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Executive Order No.6 illegal, unlawful, unconstitutional, undemocratic – Mike Ozekhome

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By Dirisu Yakubu
Social commentators in the land are almost unanimous in their belief that the trouble frustrating development efforts in Nigeria is corruption especially in the conduct of government business. After many years of military intervention in the governance of the nation, Nigerians at home and in the Diaspora heaved a sigh of relief in 1999 when the then military regime of General Abdulsalami Abubakar (retd) handed over power to an elected civilian administration of Chief Olusegun Obasanjo.

Mike Ozekhome (SAN)
However, in spite of almost two decades of unbroken democratic rule, the level of progress made across all sectors of the economy has not matched the volume of revenue earnings; a development many blame on corruption. Thankfully, the government of Obasanjo in 2000, established the Independent Corrupt Practices and Other Offences Related Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) in 2003 in a bit to tame all forms of corruption in public and private spheres. Laudable as their efforts have been over the past few years, neither corruption nor corrupt elements have taken the back seat, prompting President Muhammadu Buhari to recently signed Executive Order No. 6 which approves a temporary forfeiture of suspicious assets in the country. It gives the executive the right to forfeit properties suspected to have been acquired with proceeds of corrupt practices.

President Buhari moment after signing the order had said: “I have decided to issue the Executive Order No. 6 of 2018 to inter alia restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to preserve such assets from dissipation, and to deprive alleged criminals of the proceeds of their illicit activities which can otherwise be employed to allure, pervert and/or intimidate the investigative and judicial processes or for acts of terrorism, financing of terrorism, kidnapping, sponsorship of ethnic or religious violence, economic sabotage and cases of economic and financial crimes, including acts contributing to the economic adversity of the Federal Republic of Nigeria and against the overall interest of justice and the welfare of the Nigerian State.”

Aware of possible outburst from civil societies and human right organizations, President Buhari said he relied on Section 5 (Executive Powers) of the 1999 Constitution (as amended) to issue the order. However, this has not gone down well with Mike Ozekhome, a Senior Advocate of Nigeria (SAN) and human right activist many citizens including some members of the nation’s bicameral legislature.

In his argument, the erudite lawyer wondered if by signing the executive order, President Buhari was not usurping the powers of the National Assembly-the only arm of government charged with the statutory responsibility of making laws for the nation. According to him, the Order, if allowed to sail would render the maxim that, “nothing is a crime that hasn’t been established,” inconsequential.

Relying on Section 36 (5) of the constitution which provides that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty,” the Edo-born lawyer argued that what President Buhari aimed to achieve by his action could provoke serious legal tussles, if not handled with decorum.

Describing Executive Order No.6 as illegal, unlawful, unconstitutional, undemocratic and immoral, Ozekhome charged well-meaning Nigerians including the Commander-in-Chief not to choke the principle and practice of separation of powers as practiced by some advanced democracies in the world.

“Section 36 of the 1999 Constitution says that a person is innocent until the contrary is proved. So if the President goes ahead with the Executive Order N0. 6, he would have taken the powers of the legislature and the judiciary.

“It means that the President can seize your property, even when you still have a case in court. The order is illegal, unconstitutional, undemocratic and immoral. He will use it to terrorise Nigerians. He can sit with his kitchen cabinet and call the attorney-general to go and seize the property of anybody he wishes, even when the person may not have been convicted,” he argued.

Ozekhome was not done as he stated that opposition politicians may turn the target of the current President. “It (the Order) is a political weapon because only a court of law can determine whether a property was bought with a proceed of crime or not and whether such property should be seized.

“He will use executive fiat to usurp the extant laws and it is to whittle down the opposition. The Executive Order No. 6 is tempestuous, it has no place in constitutional democracy and it is a blatant assault on the separation of powers,” he explained.

As the argument goes, Executive Orders must and should not be used to legislate on the province of duties already guaranteed by the constitution to another arm of government. If for lack of adequate coverage, the President is at liberty to propose an amendment to the constitution in order to give more bite to the fight against corruption, analysts say.

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