BY ABIODUN AIKOMO
In line with the manifesto of the
ruling APC, President Muhammadu Buhari has since assuming Office in May 2015
been committed to the fight against corruption as one of the major policies of
his administration.On 5th July 2018, the President issued Executive Order No. 6
on the Preservation of Suspicious Assets Connected with Corruption (“PEO”) in
furtherance of the Government’s anti-corruption agenda.
The PEO is essentially
a Policy directive to agencies of the Federal Government to synergize the
implementation of the vast powers vested in the President under Section 5 of
the Constitution of the Federal Republic of Nigeria (as amended) particularly
as it relates to the fight against corruption.
Our attention has been drawn to a
number of reactions raising issues as to the legality or otherwise of the PEO.
It was argued inter alia that the PEO is a draconian attempt to usurp the
judiciary’s power of interpretation; constitutes aninfraction of the
Constitution; violates the doctrine of separation of powers; etc. It has thus become necessary to clarify the
foregoing issues to the general public so that the good intention of Mr.
President in issuing the PEO is not misconstrued.
In a Constitutional Democracy
like ours, the primary role of the Executive arm which is the energizing force
of the Government is to set priorities, mobilize support, react to problems,
resolve crisis, make decisions and oversee the implementation or execution of such
decisions. Often times, any or all of the foregoing Executive roles could be
implemented via Executive Orders. Thus, an Executive Order is a legally binding
order given by the President to guide and direct the execution of Laws or
Policies. Section 5 of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended) vests the President with
power to execute and maintain the Constitution and all other Laws in force
within the Federal Republic of Nigeria including but not limited to Acts of the
National Assembly enacted for the purpose of curbing corrupt practices such as
Sections 26, 28, 29 and 30 of EFCC Act, Section 37, and 44-49 of the Corrupt
Practice and Other Related Offences Act, Section 33 of NDLEA Act, Section 167
of the Customs and Excise Management Act, and Section 52(2) of the Trafficking
in Persons Law Enforcement and Administration Act)–theseActs of the National
Assembly, and more, concur with the
spirit and intent of Sections15(5), 44(2) (k), 45(1), 315 and 11(3) of the
Fifth Schedule (Part 1) of the 1999 Constitution of the Federal Republic of
Nigeria as amended. The foregoing Constitutional and Statutory provisions
provide the legal basis for the PEO and it must also be highlighted that the
validity or otherwise of any Presidential Executive Order must be determined by
its compliance with the Constitution.
Onemphasizing the consequences of
corrupt practices in the preamble to the PEO, the fact that corruption affects
every aspect of our existence as a Nation cannot be over emphasized. Some
critics have objected to its inclusion and described it as “stating the
obvious.”With due respect, this objection is in our view, unnecessary as it is
tantamount to questioning the inclusion of preambles in any other Legislation
or Executive Order. For what it is worth, a preamble is an introductory
statement in a legislation that explains its purpose and underlying philosophy.
For the sake of emphasis, the PEO seeks to preserve suspected illicitly
acquired assets from dissipation, and from being available for usage inimical
to the fight against-corruption.Hence, the need for this preamble the inclusion
of which is also in accordance with the layout and structure of a standard
Executive Order since it is legally enforceable and carries the weight of the
law. It was therefore timely for the President to seek to invigorate the fight
against corruption considering its harsh effect on Nigeria and its wealth.
Under the PEO, the scope of
Corruption is stated to include activity involving matters of corruption
generally as may be defined under any enactment, economic sabotage, human
trafficking, drug trafficking and terrorism involving funds.This wide
definition is due to the increased global awareness on the need to trace, seize
and confiscate proceeds or instrumentalities used in perpetrating these crimes
to serve both restitution and deterrence purposes. For instance, all funds
emanating from crimes such as kidnapping, terrorism financing are regarded as
proceeds of crimeunder the Trafficking in Persons Prohibition and Prevention
Enforcement Act 2015 and Terrorism Prevention Act 2013 respectively.
On whether the PEO usurps the
power of the Judiciary to determine who is complicit in corrupt practices,
Section 1(a)of the PEO states that : ‘‘Without prejudice to any laws or
existing suits or any other rights arising out of or in respect thereof, all
assets of any Nigerian citizen… any
person who is responsible for or complicit in, or has directly or indirectly
engaged in Corrupt Practices and Other Related Offences are forthwith to be
protected from dissipation by employing all available lawful or statutory
means, including seeking the appropriate Order(s) of Court where necessary,and
shall not be transferred, withdrawn or dealt with in any way until the final
determination of any corruption related matter against such a person(Italics
and underline for emphasis). It is
clearly stated that preservation of assets shall be done through lawful means
including appropriate Orders of the Court. The above is to the effect that
assets of any person subject to corruption related investigation or litigation
shall not be transferred, withdrawn or dealt with in any way until the final
determination of any corruption related matter against such person. From the
foregoing express provision of the PEO, it is beyond doubt that relevant assets
can only be protected strictly through recourse to a Court of competent
jurisdiction. The PEO has therefore not passed ExecutiveJudgement on any person
as it is being insinuated or at all and is also not an attempt to usurp the
Judiciary’s primary role of statutory interpretation.
