In defence of executive order No. 6
The overwhelmingly negative public reaction to the Preservation Of Suspicious Assets Connected With Corruption And Other Relevant Offences Order (Executive Order No. 6 of 2018) recently signed by President Muhammadu Buhari is somewhat surprising, given that virtually everyone agrees that corruption is an endemic malaise which must be treated as a national emergency. Are those criticisms justified? We shall presently attempt some answers, but first, an overview of salient provisions of the Order.
The Order consists of a Preamble and seven (7) Sections. The Preamble sets out the socio-political background and contains its supposed legal bases or enabling provisions, i.e., Sections 5 and 15(5) of the 1999 Constitution, which confer executive powers on the President and enjoin the State to abolish corrupt practices, respectively. Section 1 of the Order is at its core. It sets out to “protect from dissipation using all available lawful and statutory means including court orders”, the assets of any Nigerian which are believed to be linked to corrupt practices; such assets are not to be dealt with or transferred until the final determination of any corruption-related matter by a competent court. The Section lists (in a Schedule) a number of such matters currently pending in court, and empowers the AGF and Minister of Justice to publish from time to time, a list of such assets. It empowers the AGF to co-ordinate the implementation of the Order.
The Section restates the existing legal position that public officials who engage in corrupt practices shall be subject to disciplinary proceedings in accordance with the public service rules as well as investigation/prosecution by the Code of Conduct Bureau/Tribunal, in addition to forfeiting the proceeds of such practices in accordance with law. It specifically authorizes the AGF to approach the courts for an order to block or freeze any funds or assets, which he reasonably believes to be corruption-related pending investigation or legal action. I submit that this mandate is peremptory, notwithstanding the use of the word “may” therein.
Section 2 of the Order is an enforcement provision and it directs the prosecution, in accordance with relevant laws, of anyone who seeks to circumvent or subvert it. Section 3 will be dealt with later. Section 4 simply enjoins law enforcement agencies to work with the Federal Ministry of Justice in implementing the Order. Section 5 is the definition clause, while Section 6 gives the commencement date of the order (it was signed by President Buhari on 4th July, 2018).
Is the Order Ultra Vires the President?
This is perhaps the biggest challenge to the Order. Is it correct? For reasons that shall follow anon, I believe that the President possesses the requisite legal competence to make the Order. To start with, Section 5(1)(a) of the Constitution provides that the Executive Powers, which it vests on the President, may be exercised either directly or through Ministers or public officers in his Government. Section 5(1)(b) provides that those powers “extend to the execution of the Constitution (and) all laws made by the National Assembly and all matters with respect to which the National Assembly has power to make laws”. Such laws include the much-touted asset forfeiture provisions of the EFCC Act and the ICPC Act. Section 150(1) of the Constitution provides that there shall be an Attorney-General of the Federation who shall be a Minister in the Government of the Federation.
By virtue of Section 10(2) of the Interpretation Act, “an enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it”. I submit that Executive Order No. 6 is self-evidently an enabler to the exercise of the said powers of the President to execute and maintain the Constitution as well as laws made by the National Assembly. It is simply a reminder by Mr. President to the AGF and law enforcement agencies of the extant provisions in the law, which not only forbid corruption but also empowers the State to deny those who engage in it of the reward for their malfeasance.
Criticism of the Order
As previously alluded to, amongst a litany of its perceived flaws, critics allege that the Order usurps the powers of the court under Section 6 of the 1999 Constitution by empowering the AGF to publish lists of assets purportedly affected by (and thus temporarily forfeited pursuant to) the Order. It is claimed that this provision violates the presumption of innocence under Section 36(5) of the Constitution. The impression created by this charge is that the AGF arbitrarily decides that an asset is corruption-related and lists it accordingly under the Order. Nothing could be further from the truth.
The Order expressly provides that the AGF shall exercise his powers under it subject to relevant provisions of both the Constitution and other laws. See Section 1(c) & 1(c)(iv) and FRN vs OSAHON (2006) 2 SCNJ 348. In addition, those powers are “without prejudice to any laws or existing suits or any other rights arising out of or in respect thereof”’: See Section 1(a) and Black’s Law Dictionary, 8th ed., pg 1632 for the legal meaning of the phrase without prejudice.
However, as if to make assurance doubly sure, the Order goes ahead to stipulate that the protection envisaged by its provisions is to be achieved “by employing all available lawful or statutory means, including seeking the appropriate order(s) of court where necessary”. Furthermore, such forfeiture, as it were, is not permanent but is an interim measure, pending “the final determination by a court of competent jurisdiction of any corruption related matter against such a person”. See Section 1(a) and Section 1(c)(iii) of the Order. Similar words are used in Section 1(b) which provide that Government officials or their nominees/agents who engage in corrupt practices shall “forfeit the proceeds in accordance with the relevant laws”. I submit that the intention behind all these is clear – to check abuse and ensure that the rule of law is observed. So, where is the fear?
Another charge is that there are existing provisions in relevant legislations which deal adequately with the subject matter of the Order, such as Sections 26, 28, 29, 30 and 34 of the EFCC Act, Sections 44 – 49 of the ICPC Act and Section 8(1) of the Recovery Public Property Act 1984. Beyond the fact that this last statute is invalid because it is inconsistent with the Code of Conduct provisions of the 1999 Constitution, it is beyond peradventure that given the existential threat which corruption poses to Nigeria, all measures aimed at tackling it ought to be embraced provided, of course, that it is done within the ambit of the law. Accordingly, more should be better, and not less.
The greatest weakness of the criticisms of the Order is their failure to acknowledge that it categorically gives a right of redress to “any person who alleges that his rights have been, are being or are likely to be contravened by any of (its) provisions (to) apply to a competent court in his jurisdiction”, vide Section 3 thereof. It means that nay-sayers to the Order who do not fall within these categories lack the requisite locus standi to challenge it. Accordingly, they should be content to give the Order the benefit of the doubt. The foregoing analysis clearly demonstrates that such doubts exist only in the imagination of those affected by the Order as well as avowed critics of this Administration, whose prejudice clearly taints their assessment of the Order and robs it of objectivity.
Sani, a lawyer, writes from Kano
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