Buhari’s Executive Order Devalues Constitution – Wole Olanipekun

Agency ReporterOctober 20, 2018

0 18 minutes read

A former President of the Nigerian Bar Association, Chief Wole Olanipekun (SAN), said that Nigerians must collectively reject the Executive Order recently signed by President Muhammadu Buhari

This Executive Order 6 recently signed by President Muhammadu Buhari has been condemned by many Nigerians, some describing it as a decree. What is the difference between this EO6 and a

A decree under militarism is an absolute law in the sense that it cannot be questioned by the constitution because the decree itself is superior to the constitution. Whenever the military takes over, they oust the jurisdiction of the court in respect to any matter or law promulgated by them. It was the Yakubu Gowon-led government that started the promulgation decrees upon decrees and their supremacy over the constitution. That was where it started. So the decree under the military government is their own form of making a law and the constitution is made subject to the decree and not the other way round. Whereas under the democratic system of government, by Section 1(3) of the constitution, the constitution is the supreme. It says that all laws are subject to the constitution and all laws derive from it and are subsidiaries of it. All laws at the federal level are properly made when the bill is passed by the National Assembly and sent to the President for his assent and when he refuses to do that, the National Assembly can veto it. That is law. So under the constitution, the only law we know and which is recognised, is the law passed by the National Assembly because it is only the National Assembly and the state Houses of Assembly that are vested with the powers and jurisdiction to make laws.

So what is your reaction to it?

The President cannot make laws. In fact, under the constitution, the President is to carry out laws passed by the National Assembly under Section 5. And under sections 287 (1, 2 and 3), the President is also enjoined to enforce all judgments of the court. To my mind and to the best of my recollection, this is the first time that we are having executive orders being put in place. I’m talking as a lawyer. When Chief Olusegun Obasanjo was in power, he did two things which I remember and I was one of those who challenged him. He impounded the local government funds of Lagos State because, according to him, the state had infringed on the constitution. I was involved in the case. We asked ourselves, assuming the state government infringed on the constitution, who has the right to penalise it, more particularly as Obasanjo in his letter, said, “I have looked at the constitution and I have seen that Lagos State government has violated it, therefore you, Attorney General of the Federation, stop releasing funds to the local governments in the state.” The question we put to the Supreme Court, which it answered in the affirmative was that assuming the state government breached the constitution, whose power or jurisdiction was it to adjudge it as guilty? The Supreme Court’s response was against Obasanjo-led government. It came to the conclusion that Obasanjo had no power to interpret the constitution and apply it as if he were the judge. It was a unanimous judgment. But that was not an Executive Order, or maybe it was an Executive Order in disguise but he didn’t term it as such. Then, there was another one, which I was also involved in. The then Vice-President Atiku Abubakar had left the Peoples Democratic Party for another party and Obasanjo asked his press office to declare his position as vice-president vacant.

We challenged Obasanjo’s action and the Supreme Court said he did not have such powers. I’m trying to show what set a precedent to what we are now seeing. Maybe Obasanjo did his in disguise; he didn’t promulgate any order.

If it is not in our constitution, where then did this Executive Order come from?

It is of American origin and even right there in America, you won’t do it as if you are making law.

Does it mean that it has no place in our constitution?

To me, the constitution does not envisage any other law that is enforceable except the law that is made by the National Assembly. How do I mean? The constitution says that no one shall be punished for an offence except the offence is defined and the penalty thereof is provided for in a written law. And what that – Section 36 (12) – is referring to is any law made by the National Assembly. As for the executive order itself, some people are quoting sections there. No, you cannot have sections in an executive order, you can only have paragraphs.

Paragraph 2 of the order says, “by the power vested in the President under section 5 of the constitution….” What does Section 5 of the constriction say? It says “subject to the provision of this constitution….” It is the collective duty of all of us to advise the president properly. When any law says “subject to”, it is not absolute. Even the National Assembly that makes laws is forbidden from making any law that will oust the decision of the court; it cannot do that. What the “subject to” in Section 5 of the constitution is saying among others is subject to the National Assembly making laws, subject to not appropriating and expropriating the powers of the National Assembly and the judiciary. In fact, if you look at the case of AGF against Atiku Abubakar, the Supreme Court said the making of a constitution of a country is the exclusive preserve of the legislature while the function of interpreting its provisions is that of the judiciary, to the exclusion of any other arm of government.

To me, this Executive Order is in form of legislation; it is akin to a law. And you ask yourself, can Mr. President make laws? The answer is no. It is legislative, in fact. To all respect, it is akin to a military decree. When you go to paragraph 2 of the order, it says: “(a) Any Person who in circumvention of this Executive Order attempts to or in fact: (i) interferes with the free exercise of the authorities of the office of the President, (ii) destroys evidence, (iii) corrupts witnesses through cash/kind inducements, and (iv) generally perverts the course of justice shall be prosecuted in line with the provision of any law(s) governing unlawful acts.”

