The Presidency yesterday maintained that the Executive Order 6 is not a political weapon against opposition but part of revolutionary efforts to rid Nigeria of the menace of corruption.
It also disowned a list in circulation containing names of the 50 high profile persons reportedly banned from travelling out of the country.
In a statement by senior special assistant to the president on media and publicity, Malam Garba Shehu, 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.
Shehu dismissed insinuation in some quarters that the activation of the EO 6 was targeted at some individuals or politicians in the country.
He said, “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.’’
The presidential spokesman further explained that in most of the cases, the courts were held in a helpless position by legal acrobatics paid for from corrupt enrichment by the suspects.
He expressed the hope that the new measures put in place would compel everyone involved to make for a speedy conclusion of these cases.
“If it is your money, you have it back. If it belongs to the public, it goes back to the treasury,’’ he said.
Shehu added that the question of the constitutionality of the restriction order had been answered by the fact that “a court of the land has given government a clean sheet.’’
He continued: “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,’’ he further maintained.
On the list of those affected by the EO 6, the presidential aide said: “I want to confirm to you that we have not issued any list and we are not doing so. These cases 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 Immìgration Service 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 presidency had on Saturday announced that following the implementation of the EO 6, 50 prominent personalities, whose names were not stated, were placed on a watch-list and therefore restricted from leaving the country pending the determination of their cases.
The order seeks to restrain owners of assets under investigation from carrying out any further transaction on such assets.
But, the opposition Peoples Democratic Party (PDP) had condemned the activation of the EO 6, saying the federal government’s ban of 50 Nigerians from travelling abroad was a direct clampdown on democratic order.
Only Court Can Impose Travel Ban
But some senior lawyers in the country yesterday challenged the legality of the Executive Order 6 invoked by President Muhammadu Buhari to ban 50 prominent Nigerians facing corruption charges from travelling out of the country.
The legal experts, including members of the inner bar, who spoke to LEADERSHIP yesterday on the legality or otherwise of the action insisted that even though the law has provisions for stopping a person facing trial from leaving the country, it is only a court of competent jurisdiction that issue such an order.
A learned silk, Mike Ahamba (SAN) said the endurance of that order will depend on the reaction of those it was made against.
He said, “This is because it is not a general order. So, if somebody makes an order saying a person should not travel, it is for the person concern to challenge the order in court. I believe that if the order is challenged in court, it will be successful.
“An Act of the National Assembly which goes contrary to the Constitution is a nullity from the onset, let alone an order by an officer in the government of the country. So, I do not think the order can survive judicial searchlight.
“It is true that the court had said the president has a right to make Executive Orders but that does not give him powers beyond that of the National Assembly, though I have not been fortunate enough to find which section of the constitution allows him to make Executive Orders. I don’t know who advised him to do it.
“The law has provisions for stopping a person suspected to have committed a crime from leaving the country. It is only by due process of the court. I think we are moving gradually towards dictatorship if someone can just stay in his office and order people not to travel without any court order”.
On his part, Mike Ozekhome (SAN) noted that the government, by the order, turned itself into a court of law to try citizens, deprive them of their freedom of movement and monitor and seize their accounts by fiat without a valid court order.
“The Executive Order 6 cannot even enjoy the derogation qualification granted under Section 45 of the Constitution, which permits restriction and derogation from the observance of Section 41 under the law reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health, or for the purpose of protecting the rights and freedom of other persons.
“This is because it is not a law and but a mere executive order. Nothing more. Those affected should head for the courts immediately and get it struck down. It usurps the functions of a court of law and the National Assembly that has already promulgated the EFCC, ICPC and Money Laundering Acts, all of which allow for interim forfeiture and attachment of citizens’ money and properties, but with an order of a court of law.
“That was what Justice Ijeoma Ojukwu said in her judgement. She made it clear that although Executive Order no 6 was not itself wrong, the Attorney General of the Federation must first obtain an order of court under section 174 of the Constitution, and that the enforcement of the order must never derogate from the rule of law or derogate from the doctrine of separation of powers or the fundamental rights of Nigerians.
“No one has ever doubted the legality of Executive Orders, which are regularly issued by American presidents, where from we borrowed our presidential system, but same must conform with laid down procedure, due process, citizens’ rights and rule of law. That is the way to go”.
