FG calls it gold, others call it oppressive. Executive Order 6, Explained

Executive Order 6 has a problem with its medium, not its content
Posted on July 20, 2018, 4:17 pm

President Muhammadu Buhari‘s Executive Order 6 of 2018 titled ‘Preservation of assets connected with serious corruption and other relevant offences’ has been met with criticisms, with the opposition calling it dictatorial and unconstitutional, but the Presidency insists it is a magic wand to ward off corruption in Nigeria.

The EO6 was signed by President Buhari on July 5 in a bid to intensify the administration’s ongoing anti-corruption crusade, which the opposition Peoples Democratic Party (PDP) continuously calls a witch hunt.

The order restricts a person who is suspected to have been involved in corruption from certain rights to his property if such property is suspected to be gotten from corrupt practices.

The idea is to preserve the property or asset from being used and reduced in value before investigation and inquiries are completed. It is also aimed at preventing someone who may later be discovered to be a criminal from enjoying proceeds of his illicit activity within the time that investigation is being carried out. 

The thinking is also that these assets if left with the suspect, can be used to entice, sway and intimidate the investigation and even the judicial process.

Why the fuss over Executive order 6?

An Executive Order (EO) is a directive issued by the President with the force of law, but do not require approval from the Legislators nor can it be overturned by them, as only a sitting President may overturn an existing EO by issuing a counter EO, although laws could be made by the Legislators to make its implementation difficult, if not impossible.

In 2017, Vice President, Prof. Yemi Osinbajo, in an acting capacity during the President’s medical vacation, issued the first three EOs by this administration; centred on easing business, fast-tracking budget submissions & promoting Made in Nigeria products.

The EO6 gathered enemies partly because it entails temporary seizure of assets involved in corruption cases, with the Attorney General of the Federation charged with the coordination of its implementation. This, to many, may be used as a political pressure tool as the impression is that the decision on what to seize starts and stops with the Executive Arm of the Federal Government.

Other critics are calling it a “squalid attempt at power grab” from the National Assembly and duplication of functions since the Economic and Financial Crimes Commission (EFCC) and some other security agencies have similar mandate already.

“Its contents fall into two categories: those things in it which are not 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” columnist Chidi Anselm Odinkalu says.

Defending the constitutionality and the need for EO6, Minister of Information and Culture, Lai Muhammed said its effect would help in recovering over #595 billion from 155 high profile cases and argues that the Order works with the Court.

“The President has the power, under Section 5 of the 1999 Constitution as amended to abolish all corrupt practices and abuse of power. This 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. For those who claim that the Executive Order Number 6 is dictatorial, it is clear they have not even read it. Section 3 (i) of the Order states that any person who alleges that his rights have been violated, are being, or are likely to be contravened by any of the provision of this Executive Order, may apply to a competent Court in his jurisdiction for redress”.

Centre for Anti-Corruption and Open Leadership (CACOL) also commended the Presidency on the EO6 stating that “one cannot be engaged in arguments over who eats a carrot that belongs to the household whereas one person is already willfully and illegally holding and eating the same carrot”.

“This is why corruption suspects have become emboldened in their quest to perpetuate criminality. In Malaysia and several other Countries battling corruption, no Government allows a public official undergoing corruption investigation to keep assets or property above his legitimate income while the case is on-going.

“It is noteworthy that the President while signing the order pointed out that a whopping N595b was involved in some of the on-going high-profile corruption cases including assets that were illegally acquired by ex-Governors and Ministers. This is more than the Federal allocation to any individual state of the Federation or any of the Federal Ministries in the recently signed 2018 national budget.

“It is therefore very glaring, that one singular affliction that has been responsible for frustrating and inhibiting all efforts at remaking and retooling the national economy is unbridled Corruption, at all levels of governance in Nigeria”.

Similarities everywhere

Laws restricting dealing with suspected proceeds of corruption or crime exist around the world and even in Nigeria but they usually do not come in form of an Executive Order which includes lists of names the Order will immediately apply to.

Australia’s Crimes Act 1958 says in Section 195 that a person who deals with property if there are reasonable grounds to suspect that the property is proceeds of crime is guilty of a summary offence and liable to level 7 imprisonment (2 years maximum). 

A simple example of most Western laws is given in the case of a Manager who has been indicted for stealing from the company. Should the Police search his car and find huge amount of cash, it is within the right of the Police to hold the money until it is determined that they are not proceeds of his suspected stealing from the company.

In a model law developed by the United Nations Office on Drugs and Crime (UNODC) for use in countries whose fundamental legal systems are substantially based on the common law tradition, “indictment” which simply means a formal charge is said to be enough for assets to be “identified, traced, frozen, seized and eventually confiscated”.

The international standard for money laundry laws is to hold before conviction or otherwise. Kenya’s Proceeds of Crime and Anti-Laundering Act 2009 (POCAMLA 2009) was also Kenya’s effort in this regards. 

What appears to make that of Nigeria different would be that it is issued in an Executive Order which by its nature bypasses a National Assembly that is seen as increasingly drifting from the President with accusations of corruption often hanged on the head of the Senators and Rep members by supporters of the President and the ruling party which they happen to mostly belong.

Between an Executive Order and a Law

Statutory laws are passed by a majority in the National Assembly and signed by the President or two-thirds of both houses of NASS against the veto of the President.

On the other hand, Executive Orders are directives by the President which do not require a vote from NASS and can be shut down when it defies Statutory laws or the Constitution. There are three subsets under the Executive Order – Presidential Proclamation, Presidential Memoranda and Executive Order, the least binding is the Presidential Proclamation and the most is the Executive Order.

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