Section 5 of the 1999 Constitution only gives the President powers for the execution and maintenance of all laws already duly passed by the NASS
Some weeks ago, I had written about the unconstitutionality of Executive order 6 (EO6) and President Buhari’s travel ban on Nigerians. I had traced the origin of Executive Orders to the United States of America, starting with George Washington; the cases of Marbury vs Madison 5 US I Cranch 137 (1803), Myers vs. US 272 UC 52; and the operation of Executive Orders in Nigeria, starting with the case of Attorney General Abia State vs Attorney General Federation (2003) 4 NWLR (Pt 809) 124. I also discussed how Justice Ijeoma Ojukwu’s decision on EO6 was misinterpreted and taken out of context. She did not give a blanket endorsement of EO6. She tempered its operation with the caveat that the EO6 must conform with the hallowed doctrine of separation of powers; triumph of rule of law, respect for an individual’s fundamental rights; and that the AGF must first obtain an order ex parte before seizing any citizen’s properties allegedly linked to proceeds of crime. This ruling was itself however contrary to the clear provisions of Executive Order 6 which had given the AGF an option as to whether or not to apply to a court of law for forfeiture, if he so desires.
Court does not give advisory opinion
However, strangely, rather than nullify the order outright, the judge issued what can be called a judicial caveat or caution, to the effect that the powers of the AGF must be exercised in accordance with the provisions of the Constitution; and that it must not breach rule of law, the doctrine of separation of powers or individual rights.
These constitute mere advisory opinion which courts are not allowed to indulge in. In Attorney-General Federation v. ANPP (2003) 18 NWLR (pt. 851) 182 at 210 – 211, Tobi JSC, held: “Courts of law do not embark on academic exercise because they are not academic institutions. Therefore, there must exist between the parties to a suit or an appeal a matter in actual controversy which the court is called upon to decide as a living issue. This is because on the basis of the extant grundnorm upon which the judicial authority of the courts is based, courts in Nigeria have no jurisdiction to give advisory opinions. Similar decisions were arrived at in Action Congress v. INEC (2007) LPELR-8988(CA) and OKONKWO v. AG ANAMBRA STATE & ORS. (2009) LPELR-4286(CA).
EO6 is an Ad hominem law
What was not pushed, or perhaps not pronounced upon by the trial court is that EO6 is also unconstitutional for being a law made ad homine (a law targeted or targeted at a person). Aside dressing itself up in the borrowed robes of a law (which it is not and can never be, that being a function of the NASS), EO6 specifically named 155 politically exposed persons PEP) and some business and military personnel, whose cases are already before courts of law. This undoubtedly amounts to interfer- ing with the judicial process and ham stringing courts of law as to how best to arrive at decisions.
In the famous case of Liyanage vs. R (1967) I.A.C. 259, the Privy Council struck down a legislation which was specifically designed to punish those responsible for a coup d’tat. The PC held that it was an attempt to usurp judicial powers. Lord Pierce, with great depth of lucidity, illuminated thus:
“Blackstone in his commentaries said: ‘Therefore a particular act of the legislature to confiscate the goods of Titius, or to attain him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.’
“If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crises and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.”
In Kable vs. DPP (NSW) (1996) 138 ALR 577, the Australian High court upheld Kable’s challenge to the legality of a 6 month detention order made against him on the ground that the Act was invalid. The Community Protection Act, 1994, passed by Parliament of New South Wales was a remarkable example of ad homine legislation.
EO6 is even in a worse state, it not even being an Act of Parliament (NASS), but a mere Executive or presidential directive. It is null and void on account of its ad homine nature.
Quite aside the fact that Justice Ijeoma’s judgment never gave President Buhari the power to arbitrarily ban citizens from travelling, Section 5 of the 1999 Constitution from which the President allegedly derived his powers to make EO6 only gives the President powers for the execution and maintenance of all laws already duly passed by the NASS, and not to turn the Executive into a second law – making arm of government.
