The latest decision of the Nigerian Bar Association (NBA) to challenge Executive Order No 6 signed by President Muhammadu Buhari in July has hopes on the association’s new approach to issues of the rule of law.
In the communique at the just concluded 58th Annual General Conference (AGC), the NBA insisted that Executive Order No 6 is “a breach of the principle of separation of powers.”
The NBA Section dealing with Public Interest and Development Law (SPIDEL) led by Paul Ananaba (SAN) assured that it would soon challenge the Executive Order No 6 and other matters of public interest in court.
Earlier, a SPIDEL panel reviewed indepth the topic: ‘Executive Orders-The Concept, Application and Implications for Rule of Law’ last Wednesday condemned the order as “not worth the paper it was written and a usurpation of powers of other arms of governance.”
Dr Sam Amadi explained that Executive Orders, which in the past were in the form of service-wide circulars issued by the AGF is necessary for operationalising matters of governance like ease of doing business, procurement, and local content, which are all from National Assembly’s legislation.
He however said the powers under the Executive Orders are likely to be abused under a tyrannical ruler.
Ikeazor Akariwe traced the Executive Order to the frustration and good intention of the government to fight corruption but said by the Section 1 of the Order, which states that “without prejudice to existing proceedings”, the order may not be the best way to fight corruption.
Another panelist, Igbeaku Evulukwu called on lawyers to challenge the Order in a court, adding that the application of Executive Order can be declared illegal by the court as it has been done in the United States.
“Seizing people’s property without due process and respect for the principle of separation of powers is illegal. It is a road that promises Eldorado but if you miss it, it leads straight to hell,” she said.
Also, the Alternate chairman of SPIDEL, Ikhide Ehighelua sees the Executive Order as a lack of good legal advice to the government on the provisions of the Constitution.
Dr Daniel Bwala suggests that the Order is related to the battle to move the powers of the EFCC to the office of the AGF.
“The Executive Order No 6 in my opinion does not derogate from existing laws and other support such as valid orders on asset forfeiture,” he said.
Similarly, Kingdom Okere submitted that nothing in the Executive Order No 6 should be regarded as different from the provisions in Section 44 (1) (2) (k) of the 1999 Constitution, which gave the government powers to seize properties for purposes of investigation.
In doing so however, he submitted that the executive still needed to obtain an order of the court under the principle of separation of powers.
All said, observers would want to see the NBA challenge not just the Executive Order No 6 to a conclusion but all other violations of the rule of law and due process by the government.
This expectation was expressed by anti-corruption lawyer, Abeny Mohammed (SAN), who said Usoro attended the school at a time of radicalism and activism at the University of Ife around 1979/80 as the President of Law Students Society, adding that “under his tenure, we hope to get back to where we were before.”
The new president, Usoro in his inaugural address however stated that the NBA and the government are not in a conflictual relationship but in a partnership and collaboration especially as the country prepares for the 2019 general election.
“Such collaboration does not, of course, mean that the NBA would not be critical of government and its agencies when necessary and required,” he said.
“We would at all times be constructively critical of government, and of course, would also commend government when the occasion calls for it,” he added.