In the report, Dare Odufowokan, Assistant Editor, examines the raging debate over the Presidential Executive Order Number 6, signed last week by President Muhammadu Buhari. Both chambers of the National Assembly have at chaotic plenary objected the Order.
SINCE emerging as President in 2015, President Muhammadu Buhari has left nobody in doubt of his desire to clean the nation’s Aegean’s stable by confronting the menace of corruption headlong. While his efforts so far have been acknowledged by some within and outside the shores of the country, not a few people are insisting that nothing much has changed.
Perhaps, determined to see to it that something more changes, Buhari last week Thursday in Abuja, signed the new Executive Order No. 6 on preservation of assets connected with corruption. The President holds the view that after three years in office it was another good time to further review the achievements of the administration and set goals in a key policy area, the anti-corruption war.
He posited that there is urgent need “to re-kit and re-tool our arsenal to be able to effectively tackle corruption’s perilous counter-attack against the Nigerian State.” As a result, the Federal Government had “declared a national emergency to deal with that crisis.”
President Buhari came to power in 2015 vowing to fight corruption which had been undermining the country’s economy, politics, governance and entire society.
Insisting that corruption is one of the country’s major challenges, the President appealed that everything possible must be done to address the menace that had obstructed the country’s drive toward meaningful development for many decades. In his opinion, the new Executive Order is another document meant to help Nigeria kill corruption before the latter kills the country.
Not only the President expected every Nigerians to rejoice at the new order, many of his aides and associates, as well as a good number of pro-democracy activists, were optimistic that the Executive Order would be widely viewed as a welcome development. But events of the last few days may have proved them all wrong and possibly force them to take another look at now controversial PEO No 6, as it is called.
While many Nigerians are still coming to terms with the name and intentions of the new Executive Order, the National Assembly may have rejected the PEO No 6 after debating it at the upper and lower chambers during the week as they are now urging the President to suspend its implementation, noting that it is similar to Decree 2 of 1984.
While the House of Representatives, after a rancorous and chaotic debate of the issue, eventually resolved to constitute an ad hoc committee to investigate all the Executive Orders signed and other subsidiary legislations, the Senate simply asked the Minister of Justice and Attorney-General of the Federation (AGF), Abubakar Malami, to appear before it to explain the constitutional basis for the Order.
The House gave its Ad-hoc Committee four weeks to complete its assignment. It 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 on “Urgent Need to Investigate the Constitutional Compliance of All Subsidiary Legislation and Executive Orders by the Executive Arm of Government,” sponsored by Nicholas Ossai and 25 others, under matters of urgent public importance. However, immediately the motion, which generated a heated debate, with lawmakers shouting at one another, was adopted, some All Progressives Congress (APC) lawmakers staged a walkout to protest the decision.
Speaking against the motion, Mojeed Alabi (APC-Osun), who argued that Buhari had earlier passed similar Executive Orders and the question of legality of Executive Order 006 need not arise. While noting that the motion was ‘hasty and premature’, the Osun lawmaker urged the House to approach the Supreme Court for interpretation of the Executive Order with a view to clarify the ambiguity.
What’s in the Order?
PEO No. 6 of 2018 comprises a preamble, seven sections, two schedules and five essential features. It opens with an acknowledgement that corruption constitutes an unusual and extraordinary threat to the well-being, national security and stability of the country’s political and economic systems. Specifically, without prejudice to any laws or existing suits, the Order seek to protect from dissipation, the assets of any Nigerian citizen within the territory of the Federal Republic of Nigeria, known to be a current or former government official or a politically exposed person, who is or has been complicit in or has engaged in corrupt practices.
The first schedule to the Order has a list of specific cases and persons to whom it applies. Some pending court cases listed are that of former Inspector General of Police, Sunday Ehindero; ex-Abia State Governor, Orji Uzor Kalu; ex-Adamawa State Governor, Murtala Nyako; ex-Benue State Governor, Gabriel Suswam; ex-Zamfara State Governor, Sani Yerima and ex-Katsina State Governor, Ibrahim Shema.
Others are ex-Sokoto State Governor, Attahiru Bafarawa; ex-Jigawa States Governors, Saminu Turaki and Sule Lamido; ex-Niger State Governor, Babangida Aliyu; ex-Oyo State Governors, Rasheed Ladoja and Adebayo Alao-Akala; ex-Ogun State Governor, Gbenga Daniel; ex-Enugu State Governor, Chimaroke Nnamani as well as ex-Kebbi State Governor, Usman Dakingari.
