The Legal Issues Arising From The Executive Order No. 6 Of 2018 Signed By President Buhari By O. G. Chukkol

The Executive Order signed by president Buhari has elicited mixed views in the country. Some have been arguing that Mr. President has no power to issue the order and they went to the extent of suggesting that it contravenes right to acquire and acquire and own property and therefore unconstitutional. Such arguments are not surprising anyway. The aim of this article is to refute such views. WHETHER PRESIDENT BUHARI HAS THE POWER TO ISSUE EXECUTIVE ORDER In simple terms, an Executive Order is an official directive from the president that has much of the same force as a law made by the National Assembly to agents or agencies of the Executive Arm of government (example the police, EFCC, NDLEA etc) on how certain things are to be done or how they are to utilize the resources under their control. It has its origin in the United States of America. With the exception of William Henry Harrison, all presidents of the United States beginning with George Washington in 1789 to the incumbent Donald Trump have issued it. Though such power is not expressly provided in the Constitution of the Federal Republic of Nigeria, 1999 (as amended), however, section 5(1)(a) & (b) and 130 thereof vests executive powers in the president and empowers him to EXECUTE and MAINTAIN the provisions of the constitution and all LAWS made by the National Assembly. Mr. President’s powers are so enormous that he can do anything to PROTECT the constitution including making Executive Orders as far as it does not have an inhibitive effect on the provisions of the constitution or any law made by the National Assembly. The Executive Order No. 6 of 2018 is in order because it is made pursuant to and seeks to enforce section 15(5) of the constitution which obliges Mr. President to abolish all corrupt practices in Nigeria. WHETHER THE ORDER INFRINGES ON THE RIGHT TO ACQUIRE AND OWN PROPERTY Garba Shehu rightly stated that the Executive Order is not meant to forfeit properties of people but to “temporarily deny access to the properties…” but a commentator described Shehu’s statement as “distinction without a difference”. With profound respect is Garba Shehu that is correct. A careful perusal of the Order shows that it is simply meant to effect temporary forfeiture, not permanent forfeiture. It is not in any way meant to infringe on anyone’s right to acquire and own property as provided under section 44 of the constitution. I am fortified with the provisions of section 44 of the constitution which prohibits compulsorily taking away someone’s property with particular emphasis on subsection (2) paragraph (k) which provides as follows: ”Nothing… shall be construed as affecting any general law relating to the temporary taking of possession of property FOR THE PURPOSE OF ANY EXAMINATION, INVESTIGATION OR ENQUIRY” (Capitalized for emphasis) While giving life to the above provision in the recently decided case of DAME PATIENCE JONATHAN v. FRN (2018) LPELR-43505(CA), the court held that the provision of Section 44 (2) (k) of the 1999 Constitution creates an exception to the general right given to citizens to own movable and immovable properties. The court followed its decision in the case of ESAI DANGABAR VS FRN (2014) 12 NWLR (PT. 1422) 575 and held that the Provision of Section 44 (2) (k) of the 1999 Constitution showed the intention of the lawmaker to validate any such law as Sections 28 and 29 of the EFCC Act which allows temporary taking over of assets of accused persons pending the hearing and determination of a criminal case that has been pending against them. Similarly, the Court of Appeal in the interpretation of Section 35 and 36 of the NDLEA Act which are similar to the provisions of Sections 28 and 29 of the EFCC Act held in the case of:- FRN vs. IKEDINWA (2013) LPELR – 21120 (CA) that the provisions of Sections 28 and 29 of the EFCC Act are validated by the provision of Section 44 (2) (k) of the 1999 Constitution. It follows therefore that since the Executive Order signed by president Buhari is not to deprive anyone ownership of his property, but merely a form of investigation, it is justified by the above section of the constitution. It is apposite to re-echo the words of advice of Galinje, J.C.A. (as he then was) in F.R.N. v. Fani-Kayode (2010) ALL FWLR (PT 534) 181N @ 195 para F where His Lordship admonished/set the roadmap for Courts in the fight against corruption as follows: “If the Nigerian nation has taken a decision to fight and eradicate corruption, legal technicalities should not constitute a roadblock to that effort. For the essence of law is to protect and preserve the political and social well-being of the State and its citizenry. Any interpretation ascribed to any statute that fails to conform to this value must be ignored since that will suggest the enthronement of anarchy.” In the light of the foregoing, the Executive order no. 6  of 2018 signed by president Buhari can stand the test of the constitutionality contrary to the submission of some commentators and remains a law until set aside by a court of competent jurisdiction or overridden by an Act of the National Assembly or the president himself withdraws it. BUT DO WE ACTUALLY NEED THE EXECUTIVE ORDER? Though the Order is constitutional in my view, we do not need it in Nigeria. We already have replete of statutory authorities that have taken care of temporarily forfeiting properties of suspects pending investigation and prosecution. Examples are sections 17 of Advance Fee Fraud Act, 24 of NAFDAC Act, 36-37 of ICPC Act, 35-36 of NDLEA Act, 20-34 of the EFCC Act, etc and the foregoing provisions have been enforced in a galaxy of cases. However, I need only cite one or two of such decision here: EFCC v. FAYOSE (2018) LPELR-44131(CA) DAME PATIENCE JONATHAN v. FRN (2018) LPELR-43505(CA) ESAI DANGABAR VS FRN (2014) 12 NWLR (PT. 1422) 575 FRN vs. IKEDINWA (2013) LPELR – 21120 (CA) ETC. Mr. President should have rather worked on strengthening the law enforcement machinery on the ground than adding more laws because as a learned writer, E. laslett once said: “Where law cannot be executed it is all one as if there were no law…” O. G. Chukkol, Student, Faculty of Law, ABU Zaria. 08032470318 or email- oliverchukkol@gmail.com]]>