The provisions of the Presidential Executive Order No. 6 of 2018 on the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences, recently issued by President MuhammaduBuhari raises serious issues of constitutionalism, legality and due process of law.
Nobody doubts the fact that corruption is a very serious threat to Nigeria’s development and the realisation of the human rights and fundamental freedoms of the majority of the population, especially in matters of economic, social and cultural rights. Indeed, there is a constitutional obligation in the Fundamental Objectives and Directive Principles of State Policy in S.15 (5) for the state to abolish corrupt practices and the abuse of power.
The foundation for the challenges is the supremacy of the clause found in S.1 (3) of the Constitution, which declares that if any other law is inconsistent with the provisions of the constitution, the constitution prevails and such law shall to the extent of its inconsistency be voided. The constitution assigns legislative powers to the legislature while giving executive and judicial powers to the executive and judiciary respectively. Although a water tight separation of powers is impossible, the constitution guarantees separation of powers to the extent that no arm encroaches on the duties and powers of the other. The language of S.5 of the constitution defining executive powers of the Federation vests same in the President and his support crew, extends to the execution and maintenance of the constitution, all laws made by the National Assembly and to all matters with respect to which the latter has, for the time being, power to make laws.
From the foregoing constitutional executive mandate, an executive order can only be issued to enforce already existing powers, duties and mandates under existing laws; to manage staff and resources of executive agencies for greater economy, efficiency, effectiveness and for the realisation of high level policy goals. Therefore, an executive order cannot be used by the executive to create new powers, duties or rights or expand existing ones beyond the mandate given by the legislature. Instances of previous executive orders will demonstrate this. The executive order on support to local content in public procurement was made pursuant to the fulfillment of the domestic preference section of the Public Procurement Act, 2007. Thus, there was an existing law which had made provision for local content and the executive order merely sharpened and clarified how it will be implemented.Further, executive orders cannot be used to encroach on the province of duties already guaranteed by the Constitution to another arm of government. Any such purported exercise of power under the two scenarios above will be ultra vires the executive and as such will be void to the extent of its inconsistency with existing laws and the Constitution. It is pertinent to note that in no part of the Constitution is the term “executive order” used and one could argue that executive orders are unknown to our jurisprudence. However, Nigeria seems to be copying this practice from the American presidential practice since our Constitution is modeled after theirs. It is as such conceded that there is nothing wrong if we adopt the practice in Nigeria.
Executive order No.6, to the extent that it seeks to restrict dealings in suspicious assets subject to corruption related investigation or inquiries in order to preserve same in accordance with the rule of law and to guarantee and safeguard fundamental humanrights is a welcome development. Preservation of the subject matter of corruption, so that it is not dissipated is a good objective of criminal law jurisprudence. To the extent that it urges and encourages the Attorney General of the Federation to take steps through the judicial process to freeze and hold onto assets so that they are not dissipated is quite proactive of the President. Further, the extant practice where the state after investigations, goes ex-parte before a judge for a temporary freezing order and thereafter serves the suspect the ex-parte order, which invites the person to come and prove that he legally and legitimately acquired the property in question is still good practice. Although there may be arguments of reversing the presumption of innocence, it is still a good practice which has evolved from assets recovery jurisprudence across the world, especially when the assets far exceed the legally known sources of income of the suspect. Constitutionally, this can be justified as facts peculiarly within the knowledge of the suspect, being a particular fact which he has the burden of proving under the fair hearing rules.
The power to determine which assets should be subject to temporary or final confiscation is a judicial power vested in the courts by S.6 of the Constitution for the determination of the civil rights and obligations of the citizen. This is further reinforced by the provisions of the constitution which guarantees that in the determination of civil rights and obligations, fair trial by a court or tribunal established by law and constituted in such a manner to secure its independence and impartiality- the fair hearing rule. It is also supported by the constitutional right to property and freedom from expropriation without due process. Essentially,preservation of assets, subject matter of corruption must be done within the confines of the rule of law, through powers and duties conferred by already existing statues or through the orders of courts of competent jurisdiction. It cannot be achieved by an executive order as executive orders cannot be the basis for the creation of new rights, duties, powers and mandates. Also, no two cases are the same and in the absence of an enabling law, a schedule in an executive order cannot be the basis for the forfeiture of assets, whether temporary or otherwise. The order for temporary forfeiture or forfeiture pending the determination of the case is to be made on a case by case basis, after the court has duly examined the circumstances and the preliminary weighing of the available evidence.
Creating a schedule in an executive order and listing the names of suspects or accused persons whose property the executive order purports to block or freeze is like placing the cart before the horse and as such, it is illegal, unconstitutional, null and void and an audacious attempt by the President using his Attorney-General to usurp judicial powers. For accused persons who are already before the Courts, the Attorney-General knows the appropriate application(s) to bring or file to achieve freezing or blocking. For suspects who have not been charged to court, there is also a known legal procedure which the Attorney-General can take to achieve freezing.
In conclusion, the road to hell is paved with the best of intentions, with golden promises of achieving Eldorado. Accumulating incredible amount of powers in the Presidency is a sure recipe to dictatorship, anarchy and the collapse of democratic rule. There are clear cases of corrupt transactions where a prima facie case has been established and the administration refuses to prosecute. The grass cutting scandal of the former Secretary to the Government of the Federation is a case in point. And now, an arbitrary list of persons whose assets are to be forfeited! This is not the democracy we fought. Mr. President and the Attorney-General, there is one clear message for you: Go back to the courts and ask for forfeiture of assets to preserve the res on a case by case basis and let the courts decide.
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