Also listed in the first schedule of the new presidential Executive Order are cases involving some dead people such as former Nassarawa State Governor, Aliyu Akwe Doma and the recently deceased former Chief Judge of Enugu State, Innocent Umezulike, among others. The case involving the former National Security Adviser, Sambo Dasuki, also made the list.
The Order confers on the Attorney General of the Federation, the power to co-ordinate its implementation. Consequently, enforcement agencies named in the Order are required to communicate the outcomes of their investigations to the Attorney-General for him to immediately commence or direct the commencement of appropriate process (es) either administratively or judicially as the case may be.
Buhari’s controversial Executive Order also extends the scope of corruption to cover other relevant offences, including “terrorism, financing of terrorism, kidnapping, sponsorship of ethnic or religious violence, economic sabotage, cases of economic and financial crimes”, and all acts contributing to the economic adversity of the Federal Republic of Nigeria.
The arguments
Expectedly, the opposition of the National Assembly to the Order has generated mixed reactions among Nigerians. The issue is now one of the most debated topics across the country with each side of the two divides coming up with reasons to justify their stand. Reacting to the Order via his Twitter handle on Monday morning, the senator representing Kaduna Central Senatorial District in the National Assembly, Sen. Shehu Sani, attacked the Executive Order, saying for it to be acceptable, it must conform to the laws of the country.
He argued that if not checked, there is a possibility for such Orders to become an autocratic tool. The outspoken legislator and human rights activist said, “Executive Order is an instrument that should conform to the law, comply with the law and concur with the law or else it becomes an autocratic and ruthless device for the inauguration of savagery, undermining democratic values, circumventing the rule of law and creating a Gestapo state.”
Former chairman of the National Human Rights Commission, Prof. Chidi Odinkalu, in his critique of the new Executive Order, argued that there are “those things in it which are needless or are manifestly outside the powers of the President. At best, it’s an own goal. At worst, it’s an awful advertisement of presidential hubris and overreach.”
He added, “When he ran to be Nigeria’s president for the fourth time in 2014, Muhammadu Buhari pleaded that he was a converted democrat. Since Nigerians granted him his wish in 2015, he appears to have found it difficult either to show off the new life of a converted democrat or to shake off his old habits as a humourless dictator. In his Presidential Executive Order (PEO), No. 6 of 2018, President Buhari buries any illusions as to his preference.
“This is a rather pompous and prolix way of saying that corruption threatens national security. This point is both self-evident and well acknowledged in policy and scientific literature. In policy terms, such re-statement by a president is of little or no value. The best that can be said of this is that in linking corruption to national security in the way that the preamble to PEO No. 6 does, President Buhari arguably contributes to Nigeria’s national security doctrine,” Odinkalu argued.
However, Chairman, Presidential Advisory Committee on Anti-Corruption, Prof Itse Sagay, has faulted those calling the new Order unconstitutional, saying the Order is in line with Section 5 of the Constitution. He urged Nigerians to dismiss the complaints of the National Assembly and other critics of the new Order which he said is in the interest of the country.
“This conveniently falls within the president’s executive powers under Section 5 of the Constitution. The Order gives the president the power to freeze any asset of anyone who is being tried or being interrogated or suspected of corruption or any fund, which is illicitly acquired pending the decision of the High Court or pending the inability of the person to establish ownership. In other words, he doesn’t actually seize them permanently; it simply creates a temporary seizure pending the final outcome of the judicial procedures.
“Very many negative things can be done with such illegal and illicit assets available to people who are suspected of frauds. They can use them to intimidate or influence prosecution. President Buhari has just added additional ammunition in the fight against corruption, having concluded that the weapons we have now need to be fortified. We should all support him in this.
“It is not a blanket Order on all assets as it only applies to assets that are suspected to have been illicitly or fraudulently acquired. People with clean hands will not be afraid of it. But those who have illegally accumulated state assets for themselves will be afraid of this directive. The order is to make sure that the assets are not reduced in value while prosecution is going on,” he explained.
