Executive Order 6: Lawyers differ as Atiku cries out

…Ozekhome, Falana, SERAP: FG’s action illegal, unconstitutional
…No, aggrieved looters free to seek redress in court- Robert Clarke
…Names of high profile cases inherited, action for speedy trial- Presidency
Two days after President Muhammadu Buhari announced travelling restriction on no fewer than 50 high profile persons directly affected in investigations by security agencies in the country, lawyers under the aegis of the Nigerian Bar Association (NBA) were on Sunday divided over the executive order ban.

This is even as the presidential candidate of the Peoples Democratic Party (PDP) in the 2019 general election, Alhaji Atiku Abubakar, on Sunday, faulted President Buhari over the Executive Order traveling ban.

The Daily Times recalls that the Senior Special Assistant to the President on Media and Publicity, Mallam Garba Shehu, had announced the placement of 50 high-profile Nigerians on travel ban, citing the measure as part of the implementation of Presidential Executive Order Number 6.

According to Shehu, the unnamed individuals will be banned from travelling outside the country pending the determination of their corruption cases in order to ensure that all assets within a minimum value of N50 million or equivalent, are not dissipated or tampered with.

By this order, those involved cannot travel out of Nigeria pending the determination of their cases.

Although the identities of those affected were not disclosed, the statement however emphasised that the financial transactions of those of interest are also being monitored by relevant agencies to ensure that the assets are not dissipated and such persons do not interfere with investigation and litigation processes.

But prominent lawyers were divided over the inherent power of the president to restrict movement of persons and or confiscation of such properties of corrupt persons without a valid court order to do so.

First to fire the shot is human rights activist, Chief Mike Ozekhome (SAN), who said: “The recent announcement of the federal government’s ban on certain Nigerians (yet publicly unnamed) is an extreme panicky measure of desperation and obvious descent into totalitarianism, absolutism and fascism.

“It is highly condemnable for being absolutely unconstitutional, illegal, wrongful, immoral, vindictive, dictatorial, panicky and presumptuous of the victims’ guilt, without any trial or convictions.

“The order shows a government wallowing in narcistic self-righteousness, brazen glorification and a false sense of redemptive messianism.

“It will surely boomerang on the government in this electioneering campaign period and strip the government bare of any pretensions towards democratic credentials.

“Presumably anchored on Executive Order 6, it made earlier in July, 2018, the recent clampdown on opposition elements and persons suspected to be against the desperate attempt by this government to cling to power at all cost is nothing but a draconian Decree, a piece of legislative enactment without a National Assembly and an unconstitutional judicial pronouncement outside the orbit of a court of competent jurisdiction.

“It is a vile coup against Nigerians, democracy and constitutionalism. The government by the order turned itself into a court of law to trail citizens, deprive of their freedom of movement and monitor and seize their accounts by fiat,without a valid court order.

Another human rights activist, Mr. Femi Falana SAN, also stated that the action is illegal and unconstitutional.

He said, “There are cases where the accused develop some rare illness which acts up just before the date set for their trial. They jet out of the country to attend to their health and the case is adjourned.

If the medical facilities are not available locally to meet their medical needs is because due to corruption in high places the country cannot build proper medical facilities, equipped with the state of the arts gadgets”.

Notwithstanding such judicial indictment of politically exposed persons seeking medical treatment during trial, the law has not authorised the Executive to restrict the movement of criminal suspects.

“In February 2009, the Federal Government regime directed all Nigerian embassies and high commissions not to renew the passports of Messrs Nuhu Ribadu and Nasir El Rufai (now Kaduna State governor) on account of intra class feud. Both of them were then living in exile.

But as soon as the attention of former President Umaru Yar’Adua was drawn to the case of the Director-General, State Security Service v Olisa Agbakoba (supra) he ensured that the illegal directive was immediately withdrawn.

“For the umpteenth time, I am compelled to caution the Buhari administration to wage the war against the menace of corruption within the ambit of the rule of law.

Since the 50 high profile criminal suspects covered by EO6 have been placed on watch list while their passports have been seized by either the anti graft agencies or the courts, the travel ban slammed on them by President Buhari ought to be withdrawn without any delay.”

In similar vein, a statement issued by Timothy Adewale, the deputy director of a Lagos-based human rights group, Socio-Economic Rights and Accountability Project (SERAP), argued that: “A travel ban by its nature is an interference with the right to leave one’s country.

“It is neither necessary nor proportionate to prevent dissipation of stolen assets or stop politically exposed persons (PEPs) from tampering with any such assets.

“The ban should be immediately lifted and the order rescinded.”

SERAP stated that, “Rather than performing its declared objective of preventing dissipation of stolen assets, the travel ban would seriously undermine the government’s expressed commitment to combat grand corruption and violate the country’s international human rights obligations.

“The travel ban will play right into the hands of high-profile corrupt officials by feeding into the narrative that the fight against corruption is targeted only at political opponents.

“The travel ban and mass surveillance will distract the authorities from taking legitimate action to recover stolen assets, effectively punish high-ranking corrupt officials and portray the government as unwilling to embrace the rule of law in its fight against corruption, thereby making it difficult to obtain the necessary support and cooperation of countries keeping stolen assets.

“The travel ban will also strain the government’s relationships with partner countries, on whom it will inevitably rely for vital asset recovery cooperation, undermining the effort to bring them closer.

“By alienating these partners, the government could lose access to important information and mutual legal assistance necessary to effectively recover stolen assets and bring corrupt officials to justice.

“Judicial affirmation of the legality of the Executive Order 6 doesn’t grant the government arbitrary powers to impose travel ban on anyone without following due process of law.

