Under the guise of retooling his fight against corruption, President Buhari recently enacted by presidential fiat his Executive Order No.6. The Order gives the Attorney General of the Federation and the administration's law enforcement agencies the imprimatur to, EVEN WITHOUT THE ORDER OF ANY COURT OF LAW, seize and freeze the assets of any person against whom allegations of corruption have been made pending the outcome of investigations.
The Order is a far-reaching piece of Executive legislation with horrifying consequences for proprietary rights which are among the fundamental rights protected by Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Attorney General claims that the President derives his power to enact the said Executive Order from section 315 of the Constitution.
This particular Executive Order No. 6 is arbitrary and whimsical, and goes beyond the scope of the powers granted the President by section 315(2) of the 1999 Constitution. The power granted the President under the section is merely for the purpose of enabling him to:
"…..at any time by Order make such modifications in the text of any existing law….to bring that law into conformity with the provisions of this Constitution."
In proceeding to enact a brand new and far-reaching legislation purportedly acting pursuant to section 315, the President clearly went beyond the scope of the powers granted by the section. It is grotesque and odious to read into a constitutional provision what is not there and appropriate powers not conferred. Buhari merely rubbished the separation of powers principle enshrined in the 1999 Constitution and usurped the powers of the Legislative branch of government which alone has the the exclusive powers to make laws.
Section 315 does not by any stretch of the imagination give the President the Power or discretion to displace the legislature as he has done with his Executive Order No. 6, initiate and pass legislation in flagrant disregard of section 4(1) of the Constitution which provides that "the legislative powers of the Federal Republic of Nigeria shall be vested in the National Assembly…"
Executive Orders can therefore clearly not be used to circumvent and breach express provisions of the Constitution. On the contrary, the clear and express intendment of section 315 is that in applicable cases, the President can only modify the text of an already existing statutory provision so as to bring it in conformity with the provisions of the Constitution.
But that is not what this President has done. He has originated a draconian legislation by himself, enacted same without recourse to parliament, and that legislation is even in conflict with the express provisions of sections 4, 6, 36, 43 and 315 of the 1999 Constitution(as amended). The right to property which Buhari's Executive Order No.6 so cavaliarly seeks to undermine is so fundamental that the Constitution itself requires that section 43 of the Constitution which guarantees it can only be amended, not even by a two- third majority of both Houses of the National Assembly applicable to other provisions, but by four – fifths, in addition to the concurrence by resolution of at least 24 State Houses of Assembly. (See section 9 of the Constitution.)
Executive Order No. 6 is a savage blow on the letters and spirit of our Constitution, and an egregious assault on democratic principles. It is an arrant piece of executive legislation which betrays the President's desire to constitute himself into a lawless leviathan with an open disdain for the principle of separation of powers and of checks and balances. It signals the commencement of our nation's slide to fascism and trenchant arbitrariness.
Under a constitutional democracy, a fundamental breach of the Constitution, the GRUND NORM, is unjustifiable, not even by the overarching necessity of fighting corruption; it is a war that must be fought, not in abnegation of the Constitution, but within its hallowed ambits. To do otherwise is to, abuse power, corrupt the polity itself, and invite inevitable chaos!
The so called Executive Order No. 6 is therefore dead on arrival. It cannot stand by virtue of section 1(1) & (3) of the Constitution, being ultra vires, capricious, arbitrary, unconstitutional and thus void. Nobody should lose sleep over a shambolic order.'
Kenneth Ikonne is a legal luminary
