The Hub

July 19, 2018

Executive Order 6, A Decree misnamed?

Executive Order 6, A Decree misnamed?

President Muhammadu Buhari on Thursday signed an Executive Order to improve his administration’s fight against corruption.

By Josef Omorotionmwan

MANY see a lot of wisdom in the Benin adage that at the mention of the whiteman, the white ant also gets jittery.

This is one way of explaining the fact that although the Executive Orders regime of the President Muhammadu Buhari administration has been with us for over a year now and the administration has issued many Orders to the admiration of many Nigerians, the sixth in the series of Executive Order has suddenly turned sour, attracting knocks from every direction.

President Muhammadu Buhari 

Some think that this is largely due to the target audience of Executive Order 6 captioned Preservation of Suspicious Assets Connected with Corruption and Other Related Offences. Politicians would rather be caught writing their own testimonials than forfeit their assets to the waiting claws of President Buhari’s war against corruption.

From the very beginning, the short title of this Executive Order gives it away as a fresh legislation; a cheap shot at power-grab; and a deep incursion into the legislative domain.

Effort must be made to understand the Executive Order for what it is. BLACK’S LAW DICTIONARY defines an Executive Order as “An Order issued by or on behalf of the president usually intended to direct or instruct the actions of executive agencies or government officials or to set policies for the Executive Branch to follow”.

Executive Orders have the full force of law, based on the authority derived from statute or the Constitution itself. The ability to make such orders is also based on express or implied Acts of parliament that delegate to the President some degree of discretionary powers – delegated legislation.

In essence, the Executive Order is not a deviation from law; rather it is an extension of the existing law or the constitution, giving biting teeth to both. It is for quick decision and action. The Executive Order recognizes that it is not enough to make laws and put them to sleep. Rather, it ensures that no law goes to bed without accomplishing the purpose for which it was enacted.

Like legislative statutes and subsidiary Ordinances of government, the Executive Orders are subject to Judicial Review: They can be challenged either in part or in whole; and can be quashed if they lack support of the law or the Constitution.

It bears repeating that the Executive Orders cannot be used to create new powers, duties and rights; or to expand existing ones beyond the scope of mandates given by the legislature. Neither can they be used to encroach on the policy domains reserved for other branches of government. Executive Orders must be focused and limited in scope; and cannot be directed at solving all perceived problems of society.

When our legislators rush to the Chambers to reduce important issues to a shouting bout, we wonder if they are not really advertising their ignorance, even of the legislative process. For one thing, the Executive Order, like enactments of the National Assembly, once signed by the President, can only be challenged in Court; and no amount of shouting bouts can alter the situation. For another, the legislators have enormous powers in their hands. In the legislative arena, they are clearly the major players. If they seriously put on their thinking cap, in one short week, they can come up with superior measures that can put Executive Order 6 to death. From a distance, we see the Executive making deep incursions into the legislative domain because of the legislators’ laxity and inaction.

There is a very thin line between the best of intentions and tyranny; and even between humaneness and inhumanity. Quite often, these attributes dovetail into one another. President Buhari certainly means well with Decree 6 (oops, Executive Order 6!) But he was too ambitious.

And so ambitiously has Executive Order 6 righty reminded us that a man should not benefit from his iniquities. Therefore, a stolen asset under investigation must be removed from the alleged thief while the investigation lasts. They cannot be using the proceeds from the stolen assets to fight back or compromise on the war against corruption. The assets can be returned to them if in the process they prove that those assets were legitimately acquired.

However, no matter how elegantly we express the temporary forfeiture of a man’s asset, all we are saying here is that the man is guilty until he can prove himself innocent – in utter contravention of the Constitution and other laws of the land, which provide otherwise.

This is where Executive Order 6 walks justice on its head. Whereas the intendments here are quite laudable; and would have been good in a military Decree, our democracy abhors such.

Assured of its noble intentions, Executive Order 6 proceeds to read into the minds of Nigerians. For example, many have seen the asset declaration process as one of “Garbage in, garbage out” in which people can see only what you have declared. At inception, many would declare their assets. While in office, they would accumulate stupendous wealth, a bulk of which will not be declared at the exit point. That explains the phenomenon of the profileration of orphaned assets dotting the entire landscape of the country.

Executive Order 6 steps in to proclaim that there shall no longer be ownerless property in the land. Therefore, in this whistle-blowing era, government shall move in to confiscate these assets.

There is the temptation to concede that this is supported by the Code of Conduct and the laws of other anti-graft agencies. All the same, this is also pre-emptive and such must be left at the legislative arena for further restructuring.

Quite unlike its fore-runners, Executive Order 6 has not much to recommend it. So, it must go. It is too late in the day to expect the Executive to reverse itself. In the weeks ahead, it is expected that there will be an avalanche of litigations to put Executive Order 6 where it truly belongs.