Re-Examining The Purport Of The Executive Order No. 6 Of 2018

Without doubt, the key objective of the Executive Order No. 6 of 2018 (“EO6” or the “Order”), reflects a major thrust of the administration of President Muhammadu Buhari. The Order seeks to preserve suspicious assets connected with corruption and other relevant offences, by restricting dealings in them in any way until the final determination by a court of competent jurisdiction of any corruption related matter against the owners of such assets.

The Order particularly focuses on Nigerian citizens who are either past or current government officials, politicians and politically exposed persons. However, unlike the five EOs issued before it, the EO6 has attracted criticisms from many quarters. While some claim the President seeks to arrogate judicial powers to himself in violation of the Constitution, others believe there is no need for the EO6 as there are sufficient statutes specifically covering the issues the Order intends to address.

Does the EO6 actually grant to the President power which is ultra vires that granted by the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”)? Is the Order a necessary complement to existing legislation on corruption? Is the making of the Order as a whole unconstitutional? Of what importance is the Order to the development of the Nigerian economy? This article seeks to re-examine the general purport of the EO6 and assess its usefulness to good governance, equity and the rule of law.  

SYNOPSIS OF THE ORDER

The EO6, which was signed by the President on July 5, 2018, contains six (6) sections and two (2) schedules. Essentially, the legal basis and moral justification for the Order are stated in the recital, where the President made proclamation and declared as follows:

“By the powers vested in me under Section 5 of the 1999 Constitution as amended which extends to the execution and maintenance of the Constitution, all Laws made by the National Assembly (including but not limited to Section 15(5) of the Constitution) to, abolish all corrupt practices and abuse of power, it is the duty of any responsible government to restrict dealings in suspicious assets subject to corruption related investigation or inquiries in order to preserve same in accordance with the rule of law and to  guarantee and safeguard the fundamental human rights”.

The gist of the EO6 is contained in sections 1 to 5 wherein provisions were made on the objectives, scope, framework for implementation and sanctions for contravention of the Order. Provisions were also made for means by which aggrieved persons may seek legal redress against actions taken pursuant to the Order while major terms used in the EO6 are also defined such as: asset; corruption or corrupt practices; enforcement authority; entity; other relevant offences; and person. Section 6 states the effective date of the EO6 (the date the Order was signed) and section 7 states its title as: “Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences, 2018”. The First and Second Schedules to the EO6 create respectively a list of pending cases (155 cases in total) to be immediately affected by the Order; and a list (subject to alteration from time to time by the Honourable Attorney General of the Federation “HAGF”) of agencies of the Federal Government of Nigeria (“FGN”) charged with the responsibility for implementing the Order.

Accordingly, without prejudice to any laws or existing suits as well as any rights arising therefrom, with the coming into effect of the Order:

  • All assets within the territory of Nigeria belonging to any Nigerian citizen who is responsible for, complicit in, or directly or indirectly engaged in corrupt practices and other relevant offences are to be protected from dissipation forthwith. Where the person linked to corrupt practices is not the owner of the connected assets, it suffices that he exercises control over, or is in possession of the assets. This extends also to any person under investigation for having materially assisted, sponsored or provided financial or technological support for the person linked with suspicious assets. Particular reference is made to suspicious assets linked to a current or former government official and politically exposed person or any person acting on behalf of the official;

  • The HAGF is to coordinate enforcement of the Order on behalf of the FGN by employing all available lawful or statutory means, including seeking appropriate orders of court where necessary. In preserving suspicious assets from dissipation, the FGN shall ensure that they are not withdrawn or transferred from the jurisdiction of Nigerian courts or dealt with in any way until the final determination of any associated case by a court of competent jurisdiction. Furthermore, the HAGF is empowered, subject to the powers granted under section 174 of the Constitution, to approach the court for an order blocking or freezing or confiscating any fund or asset within Nigeria, which he has reasonable cause to believe is connected with corruption, pending the conclusion of an investigation or legal action;

  • Enforcement Authorities (including but not limited to the 19 Agencies of the Government listed in the Second Schedule to the EO6) are directed to diligently and rigorously collaborate with the Federal Ministry of Justice in implementing the Order;      

  • Any person who contravenes the provisions of the Order by: (i) interfering with the free exercise of the authorities of the Office of the President (ii) destroying evidence (iii) corruptly inducing witnesses through cash/kind, and (iv) generally perverting the course of justice; shall be prosecuted in line with the provision of applicable extant laws; and  

  • In line with constitutional provisions, any person who alleges that his rights have been, are being or are likely to be contravened by any of the provisions of the EO6 may apply to a competent court in his jurisdiction for redress.  

Under the EO6, a “person” means a natural or juristic person. An “asset” means 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 manners of fixed assets held directly or indirectly through corporate entities, trust structures and intermediaries. An “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization.

Furthermore, the meaning of “corruption or corrupt practices’’ under the EO6 is that ascribed to it under any enactment, and includes (i) any corrupt activity generally involving 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; (ii) any misappropriation of government asset and corruption related to government contracts or bribery; or (iii) the transfer or the facilitation of the transfer of the proceeds of corruption. Similarly, “other relevant offences” is defined as any act, which may constitute an act of terrorism, financing of terrorism, kidnapping, sponsorship of ethnic or religious violence, economic sabotage, cases of economic and financial crimes, including acts contributing to the economic adversity of the Federal Republic of Nigeria as defined by relevant laws.

LEGAL ISSUES AROUND THE ORDER

Essentially, the legal issues arising from the EO6 have been whether or not it violates the provisions of the Constitution, particularly the fundamental right of citizens to own movable and immovable properties which shall not be subject to expropriation except in accordance with law, and the age-long principle of separation of powers among the executive, legislative and judicial arms of government.