Also, human rights activist, Femi Falana (SAN) picked holes in the travel ban placed on the 50 prominent Nigerians.
Urging the president to immediately withdraw the travel ban, he said it is “superfluous” in the sense that either the court or the various anti-corruption agencies had already seized the passports of the affected persons.
According to him, it is an ingenious design to expose the Buhari administration to ridicule.
Falana said, “If the federal government had done some background checks it would have discovered that the names of the 50 VIPs have long been placed on security watch list, while their passports have been impounded by the anti-graft agencies or the courts as one of the conditions for admitting them to bail.
“It is public knowledge that whenever the defendants wish to travel abroad for medical treatment they usually apply for the interim release of their passports. Since the courts have taken judicial notice of the perilous state of medical facilities in the country such applications are usually granted.
“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 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.”
He maintained that the statement on the travel ban issued by presidential spokesperson, Garba Shehu, was not necessary and could heat up the polity.
Another lawyer, Solomon Ukhuegbe, argued that the power to prohibit departure from Nigeria in the public interest is vested in the Minister of Interior by Section 31 of the Immigration Act 2015.
According to him, this is therefore an existing statutory power potentially exercisable under Executive Order No. 6 of 2018, especially as the Immigration service is one of the agencies mentioned in the Order required to cooperate in its implementation.
He however said, “Notwithstanding the foregoing, I’m not certain whether a court would necessarily accept that a travel ban is justified to prevent dissipation of assets, especially where those assets are not abroad.
“The right of citizens to exit Nigeria subject to public interest restrictions is constitutionally guaranteed. In Agbakoba’s case, a few decades ago, the court said the right could not be arbitrarily deprived and that it implied a right of a citizen to a passport.
“Even if the travel ban is not necessary for the purpose of preventing dissipation of suspicious assets in every case, it will have the beneficial effect of curbing the present practically universal practice of accused persons in corruption trials delaying trial by getting the court’s permission to travel abroad for all manner of reasons. This abuse defeats one of the principal objectives of the Administration of Criminal Justice Act 2015”.
Alsom, the Socio-Economic Rights and Accountability Project (SERAP) described the decision as clearly arbitrary, repressive and illegal.
The civil society organization also demanded that the ban should be immediately lifted and the order rescinded.
According to SERAP, the restrictions which is without any legal basis and a judicial authorisation, breaches constitutional rights and the country’s international obligations, which protect the rights to freedom of movement, to leave one’s country, to privacy, and to due process of law.
SERAP maintained: “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.
“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”.
Atiku Kicks, Says ban ploy To Intimidate Opposition
In his reaction, the PDP presidential flag bearer, former Vice President Atiku Abubakar yesterday declared as illegal and undemocratic the Executive Order 6, which banned some Nigerians from traveling out of the country.
He noted that it is designed to intimidate members of the opposition ahead of the 2019 general election.
In a statement by his presidential campaign organization, Atiku added that the order, which smacks of the Decree Number Two of 1984 that criminalised truth, will result in capital flights from the country and recession.
Atiku lampooned the Buhari administration for including late former Chief Judge of Enugu State, Justice Innocent Umezulike, as number 30 on its travel ban list, noting that an administration that cannot distinguish between the living and the dead cannot revive the economy.
He said, “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.
“If past events are to be the judge, these 50 individuals will conveniently be critics and opponents of the Buhari administration. This is nothing short of intimidation ahead of the 2019 elections. This is what the Buhari administration did in Osun where they froze the accounts of the Adeleke family and then illegally and clandestinely paid N16.7 billion to the Osun state government to facilitate daylight electoral robbery.
“To show how clueless this administration is, it included late former Chief Judge of Enugu State, Justice Innocent Umezulike as number 30 on its travel ban list, The question Nigerians should ask is this: can an administration that is unable to distinguish between the living and the dead bring life to Nigeria’s economy?”
The campaign organisation added that the Nigerian Constitution guarantees every Nigerian citizen freedom of movement and freedom of association, stressing that it cannot be taken away except by a court order.
“If the Buhari administration wants to curtail the rights of Nigerians, then they must go to court and obtain a court order. Anything short of this is unconstitutional and extrajudicial”, it added.