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81 J.L. Pol'y & Globalization 1 (2019)

handle is hein.journals/jawpglob81 and id is 1 raw text is: Journal of Law, Policy and Globalization www.Lste ISSN2224-3240 (Paper) ISSN2224-3259 (Online) DOI: 10.7176/JLPG Or Vol.81, 2019 ST The Legality of Executive Order No. 6, 2018 on Asset Recovery in Nigeria Oyelowo Oyewo Professor of Law, Head of Department of Public Law, Faculty of Law, University of Lagos, Nigeria Abstract The conceptual nature and usage of executive orders in the exercise of presidential or executive powers, especially with regard to Presidential Executive Order No. 6 of 2018, is discussed as a prelude to the consideration of the salient features of Executive Order 6 of 2018, and analysis of the constitutionality and legality of Order No. 6 of 2018, before finally, postulating on the possible impact of the Order on government's efforts aimed at asset-tracing and recovery from proceeds of crime. Keywords: executive order, corruption, anti-corruption, asset tracing and recovery, constitutionality and legality DOI: 10.7176/JLPG/81-01 1.0. Introduction Recently, the President of the Federal Republic of Nigeria, issued the Executive Order No. 6 of 2018, on preservation of proceeds of crime and asset recovery. Obviously, the Administration of President Muhammadu Buhari is not the first democratically-elected President to issue Executive Orders, as former Presidents, such as, Shehu Shagari and Olusegun Obasanjo issued such Orders. In 1980, then President Shagari issued an Executive Order to modify the Public Order Act (this was unsuccessfully challenged in court by then Governors of Ogun and Borno States).1 In 1999, then President Obasanjo issued Executive Orders to abolish the Petroleum Trust Fund (PTF) and to proclaim May 29 as Democracy Day.2 Interestingly, the preamble to the Executive Order 6 of 2018 offers glimpses into its raison d'6tre3 - an anticorruption instrument to be used to secure corruptly acquired public assets from being dubiously dissipated.' However, many have queried the necessity for, and legality of the Executive Order No. 6 of 2018, due to the existence of enormous powers of anti-corruption agencies vested in them by the enabling laws of the anti- corruption legal framework,5 such as Economic and Financial Crimes Commission (EFCC) Act, the Money Laundering Act (MLA), the Independent Corrupt Practices Commission (ICPC) Act, and Administration of Criminal Justice Act (ACJA), among other.6 Indeed, criticisms have trailed the Executive Order No. 6 of 2018, on several grounds, including: its violation of the doctrine of separation of powers, rule of law, and constitutionally guaranteed fundamental rights, both in substance and its application.7 Moreover, it has been argued that the fundamental rights provisions in Chapter IV of the Constitution in sections 33-44, and the African Charter on Human and Peoples' Rights constitute shield for the right of the citizens and a limitation on overarching powers of the Nigerian government, even in waging war against corruption.8 However, qualification 'A.G, Ogun State v. A.G, Federation (1982) LPELR-SC.53/1981 (Consolidated); (1982) 1-2 S.C. (Reprint) 7 2 Another example of an executive order is the one on local content in public procurement which was made pursuant to the Public Procurement Act 2007 on fulfilment of domestic preference. Others include the executive order on local content and the one on budget process. Whereas it is the responsibility of the Federal Government of Nigeria to protect the resources of Nigeria from all forms of Corruption; Whereas Corruption constitutes an unusual and extraordinary threat to the well-being, national security and stability of the country's political and economic systems, as well as its continuous existence; and must be effectively addressed; 4 Corruption is often perceived as a Nigerian Factor. Nigerian Factor is the acronym for the practice of bribery and corruption based on the general perception that every public official has a price at which he/she may be bought. It also translates into the general belief that public office/public service is for personal enrichment and accumulation of wealth, as part of every Nigerians share of the national cake for himself/herself and for his/her family, tribe/ethnic group. See J.P. Oliver de Sardan A Moral Economy of Corruption in Africa?, (1999) 37 Journal of Modern African Studies 25 - 55. See also Ngozi Okonjo-Iweala, Fighting Corruption is Dangerous: The Story Behind the Headlines, (2018, The MIT Press, Cambridge) 27-104 International Instruments: United Nations Convention Against Corruption (UNCAC) of2005; AfricanUnion Convention on Preventing and Combating Corruption and Related Offences (AU Convention) of 2003; Economic Community of West African Protocol on the Fight Against Corruption (ECOWAS Protocol) of 2001; United Nations Convention Against Transnational Organised Crime (UNTOC) of 2003. Domestic Legislation: The Constitution of the Federal Republic of Nigeria, 1999: The Criminal Code Act, 1961; Penal Code Law, 1959; Corrupt Practices and Other Related Offences Act, 2003; Economic and Financial Crimes (Establishment) Act, 2004; Money Laundering (Prohibition) Act, 2004 6 EFCC Act Cap El, LFN 2004, section 6 (d) - (f), 7(2). Section 34 (1) of the EFCC Act 2004 empowers the Commission to freeze any account suspected of being used for financial crimes. As stated in Esai Dangabar v. FRN (2012) LPELR-19732 (CA), the EFCC can only freeze our accounts based on the order of a court. In Umezulike v. Chairman, EFCC (2017) LPELR-43454(CA) Ogunwumiju JCA further stated that: It is my humble view that in whatever circumstances, whether it is a matter involving criminal prosecution under the EFCC Act or not, an order of attachment of property can be set aside, quashed or vacated where there is proof that there has been suppression of material facts or misrepresentation of facts or where the Court which made the order had no jurisdiction to make the order See B.O. Nwabueze, The Presidential Constitution of Nigeria (1982), 250. See Uzoukwu vs. Ezeonu ii (1991) 6 NWLR (PT 200) 708 at 1

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