President Muhammadu Buhari on June 5 signed Executive Order No. 6 of 2018 on the Preservation of Assets Connected with Serious Corruption and other relevant offences. According to Buhari, the order is meant to restrict dealings in suspicious assets subject to pending investigation or inquiry. It is also meant to preserve such assets from dissipation and to deprive alleged criminals of the proceeds of their illicit activities which can otherwise be employed to pervert or intimidate the investigative and judicial processes; or for terrorism, financing of terrorism, sponsorship of ethnic or religious violence and economic sabotage.
Buhari described the signing of the bill as another milestone in the fight against corruption, a project that he said was crucial to the viability and continuous well-being of the country. The president said the Federal Government, in line with its anti-corruption strategy, would seek to ensure that the ends of justice are not defeated or compromised by persons involved in a case or complaint of corruption.
This order has since generated a lot of controversy. Both chambers of the National Assembly have raised eyebrows, and even equated it to the infamous Decree 2 of 1984, which was promulgated during the Buhari military era. While the House of Representatives resolved to constitute an ad hoc committee to investigate all the executive orders and other subsidiary legislation, Senate asked Minister of Justice and Attorney-General of the Federation (AGF) Abubakar Malami to appear before it and explain the order’s constitutional basis. The House also directed Malami and Nigeria Law Reform Commission (NLRC) to make available to it a comprehensive list of all subsidiary legislations published in the Federal Government gazette within two weeks.
Representative Nicholas Ossai, who sponsored the motion, said the Executive Order, which empowered government to restrict dealing on the assets of persons suspected of corruption pending the outcome of investigation, was a violation of the 1999 Constitution (as amended) and an attempt to usurp the powers of the legislature. He said the President on his own wrote a law, which he has no constitutional power to do. When the motion was adopted, some APC lawmakers staged a walkout to protest the decision. PDP’s National Publicity Secretary Kola Ologbondiyan said “the Nigerian constitution did not, under any section, confer such fascist powers on the President under our democracy.”
The thrust of the lawmakers’ argument is that the power on asset forfeiture should reside in a High Court judge. Minister of Information and Culture Alhaji Lai Mohammed however said the order is constitutional. He said the President signed it in accordance with the powers vested in him under Section 5 of the 1999 Constitution, saying those opposed to it should go to court. He said implementation of the order would affect 155 corruption cases involving N595.4bn. He said, “Those opposed to it are the corrupt who have become jittery.”
Alhaji Lai said the huge sums involved are greater than the N500bn allotted to the Administration’s Social Investment Programme in the 2018 budget and the N344bn allocated for the construction and rehabilitation of roads nationwide in the 2018 budget. According to him, the executive order became imperative to ensure that justice is not defeated or compromised by persons involved in a case or complaint of corruption. While this concern is real in Nigeria and the money involved in the cases under investigation is also impressive, this matter requires interpretation by the courts as to its constitutionality.
It is doubtful if the Executive, which investigates and prosecutes corruption cases, should also have the power under the constitution to determine forfeiture of assets, even on a temporary basis, without the say of the law courts. Presumption of innocence is a central tenet of the rule of law and it could be unjust to deprive a person of access to his money and property without a court order while the investigation lasts, which in our country could drag on interminably. This Executive Order’s constitutionality must therefore be tested in court.
