SOME few weeks ago, Nigerians woke up to learn about a certain Executive Order No. 6 of 2018, on the preservation of suspicious assets connected with corruption and other relevant offences. By this Order, it is expected that persons affected thereby will be denied access to any sum of money that is suspected to be a proceed of crime. The president, in signing this order, placed heavy reliance upon Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
The general purport of Executive Order No 6 of 2018 is to place a general restriction upon dealings connected with suspicious assets subject to corruption related investigation or inquiries, in order to preserve same. It then listed in its schedule several cases already filed in court, against certain named individuals.
By simple logic, the target of the president in signing this Order is suspicious assets, not persons. Also, these suspicious assets are deemed to be subject of ongoing investigations or inquiries, meaning clearly that they are outside the purview of ongoing prosecution or existing court proceedings. Executive Order No.6 in its schedule would, however, proceed to list a number of pending cases which have already been filed in court with extant charge numbers, taking order away from suspicious assets. So, from the outset, the schedule is fighting against the order itself.
An asset or a person is under investigation when it or he has not been subject of any court proceedings, as once a charge or information has been filed before a court of law, it is outside the province of investigation or inquiry; what is left is immediate prosecution. The logic here is that the prosecution will not prefer a charge against any person unless investigation has been concluded and a prima facie case has been established, necessitating the need to file an information against the suspect, in court. So, you cannot arraign a person before a court and at the same be claiming to be investigating the same person; it’s a huge contradiction, both in law and in fact. Thus, the locus classicus case of Ogor v. Kolawole (1983) 1 NCR 342, is very instructive on this point. In that case, the applicants had applied for a declaration that the orders remanding them in custody were unconstitutional and applied for the quashing of the orders. The magistrate had, in a charge against the applicants, refused the applicant’s bail in order to afford the police more time to conduct their investigation without interference and remanded the applicants in custody. Ayorinde J, (as he then was), in quashing the said remand order, gave a most logic and sound dictum as follows: “The reason given by the first respondent suggests that he was under the impression that the police had not completed their investigation of the offences supposed to have been committed by the applicants before the latter were brought to court.” His Lordship further went on to hold that by virtue of section 18 of the Criminal Procedure Ordinance (which has been replicated as section 31 of the ACJA), “it may be said that a police officer is expected to release a suspect in a criminal complaint on bail where investigations into the complaint have not be completed.”
The High Court judge therefore, in relying on Section 32(4) of the 1979 Constitution of Nigeria (now section 35(4) of the 1999 Constitution) held that it will be wrong in law and unconstitutional to incarcerate or keep an accused in custody, pending the completion of investigations into the complaint against him… It should be assumed that criminal cases when taken to court are ripe for hearing, not for further investigation, and that they are not there on mere suspicion, which cannot be regarded as reasonable suspicion as required under Section 32 (1)(c) of the Constitution (now 35(1)(c) of the 1999 Constitution).
It is, therefore, manifestly clear, that the executive arm of government cannot reasonably rely upon Section 5 of the Constitution to distrain assets of citizens that are subject of criminal prosecution in a court of law. It is a contradiction of the absurd. The prosecution, either through the police, the EFCC, ICPC, Customs, NAPTIP, etc, is part and parcel of the executive arm of government. The powers to be exercised by these agencies on behalf of the executive over suspects and their assets is limited in law, to when they are still under investigation. And that is why Section 31(1) and (2) of ACJA has granted wide powers to the executive to deal with this. However, once a person has been arraigned before a court of law, he leaves the realm of suspicion or investigation by the executive.
Section 5 (1) (a) and (b) of the 1999 Constitution provides as follows:
“Subject to the provisions of this Constitution, the executive powers of the Federation –
- Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of Government of the Federation or officers in the public service of the Federation; and
- Shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly to all matters with respect to which the National Assembly has, for the time being, power to make laws.”
It is trite that the constitution is seen as a body of fundamental principles or established precedents according to which the state and all its agencies are acknowledged to be governed. It is a charter, social code, canon, body of laws, rules and regulations which guarantees inalienable fundamental rights to certain freedoms inherent in human beings. However, executive orders as apparently seen in the current administration seems to negate from these basic principles, tenets of law and governance, as enshrined and guaranteed under the 1999 Constitution.
In the whole gamut of Executive Order No 6, there is nowhere reference is made to any law or regulation that the executive seeks to maintain, through this order, save to seek to preserve assets subject of criminal prosecution before the court. Section 5 does not confer any power on the executive to maintain or preserve pending court cases.
Just in the same way that Section 5 of the Constitution vests executive powers in the president, so also has section 4 thereof vest upon the legislature, the power of law making. That power is deemed to have been exercised for the promulgation of the 1999 Constitution which, in its sections 35 and 41 respectively, has granted the right to personal liberty and freedom of movement, to all citizens. These sections can be altered, either by amending the Constitution, or through judicial intervention, by the court, but surely the executive arm of the realm cannot rely upon Executive Order No. 6 of 2018 as the basis of tinkering with constitutional provisions. The liberty of a citizen is as sacrosanct as the right to life, it shouldn’t be toyed with or threatened just by the fiat of the executive arm. Ditto the freedom of movement.
The same Constitution has also empowered the courts, in Section 6 thereof, with the power of adjudication, in respect of all disputes. So, if the executive, either through the regular police force or specialised agencies such as EFCC or ICPC, has raised certain allegations against a citizen through an information filed in court, it becomes a dispute, which has entered the realm of judicial powers, taking such dispute completely away from the executive.
In this regard, it will be a constitutional aberration for the executive to submit a dispute before the court through an information already filed and entered in the court, and at the same time seek to regulate, take over or monitor the assets of persons already charged to court as defendants. That surely is not the purport of Section 5 of the Constitution, as the same document cannot be read to be fighting itself, to give powers to the courts and then at the same time empower the executive to steal those powers, through Executive Orders.
The doctrine of separation of powers, therefore, means that the three arms of government must function independently and without interference from another arm, save in situations of checks and balances, for the ultimate good of the state and the citizens.
In Executive Order No 6 of 2018, the executive arm is combining the power of legislation along with the power of adjudication, leading to a situation of dictatorship, conflict of interest and totalitarianism. That should not and cannot happen in a constitutional democracy. So, in this regard, resort to examples in Britain and other jurisdictions are unhelpful to interpret the express provisions of our own unique Constitution.
Indeed, there are other extant legislations, such as the EFCC Act, which contain ample provisions, for the interim or permanent forfeiture of assets subject of criminal prosecution, as to totally make Executive Order No 6 of 2018, unnecessary.
Executive Order 6 becomes manifestly illegal, the moment it listed several criminal cases already filed and pending before various courts, in its First Schedule, altogether numbering about 155. The executive arm cannot be dragging the issue of jurisdiction with a court properly created by the constitution, as courts are always mindful to guard their jurisdiction, jealously. Consequently, the courts should find no difficulty in striking down Executive Order No 6.