But the Peoples Democratic Party (PDP) condemned the executive order as illegal, unconstitutional, reprehensible and a dangerous step towards a descent to fascism. The opposition party accused the President of being undemocratic, saying Buhari signed the Executive Order “in total disregard to the provisions of 1999 constitution.”
In a statement by its National Publicity Secretary, Kola Ologbondiyan, the party noted that the Constitution did not, under any section, confer such fascist powers on the President under our democracy and there could be no legitimate latitude of interpretation placed on sections 5 and 15 (5) of the 1999 Constitution cited as justifications for this draconian Executive Order, that can excuse it.
“Therefore, President Buhari’s unilateral Executive Order is a travesty of justice and rule of law, as it vehemently seeks to hijack and usurp the powers of both the legislature and the courts and vest it on himself so that he can use same at will, as a political instrument, to haunt, traumatise, harass and victimise perceived political opponents.
“In other words, Mr. President wants to change our democratic governance to a military regime, in line with his lamentation, two days ago, that the fight against corruption will be better under a military regime than under a democracy. It is instructive to emphasise that the PDP is not in any way opposed to the fight against corruption. Rather, the party holds that the imposition of this Executive Order, which is radically at variance with the provisions of the constitution, is totally unacceptable,” the party said.
Garba Shehu, the Senior Special Assistant to the President on media and publicity, disagrees with the PDP and others criticizing the President for signing the Order. According to him, “corruption has become a big problem because investigation, prosecution and trial in courts are made harder by persons accused of crimes relating to it. They are using the enormous resources in their possession to thwart the system. The President’s view is that, it is only a clean Nigeria that can attract foreign investment, free money for more of the capital projects the administration is executing and creating jobs for our teeming population of young men and women.”
He added, “The President says in the interest of justice and the welfare of the Nigerian state, persons accused of crimes relating to corruption must be prevented from utilizing the proceeds and dissipating such assets suspected to be proceeds of corruption (or associated with corruption) pending final determination of any investigation or legal actions related to such assets or owners thereof.
“In signing the new Executive Order, he said: “I’m bound to restrict dealings in suspicious assets…to preserve same in accordance with the rule of law and with guarantee and safeguard of fundamental human rights.” A person who feels that his rights are infringed is free to go to a high court. To understand the threat posed to our democracy and economy by unchecked access to stolen or illicit funds, the President cited the large volume of cash government is fighting to retrieve through the legal system.
“The purpose of the Executive Order is not to forfeit people’s properties but rather temporarily deny access which can be used to corrupt or interfere with the investigative and judicial processes. Equally, it is not intended to, and cannot take over the powers and functions of statutory agencies with prosecutorial powers or create new ones. Rather, this is designed to activate existing provisions of the law on freezing of assets and to establish a system of coordination under the office of the Attorney-General, who has constitutional powers over all prosecutions.
“Henceforth, it will be a criminal offence to violate the Executive Order. Prosecution authorities will, in all future prosecutions, file application to freeze the assets implicated before, or alongside the charge information sheet. For cases that are on-going, such application shall be filed within seven days of this Executive Order. As provided by the law and the constitution, the President is empowered to “abolish all corrupt practices and abuse of power”. It is in his determination to fully execute this function that he declared a national emergency to deal with the threat posed by corruption,” Shehu said.
History of Executive Orders
The controversial PEO No 6 is not the first Executive Order a Nigerian leader would be signing going by available records. President Muhammadu Buhari in February 2018, had signed Executive Order 5 to improve local content in public procurement with science, engineering and technology components. The Executive Order was expected to promote the application of science, technology and innovation towards achieving the nation’s development goals across all sectors of the economy.
The President, pursuant to the authority vested in him by the Constitution, ordered that all ”procuring authorities shall give preference to Nigerian companies and firms in the award of contracts, in line with the Public Procurement Act 2007.” The Executive Order also prohibits the Ministry of Interior from giving visas to foreign workers whose skills are readily available in Nigeria.
It, however, notes that where expertise is lacking, procuring entities will give preference to foreign companies and firms with a demonstrable and verifiable plan for indigenous development, prior to the award of such contracts. It adds that ”consideration shall only be given to a foreign professional, where it is certified by the appropriate authority that such expertise is not available in Nigeria.”
Prior to the above, Executive Order No 4, meant to promote and support the Voluntary Assets and Income Declaration Scheme (VAIDS) of the federal government, was signed by Vice President Yemi Osibajo in July 2017, in his capacity as the Acting President when President Muhammadu was abroad on vacation at the time the need for it arose.
“Aware that the Federal and State Governments owe citizens the duty of providing security, welfare and development in all its parameters; and consequent upon the determination of the Federal and State Governments to provide an opportunity for taxpayers who are in default under all relevant Statutes to voluntarily declare their Assets and Income and pay taxes due on them and in return obtain some benefits.
“This Executive Order is valid only for the period in which the Scheme shall subsist, and relates to only persons who have voluntarily declared their assets and income within and outside Nigeria for the purpose of ascertaining their outstanding tax liability. Provided however that any rights and status properly acquired by any participating taxpayer pursuant to the Scheme shall vest to the benefit of the taxpayer to the extent provided for by law,” the Order reads in part.
Earlier in May 2017, while also acting as President, Osinbajo had signed three Executive Orders targeted to significantly change some of the ways government business and operations are conducted in the country. Specifically, he signed giving specific instructions on a number of policy issues.
The issues include the promotion of transparency and efficiency in the business environment designed to facilitate the ease of doing business in the country, timely submission of annual budgetary estimates by all statutory and non-statutory agencies, including companies owned by the Federal Government and support for local contents in public procurement by the Federal Government.
In July 2002, following protests by state governors over disparity in federal allocations, the then President, Chief Olusegun Obasanjo, signed an Executive Order which reduced the federal government’s shares from the Federation Account to 54.68 percent and nullified some special allocations which the federal government was enjoying before then.
A President’s dilemma
While many people agree with the assertion that corruption is a very serious threat to Nigeria’s development and the realisation of the human rights and fundamental freedoms of the majority of the population, especially in matters of economic, social and cultural rights, it is also widely believed that PEO No 6, as assented to by President Buhari, raises serious issues of constitutionalism, legality and due process of law.
To further complicate the issue, in Nigeria, the expression, Executive Order, is neither defined in the 1999 Constitution nor is it interpreted in any legislation of the National Assembly or House of Assembly of any State but, like in the USA, it is widely used. Consequently, while, as Sagay argued, it may be easy for Buhari to find a defence for his action in the constitution, it will in the same vein be difficult for him to prove that he has stayed strictly within the confines of that provision.
Jerry Agoda, pro-democracy activist and constitutional lawyer says as laudable and needed as the new executive order is at this crucial stage of the nation’s fight against corruption and corrupt people, President Buhari’s good motive may end up being sacrificed on the altar of “our age-long constitutional inadequacies.”
He insisted that majority of those opposing the bill, especially members of the National Assembly and opposition politicians, are doing so, not because they care about the country or the citizens, but because they are afraid of the consequences of the continued existence of such Executive Order on their illicit wealth and shady deals, expressed fear over the fate of the new Order.
“Our constitution is so faulty that many good things have been prevented from happening while many evil things have found ways of thriving, all by the provisions of our law books. This new development is another sad example of how we will continue to hurt ourselves as a people until we embrace total restructuring of the country. We need to review not just the constitution, but our entire polity.
“I am afraid that the Executive Order No 6, as laudable and needed as it is at this very crucial time of our fight against corruption and corrupt people, this good motive may end up being sacrificed on the altar of our age-long constitutional inadequacies. We are lucky to have President Buhari at the saddle at this time. He means well and he has been doing well. But with corruption vigorously fighting back, will our constitution allow this order to stay?
“My fear is derived from my understanding of Section1 (3) of the Constitution, which declares that if any other law is inconsistent with the provisions of the constitution, the constitution prevails and such law shall to the extent of its inconsistency be voided. The same constitution assigns legislative powers to the legislature while giving executive and judicial powers to the executive and judiciary respectively.
“With the National Assembly determined to stop President Buhari’s march against corruption so as to protect its members from the long arm of the law in the coming days, and the opposition eager to shout ‘persecution’ at the slightest opportunity in support of some of its thieving chieftains, will the judiciary be willing and able to bend over backward and save the Executive Order from those determined to end its life,” he asked, while explaining what many have described as President Buhari’s current dilemma.
The question is: where is the wind blowing; against or for corruption to continue to thrive. Why the hullaballoo over this Executive Order?