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Tag: Executive Order 6

  • SAN seeks equal application as lawyer backs Executive Order 6

    A Senior Advocate of Nigeria (SAN) Mr. Jibrin Okutepa (SAN) has welcomed the Executive Order 06 issued by President Muhammadu Buhari.

    He urged law enforcement agencies to ensure its equal application without fear, favour or ill-will.

    A former Nigerian Bar Association (NBA) Legal Adviser Mr. Victor C. Nwaugo also backed Executive Order 6.

    Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN), had said the essence of the Executive Order 6 was to ensure that assets connected to persons under investigation or trial were not dissipated.

    Okutepa said Nigeria was not the only country where that kind of executive order was being issued.

    He recalled that in the United Kingdom, there is the Unexplained Wealth Order, which is applied to those whose assets appear to be more than their legitimate income.

    Okutepa said: “I think the essence of these orders is to ensure that corruption is dealt a fatal blow in our land. I think the greatest enemies of Nigeria are Nigerians not the Peoples Democratic Party (PDP) or All Progressives Congress (APC).

    “The primitive acquisitions of material wealth in Nigeria and the unbridled manner it is done and being done should worry any right thinking person. The primaries of political parties have come and gone but we all saw what aspirants went through.

    “We should be worried that people buy their way to power. The rate of corruption and corrupt influences in Nigeria require extraordinary measures to deal with.

    “Those talking about human rights of those who have sentenced us to economic death sentence should appreciate that when those people were killing us vide corruption, they did not think of our own human rights to good road, health care and other social amenities.

    “Nigerians must see that corruption is the greatest business enterprise in Nigeria. We all hate it but love its practice. For me any measure that will bring corruption to an end is good for Nigeria.

    “Corruption is a heavyweight wrestler. It cannot be fought with kids’ glove. We need necessary process to fight it and I believe the Orders of government are necessary instruments to fight it.

    “As Nigerians, we should insist on even application to all and sundry without fear or favour affection or ill-will. There must not be selective applications.”

    Nwaugo said the order was merely a presidential policy directive issued towards curbing corruption.

    “It should be borne in mind that, in course of the campaign for the election of Muhammadu Buhari as the President of Nigeria, he made fight against corruption one of the cardinal principles of his administration, which Nigerians overwhelmingly endorsed by voting him into power.

    “That the 1999 constitution guarantees freedom of movement and fair trial of a Nigerian citizen does not guarantee absolute freedom or innocence of every Nigerian.

    “The constitution qualifies such freedom and fair trial under Sections 35 (1) (c) and 36 (5) of the constitution.

    “Presumption of innocence does not qualify as absolute innocence hence once an accused is under investigation, his right to freely move may be temporarily hampered within the realm of the security agency concerned or even before the court if charged.

    “In fact, once a person is standing trial, his freedom of movement is temporarily hampered pending the trial and determination of his case as his right to movement will be subjected to the discretion of the court concerned,” Nwaugo said.

    The lawyer recalled that America had refused to allow journalists interview security agents who interrogated the perpetuators of bombing of twin pillars of America, as it was classified as a matter of security.

    “Extra ordinary situation requires extra-ordinary measure. In Nigeria, right before our very eyes few individuals have cornered by fraudulent means, the resources and  wealth that would have librated Nigeria from the shackles of poverty.

    “Contracts running into billions would be awarded for construction of roads, the roads would not be constructed, but the money released and shared by few while the majority will be made to suffer the effect of failure to construct such roads. Some lose their goods or lives for few wicked fraudsters to smile to the bank.

    “There is the argument that Order 6 of 2018 seeks to usurp the functions of the Judiciary particularly because some of the presumed persons to be affected by the Order are already standing trial before the court and therefore subject to the discretion of the court in determining whether they can travel out of Nigeria or not.

    “That argument cannot hold water in the face of the case of Barr. Ikenga Imo & Anor vs. President of Federal Republic of Nigeria & Anor, FHC/ABJ/CS/740/18where the court affirmed our position that Executive Order 6 of 2018 is not self executory but that concerned security agency shall seek the discretion of court in the temporary seizure or restriction of movement of the citizen concerned.

    “In other words, the security agency concerned in the ongoing cases before the court can only restrict the movement of any accused person or temporarily seize the suspected corruptly acquired property after obtaining an Order of court to that effect.

    “I have carefully perused the contents of Executive Order 6 of 2018, I have also compared same with the constitutional provisions guaranteeing fundamental right of Nigerians, I have also looked at Sections 5 and 15 (5) of the 1999 constitution which empowers the President of Federal Republic of Nigeria to exercise Executive Powers of the Federation and abolish all corrupt practices.

    “I have come to the immutable conclusion that Preservation of Assets Connected with Corruption and other Related Offences Order 2018 is a necessary instrument that will enable the relevant agencies wage war against corruption in Nigeria,” Nwaugo said.

     

     

  • Executive Order 6

    •Matters arising from the controversial policy

    The implementation of the Executive Order 6, issued by President Muhammadu Buhari, has generated a lot of controversies. A suit at the Federal High Court challenging its validity, instead of settling the dispute, ricocheted even more controversies. Last week, Justice Ijeoma Ojukwu of the Abuja Division of the court declared that the president has constitutional powers to issue Executive Orders, and consequent upon that judgment, the president ordered the restriction of the movement of 50 prominent Nigerians, among other measures.

    The judge held: “The President of the Federal Republic of Nigeria has powers under sections 5 and 315 of the 1999 Constitution of the Federal Republic of Nigeria to issue Executive Orders on routine administrative matters … in so far as it does not step on the toes of legislative and judicial powers under the constitution.” We agree with the judge that the president has powers to issue Executive Orders. What is under controversy is whether the Executive Order 6 and its implementation have contravened the limits of the President’s powers as provided in the 1999 constitution (as amended).

    While in the court of public opinion there is division as to the propriety of the executive order, parties in the suit have threatened to appeal the judgment. From the reports available, the court tried to couch its orders carefully so as not to give the Federal Government a free hand in determining the implementation of the executive order, restricting it from infringing on legislative and judicial powers. However, the Federal Government appears determined to interpret the judgment more expansively.

    In that report, the judge held: “It is the further opinion of this court that the honourable Attorney General of the Federation first obtains an order of the court in all circumstances before blocking or freezing or confiscating such funds or assets pending the conclusion of an investigation or legal action.” If the attorney general is under obligation to obtain an order of court, before taking steps in the circumstances listed above, on what basis has it directed security agencies to restrain the movement of the persons listed in the report without first obtaining a court order?

    Perhaps it is because the judge had couched her order to the attorney general to first obtain a court order in the circumstance, as an opinion that made the president to ignore it when he issued the controversial restriction on the 50 persons named in the executive order? We have no doubt that both the appellants and the general public are anxiously awaiting the outcome of the appeal on this.

    The judge also offered what has been regarded by the litigants as a gratuitous suggestion. Again, the public will want to know the opinion of the appellate court on when a court could make a suggestion, recommendation or opinion as part of judgment. In her ruling, the judge held: “It is, however, recommended that an order of the court in that regard includes a period of investigation or subsequent date.”

    One of such ruling is when the judge held: “It is the further opinion of this court that the honourable Attorney General of the Federation first obtains an order of the court….” Perhaps the court should have made an explicit binding order. The appellants may also wish to test whether the judge was gratuitous when she held: “What the President has demonstrated by the Executive Order in question is his willingness to ensure the prevention of the dissipation of assets and funds connected with the commission of the offence of corruption and other related offences, until the determination of any corruption-related matter against the person or firm.”  Nigerians anxiously await the outcome of the appeal.

  • Activists: Travel ban will deal fatal blow to corruption

    The issuance of Executive Order 6 and placing of 50 politically-exposed persons (PEPs) on travel ban will deal corruption a fatal blow, according to the Centre for Anti-Corruption and Open Leadership (CACOL) and a human rights activist Dele Igbinedion.

    While CACOL praised President Muhammadu Buhari for signing the Executive Order 6, Igbinedion said those who have no skeletons in their cupboards have nothing to worry about.

    CACOL, in a statement by its Executive Chairman, Mr. Debo Adeniran, said tackling corruption required drastic measures.

    “When we view the precarious situation corruption has thrown this nation and its people, we would better appreciate why drastic and precarious situation calls for a measure of drastic steps/ actions,” it said.

    The group faulted those criticizing the Federal Government for the order, saying that most democratic countries of the world have such provisions in their statute books.

    CACOL said pending when all the laws needed to fight corruption are enacted and institutions strengthened, the President should be encouraged to deploy his powers such as the Executive Order 6.

    “We commend the leadership of Muhammadu Buhari for taking advantage of such provisions and enjoin him to judiciously and expeditiously utilize same in a manner that is completely devoid of witch-hunting or any form of undue flagellations, while, constantly, holding our public office holders to account, irrespective of whose ox is gored,” CACOL said.

    Igbinedion said the President’s action was “courageous, commendable and salutary”.

    Read Also: ANAN Fellow advises accountants to shun corruption

    To him, the President has dealt a fatal blow to corruption, corrupt people, corrupt tendencies and corrupt enrichment from political office.

    “It has been suggested that the Order 06 is unconstitutional, restrictive of human liberty and ultimately illegal. But all that posturing and postulation has been wiped away, broken-hearted, by the recent decision of the Federal High Court in Abuja.

    “It is now accepted, subject to any contrary decision of a higher court, that the Presidential Executive Order 06 is valid, constitutional, legal and applaudable. It is also enforceable pronto, and enforce it, the President has ordered. Amen.

    “Some have also claimed that the Order is targeted at political opponents. But those traducers of the mindless position fail to explain how their argument stands up in the presence of apolitical persons and even members of the President’s political party, the All Progressives Congress (APC) on the list.

    “But whatever the argument for or against, the Presidential Executive Order does not and cannot affect ordinary, hardworking Nigerians. So, fear not, my friends. For too long have corrupt people and their corruption held Nigeria and Nigerians by the jugular. It is now uhuru!

    “Only corrupt former and present political office holders need to tremble in fear over Order 06. Anyone who is not corrupt should walk tall, happy and rejoice. Indeed, a Daniel is come to judgment,” Igbinedion said.

  • EO6: PDP charges CJN to protect judiciary from fascism

    The People’s Democratic Party (PDP) has called on the Chief Justice of Nigeria, Justice Walter Onnoghen, to protect the judiciary from what the party described as the unconstitutional and repressive fascist policies being foisted on the country by the President Muhammadu Buhari Presidency.

    The party noted that the admission by the Presidency, on Sunday, that the Executive Order 6, as well as the travel ban and trailing of citizens, were devised to directly interfere in judicial processes and stifle accused persons of resources, under the guise of speedy trial, has left no one in doubt that the nation is fast sliding into fascism.

    Read Also:APC to PDP: falsehood can’t stop your defeat in Akwa Ibom

    In a statement Monday by its spokesman, Kola Ologbondiyan, the PDP noted that the Presidency has initiated attack on the independence of the judiciary, using the instrument of blackmail and aspersion on its integrity and capacity to effectively and timeously dispense justice.

    The statement said, “In trying to use his Executive Order 6 to determine the process, procedures and progression of cases in court, the Buhari Presidency directly seeks to usurp, commandeer and appropriate the constitutional powers of the judiciary and then arm-twist the courts and use them as ‘slaughterhouses’ for opposition members and perceived political opponents.

    “We invite Nigerians to further note that the action of the Buhari Presidency is a direct attempt to suspend Sections 6 (6)(b), 36 (5), (6)(d) and 37 of the 1999 Constitution (as amended).

    “While Section 6 (6)(b) provides that judicial powers of the court shall ‘extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person’.

    “Section 36 (6) (d) provides that, “every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence”.

    The party also observed that Section 36 (5) provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty.

    It also cited Section 37 of the constitution, which stipulates that the privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communications is guaranteed and protected.

    “The travel ban, trailing of citizens and attempt to regulate the processes of the court is therefore an attempt to short-circuit the constitutional powers of the judiciary and foist a fascist regime where the Presidency becomes the investigator, prosecutor and the judge in the determination of trumped-up charges against innocent Nigerians.

    “The PDP rejects this attempt by this administration to return our country to pre-1984 military dictatorship where siege mentality and suppression of rights of citizens was the rule rather than the exception.

    “We therefore urge the Judiciary as the last hope of the common man, to immediately insulate itself from the evil machination of the All Progressives Congress (APC), which is now trying to turn the judiciary into an instrument of oppression against Nigerians”.

  • Much ado about Executive Order 6

    President Muhammadu Buhari has thrown everything into the fight against corruption. His latest weapon is the Executive Order 6, which empowers him to restrain owners of assets under investigation from tampering with them or using their proceeds to pervert justice. But the National Assembly is kicking against the Order, claiming it is reminiscent of Decree 2 of 1984. The President, it said, could not issue such an order without the input of the legislature and the judiciary. Lawyers agree with the lawmakers. ADEBISI ONANUGA reports.

    President Muhammadu Buhari may have ruffled the National Assembly’s feathers, with his Executive Order which is aimed at strengthening the war against corruption. The order is for “the Preservation of suspicious assets connected with corruption and other relevant Offences”, was signed under Section 5 of the 1999 Constitution (as amended), Section 5(1) (1) stated: Subject to the provisions of this constitution, the executive power of the feeratin shall  extends to the execution and maintenance of the Constitution, all laws made by the National Assembly, and to all matters with respect to the National Assembly, has for the time being, power to make laws. According to the President, he derived his power to issue the order from the above provision as well as Section 15(5) of the Constitution. His powers, he noted, were however, not limited to those provisions. Section 15(5) stipulates: The state shall abolish all corrupt practices and abuse of power.

    The Order seeks to restrain owners of assets being investigated from any further transaction on them and stops owners of such assets from further using the proceeds to pervert justice. The order also targets specific politically exposed persons, who are currently being tried in courts for corruption.

    Why Order 6?

    There are laws through which assets of corrupt persons and institutions some government agencies including the Economic and Financial Crimes Commission (EFCC) got forfeiture orders from the court against those suspected to have plundered the country.

    So, why Order 6?

    Buhari: corruption a national emergency

    In signing the order, Buhari noted ”a strong link” between corruption and peace and security of the country. He explained that corruption was an unusual and extraordinary threat to the well-being, national security, and economy of Nigeria.

    The President said he was mindful of “this serious challenge” before coming into government and that this was why his administration specifically promised to address the country’s challenges in the three areas of security, economy and corruption.

    He said in furtherance of the anti-corruption programme, he embarked on multi-sectoral reforms on anti-corruption, including the enforcement of Treasury Single Account (TSA), strict implementation of the Bank Verification Number (BVN) Policy, signing of the Open Government Partnership, while efforts were on towards building and developing anti-corruption institutions, among others. According to him, he had so far kept faith with the promise.

    The President said after three years in office, there was need for a review of the achievements of his administration against set goals, a re-appraisal of strategies in order to achieve outstanding objectives, admiting that there are more grounds to cover in the war against corruption.

    Buhari said: “It has thus become necessary to re-kit and re-tool our arsenal to be able to effectively tackle corruption’s perilous counter-attack against the Nigerian state.

    “Accordingly, the Federal Government of Nigeria has declared a national emergency to deal with that crisis. In this regard, the Federal Government of Nigeria in line with its anti-corruption strategy seeks to ensure that the end of justice is not defeated or compromised by persons involved in a case or complaint of corruption.

    “It is in consequence of this that I have decided to issue the Executive Order No. 6 of 2018 to inter alia: restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to preserve such assets from dissipation, and to deprive alleged criminals of the proceeds of their illicit activities, which can otherwise be employed to allure, pervert and/or intimidate the investigative and judicial processes or for acts of terrorism, financing of terrorism, kidnapping, sponsorship of ethnic or religious violence, economic sabotage and cases of economic and financial crimes, including acts contributing to the economic adversity of the Federal Republic of Nigeria  and against the overall interest of justice and the welfare of the Nigerian State.”

    To preserve Nigeria’s political and economic systems, the President sought the support of stakeholders and every Nigerian to give effect to  Executive Order 6, having ratified the African Union Convention on Preventing and Combating with 39 other African states at the just concluded African Anti-Corruption Year, which held in Nouakchott, Mauritania.

    The ‘controversial’ part

    But the most topical of the Executive Order 6 is Section 1(a) which empowers the President to freeze assets of individuals with corruption cases and those related to him or her pending the resolution of cases in court.

    Executive Order 6 empowers the President to take over assets of suspected corrupt persons even when the defendant is not on trial, or when he/she is on the run or when the defendant has passed on.

    For instance, Section 1 (b) states that a government official or a person acting for and on behalf of such an official, directly or indirectly, engages in corrupt practices such as misappropriation of state assets for personal gain, receives any form of bribe or engages in corrupt practices related to the performance of his/her duties or the award or execution of government contract among others, shall forthwith be subjected to the disciplinary procedure in accordance with the Public Service Rules and investigation by the Code of Conduct Bureau.

    Section 5 (a) defines “asset’’ to include all properties, including funds, liquid assets (bank balances), receivables, stocks and bonds held in portfolios, insurance policies, shares in listed or unlisted companies, and all manner of fixed assets and all such assets held directly or indirectly through corporate entities, trust structures and intermediaries;

    (b) The term “corruption or corrupt practices’’ means as may be defined under any enactment: (i) any corrupt activity involving matters of corruption generally economic sabotage, human trafficking, drug trafficking and terrorism involving funds or assets in the sum or value in excess of fifty million Naira (N50,000,000) or its equivalent in foreign currency; and (ii) any misappropriation of government asset, corruption related to government contracts or bribery; or (iii) the transfer or the facilitation of the transfer of the proceeds of corruption among others.

    Also of note is the first schedule to the Order, which listed 155 specific cases pending in court and persons to whom it applies.

    Like Order 6, like Decree 2 of 1984?

    Unlike other laws, which the country has in place to fight corruption, reactions to Executive Order 6 have been mixed grill.

    Last Wednesday, the National Assembly rejected the Executive Order 6.  According to the lawmakers, the President cannot approbate and reprobate unilaterally without the inputs of the Legislature and the Judiciary, which make up the pillars of democracy.

    They asked the President to suspend  the implementation of the Executive Order 6. To them, the Order is similar to Decree 2 of 1984, which could be used to witch-hunt, traumatise, harass and victimise perceived political opponents.

    While, the House of Representatives constituted an ad-hoc committee with a four-week mandate to investigate all the executive orders signed so far by the President, including subsidiary legislations, the Senate summoned the Minister of Justice and Attorney-General of the Federation (AGF), Abubakar Malami, to explain the constitutional basis for the order.

    The House equally directed Malami and the Nigerian 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. He was also summoned to appear before the House.

    This followed the adoption of a motion, sponsored by Nicholas Ossai and 25 others on “Urgent Need to Investigate the Constitutional Compliance of All Subsidiary Legislation and Executive Orders by the Executive Arm of Government”.

    The motion, which generated a heated debate, led to a walk out by some All Progressives Congress (APC) lawmakers in protest against the decision.

    Ossai had argued that the Executive Order was an attempt to usurp the powers of the legislature. He found support in Bode Ayorinde, a member of the Reformed APC, who said the action of the President was an aberration.

    “Power corrupts and absolute power corrupts absolutely. The Section 4 has given the parliament the power to make law. A situation where the executive without combining other arms of government by way of executive order, we must rise against it, otherwise, there is no democracy. It should not be allowed,” Ayorinde argued.

    Describing the motion as “hasty and premature,” some lawmaker said the only option before the House was to approach the Supreme Court on the issue.

    But Mojeed Alabi, who rose in opposition to the motion said the President did no wrong and that the question of the legality or otherwise of the Executive Order 6 did not arise, noting that there were precedents. ‘Poor attempt at power grab’

    Former Chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu, in a national daily, described the Executive Order 6 as “a poor attempt at a power grab or an untheorised act of constitutional vandalism in defiance of the separation of powers in the 1999 Constitution. It is not worth the paper on which it is written”.

    The Church of Nigeria, Diocese of Enugu (Anglican Communion) last Friday expressed its displeasure over the Order. The church advised that it should not be used against perceived enemies or opposition.

    ‘Order 6 doesn’t affect human rights’

    But some civil society organisations see Order 6 in a different light. Project Manager, Strengthening Citizens Resistance Against Prevalence of Corruption (SCRAP-C) and Action Aid Nigeria (AAN) on Thursday commended President Buhari for signing the Executive Order 6 to check corruption, which it said would bolster the socio-economic development of the country.

    SCRAP-C President, Mr Newton Otsemaye, said corruption had hindered efforts of both the government and private sector to drive economic growth, retarded development, aggravated inequality and poverty, among the citizens.

    “Those against the Executive Order should know that it does not affect citizens’ human right, but improve the wellbeing of the citizens and the economy that had hitherto been affected by corrupt practices,” he said.

    According to him, forfeiture or confiscation of proceeds of crime is an anti-corruption tool, in line with international best practice, recommended by the United Nations Convention against Corruption (UNCAC), which Nigeria is a signatory. He said Non-Conviction Based Asset Forfeiture was a recommendation of the UNCAC, which provided a legal framework for fighting corruption and asset recovery.

    He noted that the Executive Order, if properly implemented, would boost Nigeria’s image globally, reduce inefficiency and misappropriation of funds and lead to more development.

    Otsemaye argued that Order 6 would not allow people accused of stolen wealth to use the proceeds to fight back the government. According to him, there is every possibility for  a suspected person to get information that his asset is about to be seized or being forfeited, to sell off the assets quickly, and this dissipates stolen assets.  He added: “If the government confiscates the asset, it does not necessarily belong to the government. However, the accused can go to court and prove that the asset genuinely belongs to him. If he can convince the court on how he legitimately acquired the assets, then it will be released to him.”

    Otsemaye said there should be a collective action and behavioural change against corruption, and that the fight should not be left to government alone, as corruption affects all citizens.

