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


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