Institutionalising the war against corruption – new approaches to assets tracing and recovering (6

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or statutory means, including seeking the appropriate Order(s) of Court where necessary, and shall bit be transferred, withdrawn or dealt with in any way until the final determination by a court of competent jurisdiction of any corruption related matter against such a person…”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: