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Executive Order 6: FG goes all out on corruption

By Joseph Onyekwere (Lagos), Azimazi Momoh Jimoh, Bridget Chiedu Onochie, Terhemba Daka and Segun Olaniyi, (Abuja)
14 October 2018   |   4:35 am
The Federal Government, yesterday, engaged turbo gear in the bid to drive out corruption from the polity, with President Muhammadu Buhari mandating...

President Muhammadu Buhari

• Travel Restriction Placed On More Than 50 High Profile Nigerians
• Their Financial Transactions Under Watch
• Buhari Foisting Full-blown Fascism On Nigeria- PDP
• President So Desperate To Remain In Power, Acting Like A Dictator- Fani-Kayode
•Lawyers Decry Action • Action Primitive, Political Witch-hunt- HURIWA

The Federal Government, yesterday, engaged turbo gear in the bid to drive out corruption from the polity, with President Muhammadu Buhari mandating the Attorney General of the Federation and the Minister of Justice, Abubakar Malami to implement the Executive Order 6 (EO6) in full force.

The Presidency confirmed that a number of enforcement procedures were already in place by which the Nigeria Immigration Service, and other security agencies have placed no fewer than 50 high-profile persons directly affected by EO6 on watch-list and restricted them from leaving the county, pending determination of their cases.

Buhari’s mandate came following the instant judicial affirmation of the order’s constitutionality and legality by Justice Ijeoma Ojukwu, of the Abuja Division of Federal High Court, last Wednesday.

The ruling held that Executive Order 6 was within the powers of the President, as granted by the Constitution, to issue executive orders for the execution of policies by the executive arm of government, provided such orders respect the principles of separation of powers.

The judge noted that Executive Order 6 did not violate the rights of citizens to own property, rather it was informed by Buhari’s willingness to save suspected property from being dissipated.

Justice Ojukwu, however, cautioned that the powers given to the AGF under the Executive Order 6 must be exercised in accordance with the provisions of the Constitution.

The judge held that although the Order seemed to give the AGF discretion as to when to seek permission of the court to seize any suspected property, it must at all times, obtain a court order before seizing any asset. Such application, the court held, could be made ex-parte.

The Presidency, in a statement signed by Senior Special Adviser on Media and Publicity, Garba Shehu, yesterday, said: “The financial transactions of these persons of interest are being monitored by relevant agencies to ensure that assets are not dissipated and such persons do not interfere with, nor howsoever corrupt investigation and litigation processes.

“It is instructive to note that EO6 was specifically directed to relevant law enforcement agencies to ensure that all assets within a minimum value of N50m or equivalent, subject to investigation or litigation are protected from dissipation by employing all available lawful means, pending final determination of any corruption-related matter.

“The Buhari administration reassures all well-meaning and patriotic Nigerians of its commitment to the fight against corruption, in accordance with 1999 Constitution (as amended) and the general principles of the Rule of Law.

“Accordingly, this administration will uphold the rule of law in all its actions and the right of citizens would be protected as guaranteed by the Constitution.

“We, therefore, enjoin all Nigerians to cooperate with the law enforcement authorities towards ensuring a successful implementation of EO6, which is a paradigm-changing policy of the Federal Government in the fight against corruption,” the statement stated.

However, some constitutional lawyers, who spoke to The Guardian have cautioned that even though the President has powers to issue executive orders, such powers should be subject to the provisions of the law of the land.

In reviewing the extent to which the President can exercise his power under Section 5 of the Constitution, Mr. Donald Ibebuike, insisted that the power of the President to issue an Executive Order under Section 5 of the 1999 Constitution (as amended), is subject to Section 4 of the same Constitution, which gives the National Assembly the powers to make laws for the good governance of Nigeria.

“To this end, the power of the President to issue Executive Order is limited to assisting the implementation of any law made by the National Assembly.  See the unreported case of Alraine Shipping Agencies Ltd & Ors V Nigerian Shippers’ Council & Anor for which judgment was delivered on June 21, 2017.

“Having regard to the issue at hand, I can say that if the Executive Order is aimed at implementing an existing law that allows Nigerians to pay tax on their offshore assets, then it is in order, but if otherwise, I suggest for same to be challenged in a court of law.

“I think also that the Executive Order needs to be viewed from the mischief it will cause. It may have the effect of subjecting the owners of offshore assets to multiple taxation, given that the owner of such assets may have paid tax on any profit relating to the assets to the host country, especially where the owner of the assets is a corporate personality.”

On the other hand, Ibebuike believes that the corporate personality may have factored in the profit from such assets in declaring its Nigerian profits, and has, to that extent, paid any due tax to the country.

“I think from the little knowledge about the Executive Order, it appears to be imprecise, fluid and may have implementation challenges,” he maintained.

Abubakar Sani, a legal practitioner holds a different view on the limit to the powers of Mr. President to issue executive orders.

He also believes that the new order, is part of the President’s intervention in furtherance of his executive powers under Section 5 of the Constitution read along with Section 10(2) of the Interpretation Act.

“Pursuant to those powers, the President can lawfully direct relevant tax collection agencies established by the National Assembly, such as the FIRS as he deems fit,” Sani stated.

Another lawyer, Mr. Chris Okeke, disagreed with the position of the court on the constitutionality of Executive Order 6, insisting that it failed to align with Justice Ojukwu’s position.

