoked this order a very long time ago. But now that it is done, I think that we would say that it is better late than never.
“Number two, a number of people get confused about what they call right to life, to property and so on and so forth. The reaction is that once somebody has been taken in and is being investigated and some of the materials which he acquired as a result of corruption, I think these property should be frozen.
I don’t think that their being frozen would change the outcome of the investigation. Of course, once it is confirmed that corruption was involved in the acquisition of those assets, investments and what have you, I think a law should be provided to proceed with the case so that they could be seized. But at the moment, I think we are talking about freezing some of these assets so that they do not stay in limbo with nobody knowing their status. And the owners may have died or have been sent to prison, you begin to wonder what is the status of some of these assets which had been acquired corruptly or which came to light as a result of investigation by a competent body like the Economic and Financial Crimes Commission. I am in absolute support of the executive order.”
On the timing of the order, he added: “I must say that the question of the timing of the order is
a legitimate one simply because the government did not come to power only yesterday or this year. They have been in power for the last few years and other governments have been paying lip service to the whole concept of fighting corruption. I would have thought that a government having taken the decision to move energetically at the political level, they needed the back up of this law much earlier than now. As I said, it is better late than never and I am prepared to go along with them. What they have done is right. I believe that there is no other way of fighting corruption unless we want to pretend that we are fighting corruption.”
But former Minister of Transport and chieftain of the Peoples Democratic Party (PDP), Ebenezer Babatope, in a sharp disagreement with Sagay, maintained that the order could lead to the tyranny of the executive and ultimately destroy the tenets of democracy by way of muzzling the opposition.
He said: “I have been searching my law books as a lawyer and I have been questioning whether the President of America, Nigeria or anywhere has power to put aside what the court of law will decide or debar the court of law from operating. If you say the man can come out, start questioning people and seizing property here and there, then you are putting powers of life and death on him.
“There must be the right of persons accused to go to court and challenge such powers because such powers are not only tyrannical, but also an abuse of the law process. So, I don’t think what is being arrogated to Buhari should be allowed to stay. If it stays, it can be used by any person to destroy political opponents.”
According to him, the power to order the seizure of any asset resides with the court of law.
“To seize persons’ property, the court of law must pronounce such fundamental matter before anything can be done,” he noted.
This position, he said, was without prejudice to the relevant sections of the Constitution relating to the powers of the president.
“I agree that the power is contained in the constitution, but to seize person’s property arbitrarily without a court order is injurious to democracy that we are operating. At this time when we are preparing for a crucial election, he can use it against anybody. The timing is very bad because the president who is imbued with such power can use such power against his political opponents, including those of his party who may not want to support him for anything,” he added.
In view of the closeness of the next general election, Babatope questioned the propriety of the Executive Order, saying: “At what time do you want to start trying people for corruption when you have been there for three and a half years and you did not do anything like that? According to what we are saying now, presidential election is coming very early next year – January or February. I think preparation is just being made to injure the opposition and also injure those who may wish to question him from re-contesting within his own party.”