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Court dismisses suit challenging Executive Order 6 to seize alleged corrupt assets

Executive OrderA Federal High Court sitting in Abuja on Thursday upheld the constitutionality of the Presidential Executive Order No. 6 of 2018 recently signed by President Muhammadu Buhari for the preservation of assets connected with corruption and other relates offences.

President Buhari had on July 5, 2018, issued the order aimed at preserving assets linked with corruption and other related offences.

The Order empowers the Attorney General of the Federation (AGF) to take steps, in liaison with relevant investigative agencies, to temporarily seize property linked with corruption pending investigation and conclusion of trial to prevent the dissipation of such assets.

Justice Ijeoma Ojukwu, in a judgment she delivered in the suit marked: FHC/ABJ/CS/740/2018 and filed by two lawyers, Mr Ikenga Ugochinyere and Kenneth Udeze, held that it was within the powers of the President, as granted by the Constitution, to issue Executive Orders for the execution of executive policies, as long as such orders do not offend the doctrine of separation of powers.

The Court held that the President validly issued the Executive Order 6, just as it held that the President can issue Executive Orders under Section 5 of the Constitution in so far as the Order relates to routine administrative matters and internal operations of other agencies, policies and programmes of the Executive as long as it does not encroach into the powers of the Legislature or the Judiciary as delineated under the Constitution.

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Justice Ojukwu said, “Under Section 315(2) of the Constitution, the President and other appropriate authorities may, at any time, by an order, make such modifications in the text of any existing law, as they consider necessary or expedient to bring the law in conformity with the provision of the Constitution. Such order may be brought in the form of Executive Order.

“Under Section 315(2), the President is granted the discretion to first ascertain that such law that was made prior to the 1999 Constitution is inconsistent with the 1999 Constitution. Thereafter, he could exercise his discretion to bring it in conformity with the Constitution. This is the presidential authority which can be exercised in an Executive Order,” the judge said.

Justice Ojukwu said the powers given to the AGF under the Executive Order 6 must be exercised in accordance with the provisions of the Constitution and added also that the Order seemed to give the AGF the discretion on when to seek court’s permission to seize any suspected property.

She noted that the AGF, who is the Chief Law Officer of the country must, at all times, obtain a court order before seizing any asset, which she said must be by exparte motion.

According to Justice Ojukwu, “The AGF must establish compelling and reasonable suspicion that the property is linked to corruption or relevant offences.

“It is pertinent that the honourable AGF, as the overseer of the activities of all the law enforcement authorities listed in the 2nd Schedule to the Executive Order, should ensure due process and uniformity of purpose.”

Justice Ojukwu noted that: “What the President has demonstrated by the Executive Order in question is his willingness to ensure the prevention of the dissipation of assets and funds connected with the commission of the offence of corruption and other related offences, until the determination of any corruption-related matter against the person or firm”.

She said the taking over of the assets, under the Executive Order 6 must be temporary until the pending cases are determined and added that the temporary seizure, which the Executive Order provides, has in no way abrogate the right of any person to seek redress in court.

The court had earlier held that the plaintiffs have the locus standi (the right to bring the suit) because the execution of the Executive Order is not limited to those listed in the Order.

The Plaintiff had argued that the Executive Order 6 violate their rights to own property and denied fair hearing to owners of any property against which the Order is executed.

They prayed the court to declare that the president lacked the powers to issue executive order No.6 as it is not connected with the execution and maintenance of the constitution.

The plaintiff, therefore, asked the court for an order setting aside and/or nullifying the provisions of the Executive Order No. 6 for being unlawful, unconstitutional, illegal, null and void.

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