The Executive Order No. 6 on Preservation of Suspicious Assets Connected With Corruption and Other Relevant Offences, is, in my humble opinion, unconstitutional to the extent that it seeks to constrain the authority and independence of the judiciary in dealing with cases before the court as the court deems fit under existing laws and principles. To this extent, the Executive Order No. 6 carries the virus and wears the garb of an ouster of court's jurisdiction.
The basis for this conclusion that the Executive Order No. 6 is unconstitutional lies in the provision of the Order that stipulates that assets involved in particular cases already before the court and listed in the First Schedule to the Order as well as other cases that may be compiled from time to time by the Attorney General of the Federation shall not be permitted to be transferred and/or dealt with until the determination of those cases. This provision clearly amounts to law making. The courts are being directed by the Executive order not to allow assets involved in existing and future cases that may be listed by the Attorney General not to be allowed to be dealt with in any manner. In other words, regardless of the merit and facts of each case, once a case is listed by the Attorney General, the court has no discretion, by virtue of the Order, such assets must not be allowed to be dealt with in any manner. Within the context and import of this particular provision, Executive Order No. 6 is an ouster legislation - it ousts the authority of the court to allow such assets to be dealt with once the Attorney General marks or lists it as an asset protected under the Order.
Such a provision as contained in Order No. 6 contravenes section 4 sub (8) of the Constitution which provides that the Legislature shall not enact any law that ousts or PURPORTS to oust the jurisdiction of the court. In other words, Executive Order No. 6 has done what even the Legislature is not allowed to do.
The existence of Executive Order No. 6 is therefore a dangerous continuation of the culture of impunity of the highest order. It violates the separation of powers principle enshrined in the Constitution. Whilst section 4 of the Constitution vests in the Legislature the power to make laws, Section 5 vests in the Executive to execute or implement or maintain the law made by the Legislature and section 6 vests the power of interpretation of the law in the judiciary.
I have no doubt in my mind that law making by the Executive cannot be justified under section 5 of the Constitution under the guise of Executive Orders. While section 5(1)(a) provides that t Executive powers may be exercised directly by Mr. President or indirectly through the Vice President, Ministers or any other delegated public officer, Section 5(1)(b) simply provides that exercise of Executive powers consists of either execution or maintenance of the provisions of the Constitution and laws made by the Legislature, the National Assembly. Under the Written constitution of Nigeria, it is not constitutionally allowed for the Executive Arm of Government to make laws. Executive Orders that go beyond issuance of administrative circulars on how the Constitutional provisions and statutes may be actualised but result in law making are unconstitutional. If it is true that a Federal High Court has declared Executive Order No 6 to be constitutional, such a Ruling deserves to be appealed. If it is not appealed for it to be overturned, it would amount to acceptance of totalitarianism by the general public and a celebration of the destruction of the authority of the courts by the judiciary itself.
Unless Executive Order No 6 is set aside as a bundle of unconstitutionality, it would mean acceptance of an attempt to codify into law the unfortunate practice of discriminatory fight against corruption, which practice is corruption itself.
The major goal of Executive Order No 6 is to target individual persons involved in existing suits, which are listed in the first schedule to the Executive Order and those the Attorney General may list from time to time, pursuant to the Executive Order.
It must also be pointed out that the Executive order No 6 elevates the Executive Order over and above existing laws - the Constitution and Statutes. Whereas the Constitution does not permit individual-focused/targeted laws, the Executive Order has empowered the Attorney General to compile lists of individuals for discriminatory intimidation. Whereas Executive Order No 6 mandates compilation of list of assets and cases involving suspicious assets, there is no corresponding responsibility for compilation of recovered loot, the value and what becomes of them in terms of ensuring they benefit the public. The whole exercise then appears to be nothing but creating sensational news about fighting corrupt and not about the benefits derivable from fighting corruption. From this point of view, the Executive Order is nothing but codification of tyranny and arbitrariness into law. Within this context, Executive Order No 6 is all about 2019 general elections. It is likely that the Executive Order No 6 would be used as an instrument of maintaining political hegemony of the Ruling party at the centre. It is an instrument of political control and domination through discriminatory acts. Perhaps, apart from Balarabe Musa, former Executive Governor of Kaduna State, Public perception is that an average public officer, particularly the politician, is corrupt. An overwhelming majority of top public officers are wealthy without any single factory as source of their wealth. The public vaults are the sources of their rotten wealth. Let the APC controlled Federal Government begin the application of Executive Order No. 6 against some prominent members of the National Executive Council (NEC) of the APC and some of those in the Presidency again whom there has been public outcry relating to corruption. Let the public know how much of their wealth is from any productive activity. When this is done, then we can clap for Executive Order No. 6 as an altruistic "legislation".
But for now, with the discriminatory and unconstitutional travel ban on persons involved in the cases listed in the First Schedule to Executive Order No 6, we have cause to express concerns that Nigeria is under unprecedented risk - under the control of politicians who know they lack higher moral authority but pretend as if they are better than those they are targeting. The danger is that by the time they succeed in silencing opposing Ruling parties, they would descend heavily against popular mass organisations.
Femi Aborisade, Esq. 16th October 2018.
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