Re-Examining The Purport Of The Executive Order No. 6 Of 2018

Critics of the EO6 have outlined several concerns on its legality. By creating rights, obligations, powers and sanctions by executive fiat under which private properties of citizens can be confiscated, it has been argued that the Executive seeks to usurp the legislative powers of the Federation in violation of section 4 of the Constitution. In the same vein, strong opposing views have been advocated to the effect that the power granted to the HAGF in the EO6, to use all available “legal” means to place restriction on assets of persons where the HAGF has reasonable suspicion that such assets are corruption related, violates the constitutional presumption of innocence, smacks off arbitrariness and totalitarianism, imposes the subjective view of one government official on the general public and seeks to usurp the judicial powers of the Federation in contravention of section 6 of the Constitution.

As previously noted, there is another school of thought which opines that the EO6 is unnecessary as there are sufficient extant primary legislations dealing with what the Order seeks to achieve. Notably, agencies of the FGN such as the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices and other Related Offences Commission (ICPC), National Agency for Food and Drug Administration and Control (NAFDAC), National Drug Law Enforcement Agency (NDLEA), and other similar statutory bodies are empowered under their Establishment Acts and some enabling laws to confiscate suspicious assets, albeit upon an order of a court of competent jurisdiction, pending investigation, enquiry or trial. In summary, critics believe that the EO6 is ultra vires the executive powers of the Federation vested in the President by section 5 of the Constitution.

From the Government’s pivotal position, the EO6 is adjudged legal and constitutional having laid its foundation upon sections 5 and 15(5) of the Constitution as stated in its previously quoted recitals. It is equally important to note that the fundamental right granted in section 42 of the Constitution to own private property and the guarantee provided against expropriation of property, are limited under certain circumstances. The exemptions to the general rule against expropriation of property include (i) contrary actions taken pursuant to the execution of judgements or orders of court; and (ii) the temporary taking of possession of property for the purpose of any examination, investigation or enquiry. The thrust of the EO6 could therefore be validly rooted in these two exemptions which are provided in sections 42(2)(e) & (k) of the Constitution. Interestingly, the courts in various judicial decisions have readily held that security and law enforcement agencies (like the EFCC), acting pursuant to the asset freezing/forfeiture provisions in their Establishment Acts or any other enabling law, have powers to confiscate suspicious assets subject to validly made court orders, without violating the provisions of section 42 of the Constitution. See the case of Esai Dangabar v Federal Republic of Nigeria (2014) 12 NWLR (Pt. 1422) 575.

Also, the powers of the President; to execute and maintain the Constitution and to execute all laws made by the National Assembly as well as all matters with respect to which the National Assembly has power to make laws (which is the primary objective for issuing the EO6 and addressing it to the Ministries, Departments and Agencies (“MDAs”) of Governments); have been vehemently advocated by the Executive as counter-argument against allegation of usurpation of the powers of the Judiciary.

Advocates of the EO6 have maintained that the powers granted to the HAGF are not arbitrary as they are to be exercised subject to extant laws and constitutional provisions. They also argue that the “reproduction” of the provisions of section 46 of the Constitution in section 3 of the Order, whereby aggrieved citizens are enjoined to approach the court for redress, shows that the EO6 is not conceived to be an extrajudicial instrument by the Government.

CONCLUSION

Corruption is a social menace with crippling effects on economic growth. High incidence or perception of corrupt practices in a country erodes the confidence of foreign investors and development partners, thereby impeding inflow of needed capital for development. Available statistics indicates how much damage corruption (with associated vices including bribery, fraud, economic sabotage, poor corporate governance, conversion/looting of public assets by government officials etc.) has done to the nation.  Transparency International, the global anti-corruption watchdog ranked Nigeria low in its 2017 Corruption Perception Index (CPI); placing the country in 148th position out of 180 countries ranked in order of perceived transparency in their public sectors. Similarly, the 2017 National Corruption Survey released by the Nigeria Bureau of Statistics (NBS) indicted public and government officials with their private sector cronies for high level bribery and corruption. It is therefore axiomatic that any well-meaning Government (particularly the President Muhammadu Buhari administration which prides itself on its zero tolerance for corrupt practices) would be mindful of eradicating corrupt practices by all means possible.

However, care must be taken to ensure that anti-graft policies are executed through legal and constitutional means, as extrajudicial execution of well-intended policies may produce unintended consequences which may stifle both domestic and foreign investments. For instance, the right to own private property without the fear of possible confiscation in breach of extant laws is a corollary of an open economy. Incidentally, private capital follows open economies run on the basis of rule of law. Looking at the wide definitions given to the words “assets” and “entity”, it is also axiomatic that implementation of the Order would be of great interest to investors and development partners around the world and could either enhance or inhibit the progress already recorded under the Government’s Ease of Doing Business initiatives. Thus any attempt to restrict dealings in suspicious assets of persons in Nigeria must be unquestionably rooted in law.

We note, to the extent that the President issued the EO6 pursuant to his powers under the Constitution and directed MDAs under the purview of the Executive to implement same, the Order remains valid and applicable unless and until declared void by a court of competent jurisdiction. Whether critics will succeed in obtaining appropriate judicial pronouncements against the Order, and whether the Executive will implement the Order in a lawful and equitable manner to engender stability and confidence respectively in the Nigerian political and economic landscapes; are two things which remain to be seen.

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