•Judge: its operations must be subject to constitution
A Federal High Court in Abuja yesterday upheld the constitutionality of the Executive Order 6 signed recently by President Muhammadu Buhari for the preservation of assets connected with corruption and other related offences.
The order empowers the Attorney General of the Federation (AGF) to take steps, in liaison with relevant investigative agencies, to temporarily seize property linked with corruption pending investigation and conclusion of trial.
This is to prevent the dissipation of such assets.
In a judgment yesterday, Justice Ijeoma Ojukwu, held that it was within the powers of the President, as granted by the Constitution, to issue Executive Orders for the execution of executive policies, as long as such orders did not offend the doctrine of separation of powers.
Justice Ojukwu said the powers given to the AGF under the Executive Order 6 must be exercised in accordance with the provisions of the Constitution.
The judge, who noted that the order seemed to give the AGF the discretion on when to seek court’s permission to seize any suspected property, said the AGF must, at all times, obtain a court order before seizing any asset.
She said such application for the court’s permission to seize any suspected asset could be made ex-parte.
Justice Ojukwu said the Executive Order 6 did not violate the right of citizens to own property, but was informed by the President’s willingness to preserve suspected property from being dissipated.
The judgment was on a suit by some individuals, who claimed to be lawyers, and who argued that Executive Order 6 violate their rights to own property and denied fair hearing to owners of any property against which the order is executed.
On whether the President validly issued Executive Order 6, the judge said the President can issue Executive Orders under Section 5 of the Constitution in so far as the order relates to routine administrative matters and internal operations of other agencies, policies and programmes of the Executive and as long as it does not encroach into the powers of the Legislature or the Judiciary as delineated under the constitution.
She added: “Moreover, under Section 315(2) of the Constitution, the President and other appropriate authorities may, at any time, by an order, make such modifications in the text of any existing law, as they consider necessary or expedient to bring the law in conformity with the provision of the Constitution. Such order may be brought in the form of Executive Order.
“Under Section 315(2), the President is granted the discretion to first ascertain that such law that were made prior to the 1999 Constitution is inconsistent with the 1999 Constitution.
“Thereafter, he could exercise his discretion to bring it in conformity with the Constitution. This is the presidential authority which can be exercised in an Executive Order,” the judge said.
On the plaintiffs’ contention that Executive Order 6 violated citizens’ right to own property, among others, Justice Chukwu said the power exercised by the President in issuing the Executive Order “is not unconstitutional”.
The judge, however, noted that some aspect of the letters of the order appear to give the Attorney General the discretion to choose when to seek appropriate orders of court in carrying out his functions under the order.
She held that to exercise his power of seizing any suspected property, the Attorney General must establish compelling and reasonable suspicion that the property is linked to corruption or relevant offences.
The judge said: “It is pertinent that the honourable Attorney General of the Federation, as the overseer of the activities of all the law enforcement authorities listed in the 2nd Schedule to the Executive Order, should ensure due process and uniformity of purpose.
“It is the further opinion of this court that the honourable Attorney General of the Federation must first obtain an order of court in all circumstances before blocking or freezing or confiscating such funds or assets pending the conclusion of an investigation or legal action.
“An application may be made ex-parte and if the court is satisfied with the averment and information contained in the application, the order may be granted.
“It is, however, recommended that an order of court in that regard include a period of investigation or subsequent date. Where the court is of the opinion that the party to be affected by the order should be put on notice, the court should make that determination,” Justice Ojukwu said.
This, the judge noted, is intended to afford the party to be affected by the order the right to fair hearing.
She said Executive Order 6 did not violate citizens’ right under Section 43 of the Constitution, to own movable property in any part of the country.
She said the taken over of the assets, under the Executive Order 6 must be temporary until the pending cases are determined.
The judge noted that the temporary seizure, which the Executive Order provides, has in no way abrogated the right of any person to seek redress in court.
She noted that Section 3 of the Executive Order 6 allows any aggrieved person to challenge the seizure of his/her property in court.
Earlier, the court held that the plaintiffs have the locus standi (the right to bring the suit) because the execution of the Executive Order is not limited to those listed in the Order.