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Executive Orders: Separation of powers as enshrined in the constitution must be jealously guided – Akinlolu (SAN)



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 Abuja-based 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 strong 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 shield and 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 other 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 list but 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 in that list have since faced the full hurdle of legal trail. 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 trail 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 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 International 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 international 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 list of candidates before 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 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. Heaven will not fall. We must get to a point where we respect our laws and our institutions, especially the sensitive institutions like INEC. The whole world is looking at them. 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, and what they have done in this circumstance is the right thing. It is a message that INEC is not going to be available to be pushed around, and I pray and hope that they will keep faith with that particular stance even as we go into 2019 elections – that they will not be available to be pushed around or manipulated by any of the parties, not necessarily the party that is controlling the centre at the moment, many of the parties. That is the only way that whatever result that INEC churns out in the 2019 election will not become a source of unrest and dispute in this nation. So, INEC has done exactly what it should do. There is no point for anybody looking for any constitutional loophole, the laws are very clear. The literal meaning of the law must be given to it. The timeline has passed, let APC go home and leak its wounds and learn a lesson and let every other party learn their lesson as well.


Many have frowned over high cost of party nomination forms. Some even perceive it as a ploy to deny many Nigerians the right to vie for political positions, and want to challenge it in court. What is your view on this?
I do not agree with that position. The political parties are at liberty to fix the price for their nomination forms. If a candidate feels that he is very popular in his area and he cannot afford to contest on the platform of APC or PDP or any other party that he feels the forms are too expensive, there are over 40 registered political parties. Let him go to other parties. Must he contest under APC or PDP? The problem with most of our politicians is that they are gold diggers. A number of them are not out to serve the interest of their people. All they want is a platform to get to power for self-aggrandizement and self-interest. So, if you think you are popular as a politician and you cannot buy the nomination form of APC or PDP, there are 38 other options. I know too well that there are some parties that are ready to give out their nomination forms free of charge. If you are sure of yourself, go and pick your form on any of those platforms. The field is open for everybody; you should campaign and convince your people to vote for you on that platform. And don’t forget also that running of political parties is a very expensive venture, especially in this part of the world.

Should running of political parties be so expensive?
Well, we are still growing. Things will get better. That is our hope and that is what we are working towards. Rome was not built in a day. Water will eventually find its level. So, all I am saying in earnest is, if you think you cannot cope with party A, and you are so sure and so convinced that you have the credentials, you have the passion, you have the qualifications, you have everything that is needed to represent your people or to govern your state as a governor, go to another party.

There were reports of votes buying during the governorship elections in Ekiti and Osun States. As we prepare towards 2019 elections, how do we curtail such trend?
Honestly, it is a worrisome trend in the sense that your vote as a Nigerian is your power. If you are not happy with the government of the day, all you have to do is to wait for another four years, for another election. But once you allow yourself to be convinced to sell your vote, it means that you don’t even have the moral right to question the performance of that government. Again, that is also a fall out of the state of degeneration of values. I am sorry to say that because of the level of poverty on our land; a lot of Nigerians have lost every sense of self-dignity. That is the truth because a man who has not eaten for two, three days and who does not know where he will get the meal from and suddenly, somebody dangles N5,000 at him, apart from asking him to vote for the person that you will be instructed to vote for, even if the man ask you to go and kill, you will kill. So, until the government consciously reduces the level of poverty in land, let people’s sense of dignity be restored, we would be going round the circle. And I am sorry to say that our politicians know this very well and they play on it. They know that a hungry man will do anything just to survive.

Secondly, there is a need to do a serious reorientation of our people. At every level, we must make people realize that “when you sell your votes, it is like selling your birthrights and once you sell your birthrights; it means that you have subjected yourselves to slavery, and do you want to subject yourselves to slavery for another four years? Thirdly, people must be meant to realize that if we are able to get the right people into government, turning things around can be achieved in two, three years. It is possible to turn things around in this country in less than three years if we are able to get people with integrity and fear of God, people with the spirit of contentment and people who are not out because of self-aggrandizement. So, we need to educate our people, especially the youths, who are in the majority and this is the best time to do it.

But what about agents of political parties involved in votes buying? Are there no provisions in the law to bring them to justice?
I will not want us to go into that area now because that matter is before a competent tribunal and I am sure some of these issues are part of the issues that would be canvassed in the course of that trial. But as I said, if it is true, what I have said earlier is the antidote. People must be told that if they sell their votes now, they must not have the right to question the man if he does not perform in office for the next four years.

Do you see INEC as fully prepared for the 2019 elections?
I will say that where there is a will, there is a way. We have electoral umpires in this country who have written their names in gold, somebody like Humphrey Nwosu, who conducted the June 12 election. That is a man whose record has remained unbeaten by my own assessment. And whatever you do, either in private or in public life, it becomes a reference point tomorrow. I know that INEC as presently constituted is marred with men of impeccable integrity, especially the last set of commissioners that were appointed. I wouldn’t want to mentions names but we know them and we are hoping and praying that they will not fail this time around. It is very easy, just do what is right, heavens will not fall, and know that whatever you do today, generations yet unborn will read about it as a reference point. We must get to a point as Nigerians and individuals where we will say that if I do what is right, I will die, if I do what is wrong, I will die, it is better for me to do what is right because whether I do wrong or I do right, I will still die. It will get to that point. That is the only way to go.

I also want to believe that the last two elections in Ekiti and Osun are very good opportunity to test-run what we expect. We must also be conscious that we don’t have this re-run or inconclusive election. Those states are not too big, so, if we are serious, there was no reason why the elections shouldn’t have been concluded at a go. And that is what is bringing all these insinuations that some people have decided to cause mayhem in order to invalidate the outcome. The whole world is watching, our children are watching and generations coming behind us are watching. I keep say that until we get to a point where those who are seeking electoral offices are seeking it to serve, not people that are jobless, frustrated and people who cannot make it in life, we will never get it right. So, we must be able to check their pedigree. We must be able to know how they have governed their homes, how they have represented their homes and the testimonies they have from their children, from their workers and neighbours. We must get to that point.

Which areas of electoral reforms would you want to be taken seriously by both the legislature and the executive?
It is the mal-functioning and the problems with card readers. You must take into consideration, the peculiar terrain of some parts of this country and the level of literacy. I will suggest that whatever reform we put in place must ensure that people are not disenfranchised. Once you disenfranchise a man, it is like taking was from him, the right to decide who should govern him and manage the resources meant for the community, and that should not be allowed to happen. There is no reason why our standard of life should be this low. Every index that has to do with human life in Nigeria is low.

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