    Did President err with Order 6?

    Analysts are, however, worried about the new face off between the executive and the legislative, given the intention of Order 6. Some reasoned that legislature’s position on the matter was self-serving as some of them are under investigation for corruption. Some questioned the rationale for questioning Order 6 and alleging usurpation of their function as there had been five orders earlier issued by the executive, which were not opposed by the legislature. While some argued that the new order usurped the power of the judiciary to make such pronouncements only after finding a corruption suspect guilty of the offence.

    Did President Buhari err in issuing the Executive Order 6? Did he usurp the powers of the legislature and the judiciary as claimed by them? And what is the legality or otherwise of the Executive  Order 6?

    The Order is unnecessary, say lawyers

    Constitutional lawyers have described the Executive Order 6 as unnecessary and an usurpation of legislative powers. To them, the President does not need law to successfully fight corruption. The order, they argued should be withdrawn.

    The lawyers include former President, Nigerian Bar Association of Nigeria (NBA), Dr Olisa Agbakoba (SAN), Lagos lawyer and activist, Femi Falana (SAN) and social critic and law lecturer, Faculty of Law, University of Lagos (UNILAG) Akoka, Wahab Shittu.

    According to Dr Agbakoba, Order 6 is issued pursuant to powers granted by Section 5 of the Constitution. He said: “Under this provision, the President can make orders “and so, in answer to the question whether the President can make executive orders, the answer is yes. But the real issue here, is what happens when the President exceeds the powers given under Section 5 of the Constitution? The answer is that the executive order will be null and void.

    “So, the question is whether the Executive Order 6 exceeds the powers conferred by Section 5 of the Constitution?

    “I reviewed the executive order and my first comment is that the Order was unnecessary as it simply repeats laws, rules and regulations relating to corruption.There is really nothing new and all that is required is to implement existing laws rather than make executive orders.

    “The second point is that the Order is a naked usurpation of the legislative and judicial function as it purports to assign to the executive powers to seize corrupt assets and this is clearly the function of the Judiciary and legislative organ, in this case, the National Assembly.

    “In summary Executive Order 6 exceeds the power of the President conferred by Section 5 of the Constitution.”

    Falana, who spoke at a workshop on Assets Forfeiture organised by the Presidential Advisory Committee on Corruption, PACAC in Abuja on Wednesday, asked the executive to withdraw the Executive Order 6. He contended that the executive order violates constitutional right to own property.

    Shittu described the “Executive Order 6 as a surplusage”. He noted that there are actually existing provisions under the EFCC, lCPC, Advance Fee Fraud Acts, providing for interim and final forfeiture of assets when a suspect is reasonably suspected of having committed an offence.

    He noted that these provisions can be invoked to initiate non conviction based forfeiture proceedings even when the defendant’s guilt  has not been established.

    He also said the provisions apply even when the defendant is not on trial, or when he/she is on the run or when the defendant has passed on. The state in such circumstances can proceed against the assets as opposed to the defendant in forfeiture proceedings.

    “With these provisions in place, including international instruments reinforcing  confiscation of assets, Executive Order 6 in the circumstances is not only surplusage, unnecessary, but will amount to encroachment of the statutory powers of Anti graft agencies vested with forfeiture responsibilities,” Shittu said.

    He argued that the other challenge of the order will be its seeming conflict with constitutional prescription of presumption of innocence guaranteed to all suspects standing criminal trials or accused of any offence.

    According to him, “there are no such fears about criminal forfeiture given that such presumption of innocence by best practices standards around the world does not apply to non-conviction based forfeiture proceedings”.

    “The rationale being that such proceedings are actions in rem targeted at property or assets, the subject matter of proceeds of crime and not the person. ln the case of no conviction based forfeiture proceedings,the subject of trial is the property or assets, the proceeds of crime and not the person who  owned the property. As a result, presumption of innocence does not apply. Whereas in the case of Executive Order 6, the element under investigation is the person and assets confiscated in exercise of powers thereof is in consequence of investigation of the defendant.

    “Consequently the possibility of potential violation of presumption of innocence entrenched in the Constitution is real indeed. The other compelling argument is the seeming encroachment of legislative powers since Executive Order 6 touches on corruption for which the National Assembly had legislated upon extensively as shown above.

    “The President may have encroached on legislative powers by Executive powers 6 in a manner which is derogatory of separation of powers.

    “ln my view Executive Order 6 is unnecessary, given the fact that there are sufficient constitutional and statutory provisions to cover the subject,” Shittu said.