The Executive Order No. 6 of 2018 “on the Preservation of Assets connected with Serious Corruption and other Relevant Offences,” recently signed by President Muhammadu Buhari, has generated diverse reactions across the nation. While some people condemn the order, others applaud it as the right tool to fight the war against corruption.
The President explained that he relied on Section 5 of the 1999 Constitution (as amended), which empowers the President to execute and maintain the provisions of the Constitution, as well as all laws made by the National Assembly. The Executive Order also restrains owners of assets under investigation from carrying out any further transaction on such assets. Also, the President has mandated the Attorney General of the Federation and Minister of Justice, Abubakar Malami, to publish from time to time, a list of all assets protected pursuant to the Order among other provisions in the proclamation.
In its defence of the Order, government stated that contrary to the view of a section of the public, it is not directed at any specific assets at this time, saying that the Order will give the President the power to freeze any asset of anyone who is being tried or interrogated or suspected of corruption of any fund illicitly acquired pending the decision of a court of law, or pending the inability of the person to establish ownership.
Government also explained that such assets will not be seized permanently. Rather, it is a temporary forfeiture pending the final outcome of the judicial procedures. But most critics of the Order unanimously agree that it is unconstitutional. Their argument is that the Order has no force of law.
We are not persuaded that the President has followed the right procedure, based on Constitution, which is the supreme law governing our country. While we support the President’s avowed fight against corruption, it is necessary that the rule of law should be followed in dealing with the issue of corruption. The way the president goes about the corruption fight, sometimes shoving aside the constitution which is the grund norm of any democratic society, makes some people feel genuinely concerned that some of his actions, including the latest Executive Order, is targeted at the opposition and some perceived political foes. No matter how well-meaning the President is for the country and the need to fight pervasive corruption, he should differentiate the powers of a President under a constitutional democracy and that of a Head of State under a military regime.
The President’s Executive Order has a disturbing semblance of a decree that obtains only in military regimes. It also runs contrary to Section 36 (5) of the 1999 Constitution, which states that “Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.” Moreover, the timing of the Executive Order, irrespective of the government’s argument of its good intentions, could be prone to abuse. And those who feel concerned that it could be applied against persons who are victims of wrong suspicion may not be crying wolf.
While we agree with the President that recipients of ill-gotten wealth are a danger to the society, we also point out that due process must be followed in the war against corruption. Also, the power to order the seizure of any asset resides with the court of law.
Moreover, there are sufficient legislations and legal procedures that can take care of what the Executive Order is intended to achieve. For instance, Sections 29 and 34 of the Economic and Financial Crimes Commission (EFCC) Act deal with the forfeiture of illicit assets pending the outcome of a court decision. Similar provisions exist in the ICPC law and Money Laundry Act. We believe that the Executive Order is needless and undemocratic. It could lead to the tyranny of the Executive arm of government and perhaps endanger the tenets of our democracy.
We remind all arms of government, the executive, the legislature and the judiciary to function strictly in line with their constitutional duties. Sections 4, 5 and 6 of the Constitution enshrine seperation of powers. Therefore, when the President assumes Executive power to impound other people’s property without any court judgment, he will be trespassing in the judicial province. And this is a breach of the principles of the separation of powers.
It is unfortunate that there is a seeming adversarial relationship between the presidency and the other two arms of government, which has created a disharmony instead of the harmony of interrelationship that sustains democracy. Whether the Executive Order is indicative of the President’s impatience with the National Assembly or not, there is need for unity of purpose among the three arms of government and due process serves as the glue that binds democratic processes and institutions.
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Author: Tokunbo David