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Lawyers urge legal action against ‘unconstitutional’ Presidential Executive Order

By Joseph Onyekwere (Assistant Editor, Law and Foreign Affairs)
08 July 2018   |   4:27 am
A flurry of scathing criticisms by legal practitioners have trailed the Presidential Executive Order No. 6 of 2018, which seeks to restrict dealings in assets suspected to come from proceeds of corruption.

President Muhammadu Buhari PHOTO: BAYO OMOBORIOWO

A flurry of scathing criticisms by legal practitioners have trailed the Presidential Executive Order No. 6 of 2018, which seeks to restrict dealings in assets suspected to come from proceeds of corruption.

While some wonder the rationale behind the order signed by President Muhammadu Buhari, when there are sufficient laws to deal with assets suspected to be from the proceeds of corruption, others carpet the order, which they say seeks to hijack and usurp the powers of both the legislature and the courts.

They, however, expressed the hope that this alleged flagrant violation of the constitution by Buhari would be challenged right away, as its objective is to convict people even before a court of competent jurisdiction convicts them.

In signing the order on the preservation of suspicious assets connected with corruption and other relevant offences, which lawyers also described as “obviously worrisome and is of dubious validity,” Buhari cited Section 5 of the 1999 Constitution as amended, which empowers the President to execute and maintain the provisions of the Constitution, as well as, laws made by the National Assembly.

He added that assets of any Nigerian should be protected from dissipation “without prejudice to any laws or existing suits or any other rights arising out of, or in respect of the assets.”

He also empowered the Attorney General of the Federation to publish from time to time, a list of all assets protected pursuant to the order among other provisions in the proclamation.

But Lagos-based legal practitioner, Chris Okeke, sees the order as another manifestation of the President’s lack of understanding of the law.

Said he: “It seems Buhari doesn’t have legal advisers.
Section 36 (5) of the 1999 constitution says every person is presumed innocent until a competent court finds him/her guilty … the power to confiscate does not lie with the President, but with the judiciary. What if those whose properties are confiscated are not found guilty at the end of the day?

“For instance, the Supreme Court Friday ruled that Bukola Saraki has no case to answer. What if his properties were already confiscated?”

While noting that such actions were aimed at intimidating the judiciary, he said, “it is also a matter of subjudice, which says once a matter is before the court, you don’t discuss it until it is concluded. Now matters are in court and the order is made,” he noted.

Benin, Edo State-based lawyer, Solomon Ukhuegbe, is of the view that an executive order issued by the President outside a specific mandate by a legislation, and outside a state of emergency, must be grounded on some constitutional authority.

According to him, in the United States, such power is traditionally grounded on that country’s constitution, which mandates that the President “shall take care that the laws be faithfully executed” as contained in Article 2, Section 3.

His words: “The present presidential executive order specifically claims its authority under Section 5(1)(b). Perhaps, it can be argued that it is nothing more than an administrative directive by the President to the Attorney General of the Federation, and the law enforcement agencies, and a notice thereof to the public, as the order does not, in any way, intend to depart from existing law or to infringe the rights of citiz ens.”

Ukhuegbe who expressed hope that the order will be judicially challenged even before the “ink dries on the parchment,” asked: “The question arising is, does Presidential Order No. 6 signal that the President is impatient with National Assembly in securing appropriate legislation to ramp up the war on corruption, and has therefore chosen to act independently?”

Dayo Ogunjebe, a Lagos-based legal practitioner toes the same line saying, “My position is that those who are affected by this order should challenge it in the law court. There is political undertone in the action. I suspect that it was done to try to mop up funds for the coming election. It is very unfortunate the situation we have found ourselves in Nigeria today,” he lamented.

In acknowledging the abundance of laws that deal on the subject matter, Abuja-based Abubakar Sani said, “We have enough provisions under existing statutes for dealing with the subject matter of the order. Two of them are Sections 29 and 34 of the EFCC Act. So, what’s new? Besides, the validity of the order is open to question, given that, unlike those provisions of the EFCC Act, it purports to empower law enforcement agencies to interfere with a person’s right to property, which is guaranteed under Section 44 of the Constitution without recourse to a court of law. This is obviously worrisome and is of dubious validity.”

“I don’t know what that order has come to change because extant laws are there. I don’t know whether there is a lacuna in the laws that will warrant such order.”

Sani alleged that the APC-led government is desperate as the election draws closer and is therefore trying to shore up its position ahead of the forthcoming election.

“Buhari is loosing his allies and it has to do with his style. His action is unconstitutional,” Sani declared.

But former Deputy Director of the Nigerian Law School, Prof Ernest Ojukwu (SAN), said the new order is not asking for the seizure of assets, but only asking the relevant agencies to take necessary statutory and judicial steps in doing that.

His words: “Mind you the order was not to the security agencies alone, but to departments and others involved. In the American style of democracy, which we are copying, executive orders are made under their law from time to time.

“The principle of executive order is to set policy statements for action. Ordinarily, what the President has asked the security agencies to do are things they ought to do on their own without anybody reminding them. The order clearly dictates how the president wants actions to be done.

“Of course there has been a lot of criticisms against the Federal Government for not taking holistic steps in the fight against corruption. So, if he is responding to those criticisms by this executive order, I don’t see how it is politically motivated.

“There is a mass culture of unethical conducts and practices across the country in private and public sectors and at all levels of government and at different levels of private enterprise. Government has not started addressing any of those factors and of course, those are the areas that need to be addressed,” Ojukwu counselled.

The opposition Peoples Democratic Party (PDP) in a statement on Friday strongly condemned the action, describing it as illegal, unconstitutional, reprehensible and a dangerous step towards a descent to fascism.

In the statement, which was signed by its National Publicity Secretary, Mr. Kola Ologbondiyan, the party insisted that the asset seizure executive order imposed by the president is in total disregard for the provisions of 1999 Constitution.

“The party alerts that the Nigerian Constitution does not, under any section, confer such fascist powers on the President under our democracy and there can be no legitimate latitude of interpretation placed on sections 5 and 15 (5) of the 1999 Constitution cited as justifications for this draconian executive order, that can excuse it.”