EO6 cannot derogate from the constitution
Executive Order No. 6 cannot even enjoy the derogation qualification granted under section 45 of the Constitution, which permits restriction and derogation from the observance of section 41 under a law “reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality, or public health, for the purpose of protecting the rights and freedom of other persons”. This is because EO6 is not a law, but a mere Executive Order. Nothing more.
EO6 violates the doctrine of separation of powers and rule of law
Executive Order No. 6 also violates the hallowed doctrines of separation of powers ably propounded in 1748 (sections 4, 5, 6, of the 1999 Constitution), by Baron de Montesquieu, the rule of law as espoused by Prof A.V. Dicey and all tenets of constitutional democracy. It is high-handed, obnoxious, pristine, capricious, whimsical and arbitrary. It violently erodes cherished fundamental rights that are inalienable and God-given. It seeks to strike terror and fear in the minds of Nigerians, especially the opposition and critical voices. EO6 usurps the functions of a court of law and the NASS that has already promulgated the EFCC, ICPC, Money Laundering Acts and Recovery of Public Property (Special provisions) Act, all of which allow for interim forfeiture and attachment of citizens’ money and properties, but with an order of a court of law. That was what Justice Ijeoma Ojukwu said in her judgment. She made it clear that although Executive Order No. 6 was not itself invalid, but that the Attorney General of the Federation must first obtain an order of court under section 174 of the Constitution, and that the enforcement of the order must never derogate from the rule of law, or from the doctrine of separation of powers, or from the fundamental rights of Nigerians.
Executive orders are not in themselves illegal
No one had ever doubted the legality of Executive Orders in presidential systems, which are regularly issued by American presidents, where from we borrowed our presidentialism. We had demonstrated this earlier with the 1803 Marbury case. But, such an order must conform with laid down procedure, due process, respect for citizens rights and rule of law. After all, as far back as 1999, president Obasanjo had issued Executive Orders to abolish the petroleum Trust Fund (PTF) and also to proclaim May 29 as Democracy Day (I have never agreed with this. June 12 is Nigeria’s real Democracy Day). Also, in 1980, President Shehu Usman Aliyu Shagari had issued an Executive Order to modify the Public Order Act. However, in the OBJ instance, it was to bring the issues at stake to be in conformity with the Constitution as provided for in section 315 of the 1999 Constitution.
Mere suspicion is no proof of an offence
EO6 which seeks to attach a citizen’s property on mere suspicion of being proceeds of crime is also unconstitutional for being in conflict with section 36 of the Constitution, which provides that a person is not guilty of an offence until proven to be so guilty before a competent court of law. In the case of Ajaegbo vs. State (2018) LPELR 44531 (SC) 36, the apex court held that “the law is that suspicion, no matter how grave cannot take the place of legal proof”. That evidence of suspicion, no matter how grave cannot replace legal proof of the commission of the crime alleged against a person charged with the offence is trite in law. See also Abieke v. State (1975) NSCC 404.
Thus, the vain attempt by E06 to assault and circumscribe citizens fundamental rights (even if it were an Act of the NASS, which it is not), is unconstitutional. For the avoidance of doubt, “the time honoured principle of law is that wherever and whenever the Constitution speaks, any provision of an Act/statute on the same subject matter, must remain silent” (Saraki vs. FRN (2016 LPELR 400 13 (SC).
Government’s travel ban is highly unconstitutional
Quite apart from the fact that EO6 never made provisions banning any Nigerian from travelling (it would have been unconstitutional to do so), the ban on about 50 Nigerians (names not disclosed till date), from travelling, is a grave constitutional aberration. After the right to life (section 33), right to dignity of the human person (section 34), right to personal liberty (section 35), right to fair hearing (section 36), the right to freedom of movement (section 41), is so crucial that without it, a citizen is virtually grounded, chained and manacled, both physically and mentally.
READ ALSO: Atiku, lawyers reject ban on 50 Nigerians
• To be continued
Thought for the week
“There is one way, only one way to solve it, and that is through legislation. It cannot be through an unconstitutional executive order that violates the Constitution.” (Marco Rubio)