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Governing by Decree

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By Obadiah Mailafia

BETWEEN July and this month President Muhammadu issued two decrees aimed at further curbing corruption, money laundering and tax evasion: the first, Executive Order 6, and the other, Executive Order 008. An executive order is a decree issued by the executive without necessarily seeking approval of parliament or the judicature. Most constitutions do empower the executive to take all such measures as would conduce to sound government and public administration in the interest of the overall common good. Donald Trump probably set a world record by the number of executive orders that he dished out during his first week in power. The current incumbent of the high magistracy of the American republic has issued no less than 42 Executive Orders in his first year alone.

Section 5 of our 1999 constitution, as amended, empowers the President to take all such measures as would enable him tackle all corrupt practices and ensure good government in the overall national interest, so long as these orders do not amount to creation of new constitutional powers or conflict with existing legislative and constitutional provisions.

President Buhari

Executive orders have been a part of our constitutional traditions and practices. In 1980, President Shehu Shagari issued an Executive Order modifying the Public Order Act. This was unsuccessfully challenged in court by the Governors of Ogun and Borno States at the time.  President Shagari had his way. In 1999, President Obasanjo issued Executive Orders to abolish the Petroleum Trust Fund, PTF,  and to proclaim May 29 as “Democracy Day”.  More recently, Vice-President Yemi Osinbajo, while acting for his boss, also passed two executive orders, namely, on the Ease of Doing Business and on Expeditious Issuance of international Visas in our embassies abroad. So, let’s agree that President Buhari has not done anything out of the ordinary.

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Captioned Preservation of Suspicious Assets Connection with Corruption and Other Related Offences,  Executive Order 006 was passed on  July  5,2018, with the express objective of empowering the Attorney-General of the Federation to restrict dealings in suspicious assets relating to anti-corruption efforts against politically exposed and other such persons. The aim is to restrict people under investigation from gaining access to suspicious assets that are under their control or from access to proceeds from such assets in a manner that might potentially pervert the course of justice.

It was rather surprising to me that the executive could declare “a national emergency on corruption” so casually in a decree of this nature, even if we accept within his constitutional rights.  And if we may quote the President in full:

According to analysts, the decree aims to restrict access to the illicit assets of no less than 115 former governors, ministers, businessman and other politically exposed persons that are being targeted. The president explained that the value of the total assets in question are of the order of magnitude of N595.5 billion, an amount that exceeds the N500 billion that the government has committed for social welfare under the Social Investment Programme under the 2018 Appropriation Bill. The amount is also almost double the N344 billion what the 2018 budget has committed for Department of Works for construction and rehabilitation of roads across the country.

Understandably, Executive Order 006 has caused major disquiet in the National Assembly. In an uproarious session, several voices in the House of Representatives condemned the decree as not only amounting to usurpation of legislative and judicial powers, but also as a subtle means of turning the president into an emperor. They made reference to Section 44 Sub-section 2(K) of the 1999 Constitution which restricts the application of compulsory acquisition of movable or immovable property in any part of the country except on the temporary purpose of any examination, investigation or inquiry.

One of the lawmakers also made reference to Section 8 of the Recovery of Public Property (Special Provisions) Act of 1983, Section 330 of the Administration of Criminal Justice Act of 2015 and certain provisions of EFCC Act, which already take care of such situations. It is feared that Executive Order Number 006 could end up having a draconian effect similar to the dreaded Decree Number 2 of 1984 that was used as a weapon against perceived political enemies.

The House passed a resolution urging the president to “suspend and discontinue the application and implementation of Executive Order 006 of 2018 in view if it’s controversial nature and its conflicts with relevant provisions of the law”.  They also invited the Attorney General and Minister of Justice, Abubakar Malami, and Kefas Magaji, Chairman of the Nigerian Law Reform Commission to submit a comprehensive list of all subsidiary legislations in the country that are published in the federal gazette.

In a recent development, a high court in Abuja gave a ruling against a class action suit brought by two lawyers, Ikenga Ugochinyere and Keneth Udeze, challenging the legality of Executive Order 006. The judge, Justice Ijeoma Ojukwu, dismissed the suit for lacking merit, opining that it is within the constitutional powers of the president to issue such executive orders so long as they not conflict with the doctrine of separation of powers. The judge ruled that Executive Order 006 is a policy directive for the implementation of provisions of existing laws, adding that it also recognised the right of every citizen to approach the court for redress if aggrieved by its enforcement.  While noting that it gives the AFG the discretion on when to seek the court’s permission, it is still the case that he must at all times obtain a court order.

My issue with this decree is neither with respect to its legality or constitutionality but with its potentially perverse outcomes.  First of all, there is no guarantee that it would not be used selectively as a weapon to deal with the political position. Some aspects of the much-vaunted anti-corruption drive appear to be a one-sided politically-motivated exercise. Nigerians are no longer confident that the anti-corruption by the APC-led administration is devoid of sentiments.  At a time of electioneering campaigns, we should not be surprised if we wake up one morning and the entire assets of individuals, companies or states are frozen on the caprices of the AGF ostensibly as part of an anti-corruption investigation.  Nigerians are no longer fooled.

Secondly, the commercial banks have taken a hit from a government which seems to behave as if anyone who happens to be wealthy must be a criminal. Because of this primitive attitude, many affluent people, including market women and traders have taken their money out of the banking system. The Treasury Single Account, TSA, welcome as it may be, has dramatically affected the liquidity of the banks. Any form of policy that succeeds in further driving depositors away from the banks can only affect the banks even more deleteriously. We would all be the worse for it.

In the current political atmosphere, there is no doubting that Executive Order 008 may okay in law but is bad policy. In our twenty-first century, public policy must be designed in an atmosphere of political acceptability. For policies to be sustainable, they must win acceptability by all key stakeholders. They must also derive from sound reasoning, rigorous analytics and a robust framework for implementation. This decree is both bad in form and ill-advised in intent.  It will inevitably fail.

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