How Buhari’s executive order stokes resentment in polity
President Muhammadu Buhari’s proclamation of Executive Order No. 6 of 2018 on the “Preservation of Assets Connected with Serious Corruption and other Related Offences” has generated serious concerns among different categories of stakeholders, including civil society groups, lawyers, lawmakers, politicians and many others.
A few days after the president signed the document, a flurry of scathing criticisms ensued. At both chambers of the National Assembly, members did not hide disapproval of the order, which they believe is a direct usurpation of powers of parliament in a democracy.
As a result, motions and resolutions were immediately taken particularly in the Senate to condemn it. Lawmakers at the Senate were particularly upset about the executive order for giving express powers to security agencies to freeze assets of persons standing trial without recourse to the court.
The Senate resolved to summon the Attorney General and Minister of Justice. Abubakar Malami, to appear before it and “explain the constitutional basis for the controversial Executive Order No. 006 and the other executive orders, which have been issued by the President in clear appropriation of the functions of the National Assembly.”
In a separate resolution, the senators said the best way to fight corruption was to expose and prosecute cases in a very professional way. They urged the agencies to avoid undue publicity so as not to compromise the strength of evidence that could be presented to secure conviction in judicial proceedings.
A point of order by Senator Chukwuka Utazi (PDP-Enugu) at plenary last Wednesday generated further concerns on the defects and deficiencies in the anti-corruption crusade.
In his remarks, the Deputy Senate President, Ike Ekweremadu, said all hands must be on deck to fight corruption, stressing that the war must not be selective or subject to media trial and unnecessary drama.
Ekweremadu assured of the National Assembly’s determination to pass legislation that support the fight against corruption saying: “I am happy to announce that the NFIU (Nigeria Financial Intelligence Unit) bill has been signed into law; this is a good development to us as a country.
“It is this parliament that passed the law that set up the EFCC, ICPC and we will continue to do that. We must, however, make sure it is not a tool to fight political enemies and we must ensure that the fight is efficient and effective.”
But, when Buhari, in rationalizing the Executive Order 6, described it as another milestone in the fight against corruption, stressing that it is very crucial to the viability and continuous well being of Nigeria.
The president said available records shows that the aggregate value of funds involved in some ongoing prosecution of high profile corruption-related cases were over N595 billion. Going by the signed order, therefore, the money will remain frozen until when the courts dispose of the cases.
Yet Buhari’s postulations attracted further criticism, as many believed that there were sufficient laws to deal with assets suspected to be from the proceeds of corruption. Observers expressed the hope that the alleged flagrant violation of the constitution by the President would be challenged immediately since, according to them, its objective is to convict people even before a court of competent jurisdiction rules.
In signing the order, 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 its provisions, 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.”
The President 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, remarking: “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 recently ruled that Bukola Saraki has no case to answer. What if his properties were already confiscated?”
Maintaining that such actions were aimed at intimidating the judiciary, Okeke 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.”
Edo State-based lawyer, Solomon Ukhuegbe, expressed the view that an executive order issued by the President outside a specific mandate by legislation and outside a state of emergency, must be grounded on some constitutional authority.
Ukhuegbe said 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.
He stressed: “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 citizens.”
While expressing hope that the order would be successfully challenged in court even before the “ink dries on the parchment,” the lawyer queried: “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 therefore chosen to act independently?”
Another lawyer, Dayo Ogunjebe, said 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. The situation we have found ourselves in Nigeria today is very unfortunate.”
Also acknowledging the abundance of laws 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 was desperate as the election draws closer and was therefore, trying to shore up its position ahead of the forthcoming poll.
“Buhari is losing his allies and it has to do with his style. His action is unconstitutional,” he declared.
Also, the opposition Peoples Democratic Party (PDP) strongly condemned the action, describing it as illegal, unconstitutional, reprehensible and a dangerous step towards descent to fascism.
In a statement hinting on the possibility of going to court to challenge the proclamation, PDP stated: “Already, our lawyers are considering a legal action against the Federal Government on the illegality of Mr. President’s action in the interest of Nigeria and Nigerians.”
Describing it as an unconstitutional, the party contended that “the Nigerian constitution does not, in any section, confer such fascist powers on the President in our democracy and there can be no legitimate latitude of interpretation placed on the President in respect of sections 5 and 15 (5) of the 1999 Constitution cited as justifications for this draconian executive order, that can excuse it.
“In order words, Mr. President wants to change our democratic governance to a military regime, in line with his lamentation, two days ago, that the fight against corruption will be better under a military regime than under a democracy.”
For fear of negative impression on its image, PDP said it was not in anyway opposed to the fight against corruption, pointing out that the imposition of the Executive Order, which was radically at variance with the provisions of the constitution, was totally unacceptable.
The party said: “This Executive Order 6 of 2018 is a reenactment of the obnoxious Decree 2 of 1984, which incidentally was also enacted during the then military Head of State, General Muhammadu Buhari, and this must not be permitted in our current democratic dispensation.”
PDP expressed the fear that if allowed, “this order would confer limitless powers on Mr. President, whose administration’s penchant for violation of rules and order already suggests a readiness for autocracy and a drive towards fascism.
“In a democracy, the role of the executive arm of government is to enforce court orders/judgments handed down based on the interpretation of existing laws. Any suggestion to the contrary, as clearly intended by this Executive Order, is totally an aberration and inconsistent with the constitution of the Federal Republic of Nigeria.”