The First Schedule to the PEO
listed on-going Prosecutions and directed that the assets involved should be
immediately preserved through lawful means which includes seeking appropriate
Court Orders as may be necessary. It must be further emphasized that the
obligation to ensure preservation of relevant assets in furtherance of their
respective statutory duties is directed at the Enforcement Agencies listed in
Second Schedule to the PEO under the general supervision of the Attorney
General of the Federation. Thus, any insinuation that the clear and unambiguous
provisions of the PEO constitute Presidential directiveto Judges on what to do
is lacking in objectivity.A community reading of Sections 1(c), 3, 4 and 5(c)
of the PEO show without any iota of doubt that the Enforcement Agencies have
aduty of ensuring preservation of illicitly acquired assets by seeking and
obtaining necessary orders of the Court. Therefore, by issuing the PEO, Mr.
President has only given a definite policy direction to the relevant Enforcement
Agencies on how to proceed with implementation of theirrespective Statutes
which provide for freezing of assets. This is the traditional and
Constitutional role of the Executive arm of government.
With regard to the duties of the
Attorney General of the Federation and Minister of Justice (HAGF)under the PEO
as specifically provided in the Section1 (b)(c) and 4thereof, it must be stated
that the power of the HAGF isnot inultra vires the Constitutional power vested
in the Office of the HAGF under Section 174 of the Constitution of the Federal
Republic of Nigeria, or in contravention of any known statutory provision(s).
It is also not an attempt to by-pass theJudiciary.There is a connection between
the Constitutional Powers of HAGF over all prosecutions in Nigeria under the
Constitution and the powers of other statutory entities imbued with
Prosecutorial powers. This underscores the need for coordination among these
prosecuting agencies and the Office of the Attorney General of the Federation.
Instances can be drawn from the traditional role of the Director of Public
Prosecutions (in the Office of the Attorney General) who provides legal advice
to the Nigerian Police and other MDAs on criminal matters and letters
repertories on extradition. It must also be noted that the HAGF being a beacon
of Justice can be given responsibilities under any Act of the National Assembly
in fulfilment of his Constitutional duties.For instance, Section 43 of the
Economic and Financial Crimes Commission Act empowers the HAGF to make Rules or
Regulations with respect to the exercise of the duties, powers and functions of
EFCC its establishment Act. Also, corruption cases can be prosecuted in the
name of the HAGF under the Corrupt Practices and Other Related Offences
Act.Assuming without conceding that the coordinating function of the HAGF as
stated in the PEO is not expressly contained in some of the relevant Statutes,
it must be noted that the President in his primary Constitutional role of
implementation of Laws can via an Executive Order direct implementation of
statutory functions where such directives do not violate nor offend the
Constitution and any of the relevant Statutes.
The President can pursuant to
Section 315 of the Constitution even modify any existing law as may be
necessary to bring it into conformity with the provisions of the Constitution.
In AG Abia V AG Federation [2003] 4 NWLR (Part 809) pages 124 at 177 paragraph
F, the Supreme Court stated that the two tests for determining
Constitutionality of modification to an existing law are whether: (a) the
modification order brings the relevant Act into conformity with the provisions
of the Constitution; and (b) there has been an infraction of the Constitution
by the Order. Therefore, the directive of Mr. President under the PEO that the
HAGF shouldcoordinate and oversee the activities of other agencies with
prosecutorial powers is not and cannot amount to a violation of the
Constitution or any other Statute governing the functions, powers and duties of
these agencies.
It must be emphatically noted
that Executive Orders carry the force of law. Duties and obligations have been
stated under the Executive Order it is therefore a necessary consequence
forsanctions to be imposed on any person who refuses to comply with same. While
Laws/Actsrequire passage by the Legislative arm and assent by the
President,Executive Orders are issued by the President and have influence over
the internal affairs of the Executive arm of government,deciding how and to
what degree legislation will be enforced in dealings with emergencies.It can
only be set aside if proven in Court to be whimsical and capricious. The exact
wordings of the PEO as specifically directed to certain heads of enforcement
agencies is that they: ‘’shall forthwith be subject to the disciplinary
procedure in accordance with Public Service Rules and investigation by the Code
of Conduct Bureau.’’ This is Constitutional, and in line with best practices
the world over.
In conclusion, the general public
should please note that there is no turf war in governance and the three arms
of government do not co-exist at dagger’s drawn seeking to undo or outdo one
another. Notwithstanding the clear cut responsibilities of each arm of
government, there is bound to be overlap as the arms of government exist to
serve the State and are all aimed at achieving good governance. The United
States of America which remains the leader of the Free-World, notwithstanding
its century-long constitutionalism and existence of long-established functional
and effective governmental institutions, successive American Presidents have
used Executive Orders more than any other nation of the world. There is nothing
unconstitutional about the PEO and we should not allow any form of mischief to
take away the inherent benefits of this pro-active policy directive of the
President on the fight against corruption.
Subjective opinions and arguments
advanced by any group or individuals cannot determine the validity or otherwise
of the PEO or indeed any policy of the government. It is expected that anyone
who is aggrieved should approach the Court of Law to determine the validity or
otherwise of the PEO. From judicial precedent, when the Court is called upon to
determine the validity or otherwise of an Executive Order, the Court cannot
usurp the Power of the President to make such Order in the course of performing
the traditional Executive Role of Implementation of Laws. In Ohaji v Umamka
[2011] 4NWLR (Pt 11236) at page 148 the Supreme Court held that where there is
a statutory provision for making an Order andwhere the making of same is
reposed in the President of the Republic or Governor of a State, such function
cannot be usurped by the Court.
The Administration of President
Buhari will remain committed to its anti-corruption agenda, and together we
shall win the war against corruption.
God bless the Federal Republic of
Nigeria.
Aikomo is special assistant to
the president on financial crimes in the office of the attorney-general of the
federation and minister of justice
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