“My take on the Presidential Order is, taken together with the provisions of the Constitution on the presumption of innocence; I fail to find alignment with judgment of the Federal High Court.

“I have read the Presidential Order on offshore assets, and particularly Switzerland was mentioned. The inescapable questions include whether Switzerland and indeed, any other country for that matter will cooperate with you in that direction. Where your demand conflicts with the domestic laws and interests of the cooperating country, who do you expect they will go with?

“Again, as it affects our domestic laws, it need be pointed out that the President’s Executive Order is not a legislation, it is not an Act of the National Assembly either.”   He added: “Being none of above, the order cannot in anyway abridge the rights, and or derogate from constitutionally guaranteed rights of Nigerians under any guise or name.

“That they are called taxation is not an excuse. Meanwhile, I expect the Supreme Court of Nigeria to clear the air here in due course.

“Put differently, I expect the judgment of the Federal High Court to be challenged on appeal pronto. In the meanwhile, the Federal High Court judgment in question has not justified the essence and beauty of constitutionalism in Nigeria.

“The President can intervene only to the extent allowed by the Constitution and laws of the land,” he insisted.

Meanwhile, the Peoples Democratic Party (PDP) has rejected what it called “an attempt by President Muhammadu Buhari to foist a full-blown fascism on our country, beginning with the placement of illegal travel restrictions on certain unnamed Nigerians.”

The party, in a statement released by its national publicity secretary, Kola Ologbondiyan, yesterday, said “this wicked and draconian step is clearly targeted at members of the opposition parties, perceived enemies of President Muhammadu Buhari, well-meaning Nigerians, including members of the business community, religious leaders, former political leaders and traditional rulers, who are perceived to be averse to President Buhari’s re-election bid.”

The PDP further noted that “this decree is a direct clampdown on our democratic order and an overthrow of rights of our citizenry as guaranteed by the 1999 Constitution (as amended). We hope this is not a ploy to harm certain eminent Nigerians under the guise of resisting travel restrictions,” the PDP added.

It invited the international community to note “how fascism is fast taking over our democracy and judicial system and how the Buhari administration by fiat, has directly ordered that citizens be secretly trailed, their movements and financial transactions restricted by government agencies, without recourse to due process of the law.”

It further noted that, “the Buhari Presidency has gone into panic mode since the popular emergence of Alhaji Atiku Abubakar as PDP presidential candidate and the spontaneous jubilation his emergence has evoked across the country,” pointing out that, “the resort to total clamp down on the opposition and our supporters will be totally unacceptable.

FORMER Aviation Minister, Chief Femi Fani-Kayode, in his reaction to the presidential mandate said: “The banning of 50 prominent Nigerians who are all members of the opposition from travelling out of the country by Buhari’s Executive Order and the power to confiscate their assets even though they have not been empowered to do so by a court of law, or convicted of any offence is utterly shameful and condemnable. It is nothing less than a descent into fascism and a violation of the fundamental human rights and civil liberties of the individuals that have been directly affected and the Nigerian people.”

It continued: “It is also a usurpation of the role of the Judiciary. Buhari is so desperate to remain in power that he has now resorted to attempting to muzzle and intimidate the opposition. He forgets that he is not God and that he will soon leave power. I condemn his lawless and desperate ways in the strongest terms. Only dictators behave in this way and Buhari has proved to be the most brutal and callous of them all in the history of our nation. I challenge him to do his worse and enjoy the short time that he has left in office. Sadists never last. Soon it will all be over and he will account for his evil ways and brought to justice.”

Relatedly, a pro-democracy and non-governmental organisation, Human Rights Writers Association of Nigeria (HURIWA) says the president’s action was a primitive resort to political witch-hunt and vendetta.

According to it, the Nigerian Constitution in Section 36 has clearly indicated that even when a citizen is charged before a competent court of law, the said individual is presumed innocent in the eye of the law until contrary determination is reached.

The rights group stated categorically that Executive Order 6, which purports to be a policy guideline on the prosecution of suspects accused of hiding foreign assets, does not have the force of a superior law to supercede the clear and binding provisions of the Constitution, which unambiguously affirmed the innocence of a crime suspect pending the determination of the prosecutorial activities of a competent court of law, recognised in Section 6 of the Nigerian Constitution.

HURIWA accused Buhari of attempting to declare a state of emergency by suspending the Constitution, which is what the just issued Presidential statement meant, when it authorised the profiling of certain Nigerians not yet convicted and to deny them their constitutionally protected freedoms even when in the eye of the Supreme law of Nigeria they are as innocent as a white dove until a contrary determination is reached not in the presidential court, or court of public opinion, but in competent courts of law as specified in Section 6 of the 1999 constitution (as amended).

HURIWA in a statement by the National Coordinator, Comrade Emmanuel Onwubiko, in Abuja, yesterday lampooned President Muhammadu Buhari for the erroneous interpretation of the ruling of the Federal High Court, which validated his power to make general policy frameworks on the fight against corruption subject to the order of the competent court of law.

It reminded Buhari that the court couldn’t have unilaterally overruled or nullify the relevant sections of the Constitution, which are directly related to the constitutionally guaranteed freedoms such as right to freedom of movement; Civil liberties (Section 35(1) and other constitutionally guaranteed right to fair hearing and the constitutional presumption of innocence, as clearly provided for in the extant constitution which remains the supreme law of Nigeria.