It is trite that the power to issue executive orders is incidental to the powers vested in the President in a presidential democracy like ours. In the United States of America, the power is said to have been impliedly provided for in Article 2 of the US Constitution.
In Nigeria, the power to issue executive orders can be said to have been derived from Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended.
Meanwhile, it is obvious from the said Section 5 that while the powers of the President above are wide, same powers along with the incidental executive orders are subject to the specific dictates of the Constitution such as provisions on fundamental rights therein.
Accordingly, where the exercise of such executive powers conflicts with fundamental rights, it shall be null and void and of no effect. See Ojukwu v. Governor of Lagos State (1986).
According to President Buhari, the essence of the Executive Order No 6 of 2018 is “to restrict dealings in suspicious assets subject to investigation or inquiry bordering on corruption in order to prevent such assets from dissipation…”
The implication of this Order is that the moment a person is accused of corruption, rightly or wrongly, with cogent evidence or none, the assets of such person, tangible or intangible, can be seized without any court order. Similarly, the accused may not have the opportunity to approach the court to vacate the seizure until the investigation or trial is concluded even if it takes ages; neither would he be able to sell, lease, mortgage or otherwise raise earnings from the assets, even if the purpose is to raise money to hire lawyers to defend him at trial.
The Order is also capable of being easily used to cripple the opposition and critics by simply accusing them of corruption, freezing all their assets and means of livelihood, while subjecting them to indefinite criminal investigation or as long as the government remains in power.
Given the above inevitable implications of the Order, can the Order be said to be constitutional? Can it be said to be devoid of violating the fundamental rights jealously safeguarded by our sacrosanct Constitution? Freezing, seizing or otherwise dealing with the assets of an accused person by the government is indisputably a limitation of the accused full enjoyment of his fundamental rights, which include right to be presumed innocent until found guilty by a competent court of law, right to defend himself, personally or by a lawyer of his choice, right to adequate facilities to prepare his defence, right to fair hearing and right against his property being compulsorily taken possession of.
It is settled law that a limitation to a human right shall not be lawful, except it is necessary, proportional and is not capable of rendering the enjoyment of such right illusory or meaningless. See IGP v. ANPP & Ors (2007) 18 NWLR (Pt. 1066) 457 CA; Media Rights Agenda v. Nigeria (2000) AHRLR 200 (ACHPR 1998). By ‘necessary’ or ‘proportional’, the limitation must not only be appropriate to achieve the set aim, it must be the least intrusive of all possible options that might be used to achieve the set aim.
Sections 24-34 of the EFCC Act and provisions of other relevant statutes have already provided for a democratic procedure for freezing/ seizing corruption related assets with the aim of preserving them, which procedure gave an accused person the opportunity of fair hearing in the matter in compliance with Section 36 of the Constitution, particularly 36(2)(a).
The questions are: if there is a statute of the above nature, with relevant constitutional safeguards, why then, this Executive Order, which gave unlimited discretion/powers to executing authorities? An Order capable of causing injustices, hardships and negative implications as earlier identified above? If for instance, an accused person is, before and throughout his trial, subjected to the stated inhuman injustices and punishments, what meaning or value does his right to presumption of innocence have left?
Similarly, the above mentioned fundamental rights are not expressly subject to the general limitation clause of Section 45 of the Constitution, hence their limitation is restricted to those, if any, stated under the respective sections which provides for them. As a matter of fact, there is no limitation in Section 36 (and S.44) which expressly or impliedly allows the government to deny an accused, the means of procuring the services of good lawyers to prepare his defence, or his right to be heard when his asset is to be seized, or subject him, his family and dependents to indefinite hardship. Ours is a constitutional democracy, not constitutional totalitarianism; this is 21st century Nigeria, not 1983 Nigeria!
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