By Paul Onyenweife

IT is a notorious fact that there is endemic corruption and crime in Nigeria. In foreign countries, Nigerians are regarded as corrupt people and treated as pariahs on the ground that they are Nigerians who hail from the most corrupt country in the world.

corruption

Over the years, successive governments have enacted special penal legislations designed to combat the high incidence of corruption and established institutions of enforcement. Today, the plague of corruption still ravages the country.  The trend all over the world is to prevent the accused person from retaining the proceeds of his crime. Determined to take stern measures to tame the cancerous monster, the Nigerian President recently made an Executive Order No. 6 which authorises law enforcement agents to seize properties suspected to be proceeds of corruption without recourse to the courts. Using the extant Constitution of Federal Republic of Nigeria and decided cases as a gauge, it’s significant to reflect on the constitutionality and human rights implications of the Executive Order No.6.

By virtue of Section 6 of the Constitution, judicial powers are vested in the courts. The court has the fundamental role of keeping the government faithful to goals of democracy. Put differently, the court has the sacred duty to translate into actuality the noble ideas expressed in the basic laws, give flesh and blood, in fact life to the abstract concept of human rights as articulated in the Constitution. Section 15(5) of Chapter II of the Constitution mandates the state to abolish all corrupt practices and abuse of power. On the need to employ civilised methods in crimes control, the court per Aderemi, JCA in Comptroller of Nigerian Prisons v. Adekenye (1999) 10 NWLR (pt.623) 400 opined:

I am not unmindful that at the time the Decree was promulgated, the Nigerian economy was badly traumatised as a result of extensive fraud and improprieties perpetrated by several bank officials. They mismanaged their banks. They ruined many businesses. Several customers of the bankers who could not bear the loss  caused them lost their lives as a result of shock induced by hypertension. It was indeed an unhappy time for many people. The economy was nearly ruined and has since not recovered.

It was there for a time for the lawmakers to take stern measures to curb these excesses. Having said that, it needs to be borne in mind that, when efforts are made to curb crime in society only civilised methods should be employed. Society ought not to be traumatised. A law that does not discriminate in the award of punishment between guilty and the innocent is a modern-day anachronism. No nation should tolerate it. And this is one of the reasons that informed the need for African Nations to come together for African Charter on Human rights.

The extant Nigerian Constitution abhors self-help. While section 1(1) of the Constitution of Federal Republic of Nigeria states that the constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria, section 1(3) of the Constitution states that if any law is inconsistent with the provisions of the Constitution, the constitution shall prevail and that other law to the extents of its inconsistency shall be void.

Section 36 of the Constitution codified the principles of fair hearing and presumption of innocence. It clearly states that whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within reasonable time by a court or tribunal. It provides that every person charged with criminal offence shall be informed promptly in the language he understands, the details of the nature of the offence and be presumed to be innocent until proven guilty. The law is settled that he who asserts must prove. In the Nigerian criminal justice system the state has the burden of proof and this burden does not shift.

Section 43 of the Constitution guarantees the right to own property while section 44 forbids compulsory acquisition of property. In Onyirioha v IGP (2009) 3 NWLR (pt.1128) 342 the court held that asking the accused to deposit the quarter of the amount he alleged to have stolen presupposes that the accused actually committed the offence. The court per Ogunwumiju, JCA held:

I am of the fervent view that onerous provisions in Section 18(1) of the Advance Fee Fraud and Related Offences Amendment Act is a violation affront to the provisions of sections S. 35(1), S.(36(5) and 6 of the 1999 Constitution and against Article 7 of the African Charter on Human and Peoples’ Right Enforcement Act, Cap.10 Laws of the Federation and it should be struck down. The Supreme Court confirmed this in Controller of Prisons v. Adekanye (1999) 10 NWLR (PT.623) PG 400. It offends all democratic sensibilities and is repugnant to the tenets of presumption of innocence.

In a democratic dispensation, one had heaved a sigh of relief that the draconian laws are over, dead and done with. The courts of the land shall not stand for their resurrection. Crimes must and can be fought with the aid of the courts in a civilised and avant garde manner in such a way that the court would not negate public policy but enhance it by pronouncements that cover the public good and do not submerge human rights. To submerge human rights on the altar of public policy would be counter productive and unhealthy for our democracy.

Under Nigerian jurisprudence, interlocutory injunctions may be granted to the police for preservation of proceeds of crime. However, in line with the tenets of rule of law and fair hearing, the police must apply to the court for the injunction. On the contrary, Executive Order No.6 seeks to impose punishment on its victim by way of forfeiture of property on basis of suspicion.

True enough, corruption has eaten deep into our system that this country is almost at a standstill. Transparency is lacking in every sector , such that corruption is about to assume a normal way of life which is dangerous for the existence of this country. However, Nigeria operates a constitutional democracy with powers constitutionally assigned to the three recognized arms of the government.

Why I lend my support to fight against corruption in Nigeria, it is submitted that Executive Order No. 6 negates the ancient doctrine of presumption of innocence enshrined in the Constitution as it casts the aura of criminality and guilt on its victims even before trial . It offends all democratic sensibilities and is repugnant to the tenets of presumption of innocence. Corruption must and can only be fought with the aid of the court and within the ambit of the rule of law.