The recent Executive Order No. 6 of 2018 issued by President Muhammadu Buhari and titled “The preservation of suspicious assets connected with corruption and other relevant offences” has elicited an avalanche of criticisms. This is not unexpected in a developing multiparty democracy like Nigeria where a mischievous chief executive of the state may latch onto the latitude granted the executive arm of government to create executive orders to usurp the functions of the other arms of government. The latest executive order which ostensibly seeks to rein in corruption in the system would appear noble, but it can also be applied against the opposition to achieve partisan and ignoble objectives. It is in recognition of the likely corruption of power that the separation of powers is clearly enunciated in the 1999 Constitution of the Federal Republic of Nigeria (as amended).
There can be no arguing the pervasive menace of sleaze and the need to restore sanity and eliminate impunity in the land, especially in respect of the oft despicable and selfish disposition of some public servants to the public treasury. But in a democracy, the procedures and processes for attaining the noble objective are unambiguously outlined in the grundnorm. Specifically, there can be no replacement for the due process and the rule of law. The principle of separation of powers among the three organs of government remains sacrosanct and none should be seen to be usurping the roles and functions of the other. Any such tendency under whatever guise is illegal and reprehensible.
In a somewhat hazy fashion, Section 315, Subsections 2 and 4a of the 1999 Constitution (as amended) grants limited power to the president to amend existing laws in order to ease implementation, just like Article 2 of the United States constitution accords similar power to the president of that country. But this power is essentially a delegated one. In other words, the ability of the president to make orders is still predicated on the acts of parliament, explicit or implicit, which give him the discretionary power. In addition, the drafters of the constitutions obviously expected the chief executive officers of states to exercise utmost caution and manifest altruism in the exercise of such powers. Ironically, even in the USA where institutions work and office-holders engage in arbitrariness to their own peril, an executive order remains a controversial legislation.
Many are uncomfortable with the seemingly humongous power granted to an arm of government to make, interpret and implement laws and, by implication, change the direction of the course of state affairs with just a stroke of the pen. But the danger inherent in executive orders is even more acute in Nigeria where implementation of state policies seldom follows institutionalised procedures but are often subject to the whims and caprices of the individuals at the helm of affairs. Nonetheless, the comfort is that under democracy, executive orders are subject to both judicial and legislative reviews. Thus, the ongoing debate on the presidential Executive Order No. 6 of 2018 in the House of Representatives is perfectly in order. Aggrieved parties who are averse to the order can also approach the courts for judicial review. But we advise that individuals or groups seeking reconsideration of the order should do so devoid of the distractions of partisan politics that have the potential to obfuscate the real need to abrogate it.
Honestly, given the insalubrious political climate in the country, the timing of the executive order is patently inauspicious and suspicious. The opposition, especially the immediate past ruling party, has reasons to worry because the order will most likely affect its members more. It may be convenient to argue that whoever has no skeleton in his cupboard need not worry about the order but the argument is also tenable that if the government has no ulterior motives, it need not seek to grab legislative, executive and judicial powers all at once. For instance, the executive order seeks to protect from dissipation, assets of Nigerian citizens within the federation known to be complicit or engaged in corrupt practices. But the determination of who is guilty or otherwise of corrupt practices is the exclusive preserve of the courts.
The question is, if a suspect’ s property is seized by the state before the verdict of the court, what becomes of Section 36, Subsection 5 of the constitution which provides that every person charged with criminal offence be presumed innocent until he is proved guilty? And as for dissipation of assets by suspects, the judiciary under the extant laws has the power to protect from dissipation, any assets covered by pending prosecutions. The executive order is obviously superfluous and fundamentally flawed on many grounds. President Buhari is, therefore, enjoined to rethink the order, otherwise the other two arms of government, the legislature and the judiciary, should exercise their power of review in the interest of the rule of law and the due process.
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