Laws in Nigeria, because of corruption, are more known in their violent abandonment than in their strict application.
In our last 5 series, we have been able to show that for there to be any meaning development in the fight against corruption, there must exist institution with a core value deployed independently, free from the manipulative powers of the executive or its personnel to rescue Nigeria from corruptive decay. Today, we shall conclude our series on the above issue.
Preservation of suspicious assets connected with corruption and other relevant offences order, 2018 (Presidential executive Order 6 of the Federal Government of Nigeria)
President Executive No. 6 of 2018 on the preservation of suspicious assets connected with corruption and other relevant offences was made by President Muhammadu Buhari on the 4th of July, 2018.
The Executive order 6 was made pursuant to section 5 of the constitution of Nigeria, 1999, with a view to bring to reality the provisions of section 15(5) of the Constitution which places responsibility on the state to abolish all forms of corrupt practices and abuse of power. The purport of Presidential order 6 is quite encompassing but primarily, the objective of the order is to seize and preserve the assets of people alleged to be corrupt or assets alleged to have been acquired through the proceeds of crime.
Section 1 (a) of the Order provides thus:
“Without prejudice to any laws or existing suits or any other rights arising out of or in respect thereof, all Assets of any Nigerian citizen within the territory of the Federal Republic of Nigeria, or within the possession or control of any person known to be a current or former government official, a person acting for or on behalf of such an official, any politically exposed person or any person who is responsible for or complicit in, or has directly or indirectly engaged in Corrupt Practices and Other Relevant offences are forthwith to be protected from dissipation by employing all available lawful or statutory means, including seeking the appropriate Order(s) of Court where necessary, and shall bit be transferred, withdrawn or dealt with in any way until the final determination by a court of competent jurisdiction of any corruption related matter against such a person…”
My humble take on executive Order 6 of the Federal Government of Nigeria
Before going further in discussing this subject matter it is important to know that Executive Order found its root in United States of America. What then are Executive orders? Executive Orders are orders issued by a President and directed towards officers and agencies of the government. Executive orders have the full force of law, based on the authority derived from statute or the Constitution itself. The ability to make such orders is also based on express or implied Acts of the Legislature that delegate to the President some degree of discretionary power.
Constitutional basis of executive Orders
The constitutional basis for Executive Order is the President’s broad powers to issue executive directives. According to the Congressional Research Service, there is no direct “definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance.”
But Article II of the U.S. Constitution (which is the equivalent of Section 5 of the Constitution of the Federal Republic of Nigeria, 1999), vests executive powers in the President, makes him the Commander- in-Chief, and requires that the President “shall take care that the Laws be faithfully executed.” Laws can also give additional powers to the President.
The U.S. Supreme Court has held that all executive orders from the President of the United States must be supported by the Constitution, whether from a clause granting specific power, or by Congress delegating such to the executive branch. Specifically, such orders must be rooted in Article II of the US Constitution or enacted by the congress in statutes. Attempts to block such orders have been successful at times when such orders exceeded the authority of the president or could be better handled through legislation.
In Nigeria as in the United States, the expression, executive order, is neither defined in the 1999 Constitution nor is it interpreted in any legislation of the National Assembly or House of Assembly of any State but, like in the USA, it is widely used. Professor E.O. Okebukola and A.A Kana, define the phrase as “executive order is a command as: executive order is a command directly given by the president to an executive agency, class of persons or body under the executive arm of government. Such a command is in furtherance of government policy or Act of the Legislature. The executive order may require the implementation of an action, set out parameters for carrying out specific duties, define the scope of existing legislation or be a subsidiary instrument within the contemplation of section 37 of the Interpretation Act”. According to Okebukola and Kana, Executive Orders have legal force only when they are based on the President’s constitutional or statutory authority. They are valid only where Presidents act within the boundaries of their constitutional or statutory authority. The enabling legislative or constitutional authority may empower the President to use executive orders to perform strictly defined roles.
The Legislature or Constitution can also confer wide discretionary power on the President to issue orders in certain matters. For instance, under Section 315 of the 1999 Constitution,
the President and other appropriate authorities have the power to “make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution”.
