The Abuja Division of the Federal High Court, Thursday, upheld the constitutionality of the recently signed Presidential Executive Order No. 6, which permits the Federal Government to confiscate assets belonging to persons facing corruption related charges.
In a judgment delivered by Justice Ijeoma Ojukwu, the court held that President Muhammadu Buhari did not act beyond the powers available to him under the 1999 Constitution, as amended, by issuing Orders that would enhance the implementation of Executive Policies.
It held that such Executive Order remained valid, as long as it does not affect the functions of other arms of the government, or offend the doctrine of separation of powers.
However, the court warned that the Order, which 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, must be executed with strict adherence to provisions of the constitution.
The judgment followed a suit lodged before the court by two rights activists, Mr Ikenga Ugochinyere and Kenneth Udeze.
The plaintiffs have in their suit marked: FHC/ABJ/CS/740/2018, prayed the court to, among other things, determine whether by the combined effects of sections 5, 36 and 43 of the 1999 Constitution, as amended, President Buhari had the powers to issue or implement such order.
They urged the court to equally determine whether having regard to the aforementioned sections of the Constitution, the act or conduct of the President in issuing the order which intends to interfere with ownership, and disposition of assets or properties of the persons listed at the First Schedule, was constitutional.
As well as to determine whether having regards to the sections, the President could validly exercise his constitutional powers by deliberately undermining the rights of any citizen to fair hearing.
Upon determination of the questions, the Plaintiffs sought a declaration that President Buhari lacked the powers to issue executive order No.6 as it is not connected with the execution and maintenance of the constitution.
“A declaration that the act or conduct of the President in issuing the order interferes with, or encroach into the ownership, or otherwise of the assets or properties of any person without such person being found guilty by a court of competent jurisdiction, is unconstitutional, null and void.
“A declaration that the president cannot validly exercise his constitutional powers by deliberately undermining, limiting and/or inhibiting the entrenched constitutional rights of any citizen of Nigeria to fair hearing vide the issuance of the Order.”
Besides, the Plaintiffs applied for an order of court setting aside and/or nullifying the provisions of the Executive Order No. 6 for being unlawful, unconstitutional, illegal, null and void.
They also asked for an order of injunction restraining the Defendants from enforcing or giving any or further effect to the order.
Cited as Defendants in the matter were President Buhari and , Abubakar Malami, SAN, the Attorney-General of the Federation and Minister of Justice.
While dismissing the suit, Justice Ojukwu noted that the Presidential Executive Order was issued as a policy directive for the implementation of provisions of extant laws.
She said there was nothing to prove that the Order stripped any citizen that is aggrieved about its enforcement his right to approach the court for redress.
While reiterating that the Order must be implemented in accordance with principles of the rule of law, Justice Ojukwu held that the coordinating role imposed on the AGF was subject to section 174 of the Constitution and must be predicated on the existence of facts.
The Judge, who further noted that the Order seemed to accord the AGF with the discretion to decide when to seek court’s permission to seize any suspected property, stressed that the AGF must at all times, obtain a court order before confiscating any asset.
She held that such application for judicial leave to seize assets of suspected corrupt persons could be made ex-parte.
Justice Ojukwu also said she was of the view that the Executive Order No. 6 did not violate the right of citizens to own property, but was informed by the President’s willingness to preserve suspected property from being dissipated while investigation or trial was ongoing.
It will be recalled that President Buhari had on July 5, 2018, issued the Presidential Executive Order which he said would not only enhance the anti-corruption drive of his administration, but also boost his effort to recover stolen assets.