“Rather than imposing a travel ban, the authorities should take advantage of the provisions of the UN Convention against Corruption to seek mutual legal assistance with countries where investigations and litigation are ongoing by requesting them to apply preventive measures regarding assets covered by the travel ban.

“We are concerned with the threats grand corruption and money laundering posed to the effective enjoyment of human rights of Nigerians, and agree with the authorities that grand corruption and impunity of perpetrators must be vigorously combated.

“But we believe that the fight against corruption will only succeed if it is based on due process of law and respect for human rights.

“If the objective the government seeks to achieve is to ensure stolen assets are not dissipated or that politically exposed persons do not interfere with ongoing investigation and prosecution of corruption cases, the appropriate legal response is for the authorities to pursue orders of temporary forfeiture and mutual legal assistance, and not a travel ban that would achieve nothing but violate citizens’ human rights.

“Nigeria is a state party to the International Covenant on Civil and Political Rights, which in article 12 guarantees the right of everyone to leave any country, including their own.

“The government cannot impose restrictions on this right unless any such restrictions are provided by law, are necessary to protect public order, or the rights of others. The travel restrictions on the alleged 50 corrupt Nigerians clearly do not meet these conditions. All restrictions on the right to leave must be narrowly interpreted.”

But opposing Ozekhome, Falana and SERAP, a senior lawyer, Chief Robert Clarke, SAN, said the Executive Order by the president is in order and that whoever is aggrieved by this order should approach the court for interpretation of the law.

He said:”The order has been validated by a court of competent jurisdiction which is the Federal High Court and if anybody feels unduly or unjustly named in that list then my advice is that they should go to court.

“You see, even though many people will look at the list as not being justified by a court order but once the court has said this thing is in order and there’s no appeal to a higher court, I think other force is to look at it that as for the moment the court order stands.

“Anybody who feels the EO6 by the President is not legal, the best advice I will give is that they should go to court to ensure that their names are removed or asked the court to declare the law unlawful.

“We know that the law as it is subjected to judicial review and the review said it is in order and except there is an appeal, that law stands, the judgment of the court stays.”

Meanwhile, Atiku has faulted President Buhari over the Executive Order traveling ban.

In a statement issued on his behalf by his campaign organisation, Atiku stated that the ban was ‘a throwback to Buhari’s evil Decree Number Two of 1984 which criminalised truth telling if it did not please Buhari, proving that dictators can grow old, but they can’t grow into democrats.’

Citing the 1999 Constitution (as amended) and its provisions on the right to free movement, Atiku said that the Constitution guarantees every Nigerian citizen freedom of movement and freedom of association, insisting that the constitutional right cannot be taken away except by a court order”.

The statement reads in part: “We must be unequivocal in saying that we abhor any act of criminality, financially or otherwise, but the rule of law must be our guide at all times or society will descend to anarchy.

Thus, we find it most undemocratic that in a nation governed by the rule of law, a President who swore an oath to abide by the Constitution of the Federal Republic of Nigeria, does this.

“The Nigerian Constitution guarantees every Nigerian citizen freedom of movement and freedom of association. This Constitutional right cannot be taken away except by a court order.

“This sudden dictatorial act is a throwback to Buhari’s evil Decree Number Two of 1984 which criminalised truth telling if it did not please Buhari, proving that dictators can grow old, but they can’t grow into democrats.

“It is precisely this type of draconian orders that have chased investors away from Nigeria and it is precisely why Nigerians will chase this recession friendly government away from power on February 16, 2019, so we can begin the job of Getting Nigeria Working Again.”

But the Presidency has cleared the air on the Executive Order 6 which has generated controversy, saying that President Muhammadu Buhari-led administration inherited from the previous government, the trial of 50 high profile persons directly involved in corrupt practices.

Responding to the criticism of the Order, the Presidency in a statement by the Senior Special Assistant to the President on Media and Publicity, Garba Shehu, explained that the EO6 came into force for speedy trial of corruption cases which have been pending over the years.

The presidency said: “In the history of independent Nigeria, this is the first time any government is taking such a key decision to fight corruption.

EO 6 is not only revolutionary to the efforts to rid Nigeria of corruption but a manifestation of systemic changes that are required to make necessary adjustments as we carry on with the war against corruption.

“The very essence of the order is to make for speedy trials and conclusion of graft cases. The order is not Politics and there is no political gain behind its activation.

These high profile cases we are talking about have been ongoing for between seven to 10 years with no end in sight. These cases were mostly originated by administrations other than this one.

“What is clear is that the access to these resources by the suspects has enabled them to be in a composition to sometime compromise investigation, prosecution and trial.

“In most of the cases, the courts are held in a helpless position by legal acrobatics paid for from corrupt enrichment by the suspects.”

The Presidency emphasised that the new measures put in place should compel everyone involved to make for a speedy conclusion of all graft cases.

“If it is your money, you have it back. If it belongs to the public, it goes back to the treasury. The question of the constitutionality of the restriction order is answered by the fact that a court of the land has given government a clean bill.

“The Executive Order is legal and constitutional and therefore implementable. One of the cardinal objectives of the government under our constitution is to fight corruption.

Fighting corruption is a responsibility and obligation upon the government. On the so-called list you asked for confirmation, I want to confirm to you that we have not issued any list and we are not doing so.

“These case that are well known and to say this or that name is on it will open the door to further accusations, including trial by media.

The Nigeria Immigration Service (NIS) and other security agencies have the mandate of the President to carry out enforcement and they will do so giving due respects to individual rights, in line with the constitution,” the statement added.