Underscoring this point, the Supreme Court, held in the case of AG, ABIA STATE & ORS V AG, FEDERATION, (2003) LPELR-610(SC), per Belgore, JSC, as follows:
“It is noteworthy that the Constitution, itself, has defined “appropriate authority” for the purpose of an Act of National Assembly for modification as the “President.” It also defines “modification” as follows in S. 315(4)(c):”315(4)(c) ‘modification’ includes addition, alteration, omission or repeal. Thus the President has wide power when modifying any existing law to bring it in conformity with the Constitution. It is true that “separation of powers” is essential to a healthy democracy, the power given the President and also to State Governors in existing law of the State by the Constitution is not an abuse of the principle or doctrine of separation of powers, it is essential to giving meaning to an existing law so that the Constitution itself is not abused.”
Apart from this provision of the Constitution, the Act of the National Assembly can also permit modification by the President. For example, section 1(5) Armed Forces Act CAP A20 LFN 2004, section 134 (3) Customs and Excise Management Act; section 33 Firearms Act CAP F28 LFN 2004; section 44(2) NDLEA Act CAP N30 LFN 2004; section 44 Ahmadu Bello University (Transitional Provisions) Act CAP A14 LFN 2004, etc.
In addition to the power to modify, the President may be granted the discretion to use executive orders to implement or set out the extent and scope of an Act. It should be noted however, that in matter involving the exercise of statutory power, it is settled law that, the function of the Court begins when it is alleged that the power has not been exercised in accordance with the law.
Thus, in the case of OMOKHAFE V. ESEKHOMO (1993) LPELR-2649(SC), the Supreme Court, held, per Belgore, JSC, as follows:
“Where there is a statutory provision for making an order or declaration, and the making of the same is reposed in a named office, whether Minister or Commissioner, or indeed whether President of the Republic or Governor of a State, such function cannot be usurped by the Court. The furthest a Court of Law can go is to declare as to validity or otherwise of that order or declaration of a public officer; but the court has not got the jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.”
In A.G. ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT. 224) 396 AT 419, the Supreme Court states thus:-
In matters involving the exercise of statutory power, the function of Courts begins only when it is alleged that the power has not been exercised in accordance with the law, once the person or authority or body on whom the statutory power is conferred has exercised, its powers under the statute, any citizen of Nigeria who feels his rights are infringed thereby can by virtue of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1979, challenge the exercise of the power. (Merchant Bank v. Federal Minister of Finance (1961) All N.L.R. 598; Egbuson v. Ikechukwu (1977) 6 S.C. 7 referred to and followed)
Again in AJAKAIYE V. IDEHAI (1994) 13 NWLR (PT. 364) 8 NWLR 504 AT 525 to 526 the Supreme Court held:
Where there is a statutory provision for making an order or declaration and the making of same is reposed in a named office, whether Minister or Commissioner or indeed the President of the republic or the Governor of a State, such function cannot be usurped by the Court. The furtherest, a Court can so is to declare as to validity or otherwise of that order or declaration of a public officer, but the Court has not got the Jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.”
Corruption which also includes money laundering, bribing, impunity, electoral malpractices, stealing etc is endemic to national development; it acts as a clog to the progression of any state. One way to overcome it is investment and building of institutions that can stand the test of time, but Nigeria has overtime learnt to build strong men rather than institutions, this phenomenon has led to political witch-hunting, selective legal persecution, building of fences around political allies etc. It also has resulted in violent disregard of the constitution, flagrant violation of the human rights of accused persons and lack of confidence in the anti corruption war ongoing in Nigeria. Therefore, if Nigeria is to win, institutionalization is the way forward, the rule of law must be held in high esteem, the trust of the public must gained and laws must be applied equally across board. Nigeria does not suffer from paucity of laws, in fact some of the laws are so drafted that the intentions of the drafters can easily be deduced even by people who are not within the legal circle, however, laws in Nigeria because of corruption are more known in their violent abandonment than in their strict application, finally, this paper therefore advocates for the proper and genuine application of our laws to foster development in Nigeria. The End.
Thought for the week
“Executive orders are meant for occasional use, not to force something through that the people’s elected representatives aren’t going to make law.” – Fabrizio Moreira