Also to me, the President is making legislation and he has no right to do so. Here again, the order is saying any person who is dissatisfied should go to court. To me, it is not neat enough. It is indirectly circumventing the constitution, and I want to plead that we should not deliberately infringe on the constitution and say anybody who is aggrieved should go to court. The courts are overburdened and we are subjecting our courts to a lot of actions and litigation that are unnecessary. A court of law is not a place for you to prove any point, they are not magicians. It is not a golf course; you don’t go there to try every matter – imaginary or otherwise. It is not a question of saying go to court to challenge it. The President now has the opportunity of listening to the other side. We must not be doing what we know infringes on our constitution and then say we want to test it in court. The court of law is not a practising pitch; it is not Wembley Stadium or Old Trafford. We must also defend and protect the sanctity of the court and not just throw every manner of cases to them and say the poor judges should go and be adjudicating. That is not part of democracy. So the honourable thing to do is to withdraw it.

The constitution is so clear and we have to respect it. So where are we heading?

From what you have said now, can we infer that this Executive Order is illegal?

I’m not a court of law and I don’t want to make the same mistake some people are making by hijacking the duties, functions, powers and jurisdiction of the court. As a lawyer, all I can say is that in my honest opinion, they infringed on the constitution. To me, the constitution does not envisage that a democratic President will go ahead to make far-reaching orders. To me, they infringed on the provisions of the fundamental human rights in the constitution.

Section 44 of the constitution says: “No movable property or any interest in an immovable property shall be taken possession compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and purpose preserved by a law.” The constitution did not envisage or contemplate that one day; we would have an Executive Order competing as a law. You can call a law a statute but you cannot call an Executive Order a statute.

So can we say the President lacks the power to impose a travel ban on individuals in the country?

With all respect, I will say so. Let me answer it as a lawyer; you can ban someone from travelling out of the country if a law is made by the National Assembly and if the constitution has so provided. To me, the National Assembly has not passed such a law. Now the constitution itself by section 4(8) prohibits the National Assembly from making any law that would oust the jurisdiction of the court. So if the National Assembly cannot do that, I doubt if the President can do it. We should not subject anything to happenstance; our constitution cannot be interpreted that way. And I want to plead with those saying that anybody who is dissatisfied should go to court. It is just like someone running people over with his car or maiming people and saying if they are not satisfied, they should go to court. Even the corruption we are fighting, it’s like having your hand in the till and saying anybody who is not satisfied should go to court. Why can’t we decide to do the normal thing or what the constitution expects and enjoins us to do? Why don’t we work within the precincts of the constitution? To me also, who can circumvent or curtail all powers relating to your liberty and my liberty within the ambit of the law? It is the court of law. And from what we have picked from the pages of the newspapers about these people who have been restricted, let us remind ourselves that you have pending cases against them; that is the way it should be. If you suspect that somebody has run afoul of the law, you charge them to court. The law enforcement agencies should do that. If in a particular matter, you have a case titled: Federal Republic of Nigeria vs A. That case is already in court and the court has become dominus litis, meaning the court has taken charge and it is now the custodian of the case. In the court’s wisdom and within the powers vested in the court, the court has granted bail to that individual, including saying ‘don’t travel out of Nigeria except you bring an application.’ And some of these people are before the court and their passports are domiciled in the court. And not once, twice or three times, they have made applications to travel and the various courts have granted their applications. Then you are now saying you are banning them from travelling. By my estimation as a lawyer, you are also hijacking the functions of the court. These cases are also ongoing, so you don’t comment on them, but you are also commenting on them. They are sub judice. Not only that, there is a principle of law called lis pendens – the cases are pending. You respect that and don’t destroy them during litigation. Also, this Executive Order is capable of doing that. Treasonable felony is the most heinous or worst crime within a state. Under militarism, Chief Moshood Abiola was charged with treason. What happened? The Court of Appeal in Kaduna granted Abiola bail. Meanwhile, when you look at the pyramid of the hierarchy of crimes, treasonable felony is up there as number one. You don’t even describe it as primus inter pares, it is in a class of its own. But the Court of Appeal granted him bail subject to don’t travel out of the country, except with the permission of the court. Even under militarism, what the military did was to appeal against that decision, not that an Executive Order would now follow. So by making executive orders in respect of matters in which the court has granted bail to individuals, matters that are bailable, you are also interfering with the duties of the court through the Executive Order, which to me also, is not right and should not be encouraged.

From what you have said, it is clear that the Executive Order is usurping the powers of the judiciary and interfering with the functions of the court, can we describe government’s action as executive rascality?

No, I would not say that because I don’t want to employ that language. When you look at me, I want to be taken seriously. I don’t want to be like others. I want to be Wole Olanipekun. When Nigerians say is that Wole Olanipekun talking, I don’t want to be seen as abusive. Let me maintain my sanity even within the maddening crowd. Let us distance ourselves from the maddening crowd. I don’t want to be like every other person. What I am saying is that what they have done is not in consonance with the constitution and as a lawyer, that is the way I present my cases in court. I have given you examples and precedents. I have referred you to the provisions of the constitution. And for them to take people like us seriously is when we don’t use foul language. I don’t care because some people will read it and abuse me, but they will not be able to provide a superior argument. We are getting into trouble in Nigeria; we are at a stage where we rain abuses on people when they don’t share our views. It is not right. Plurality of opinions is the essence of democracy.

While some have condemned the action in its entirety, some are saying the list should be made public so that affected persons would be aware instead of the secrecy surrounding it. What’s your position on that?

Again, that shows that it is not a law because a law cannot be secretive. A law cannot be made and put within your confines. A law is public commodity which everybody is entitled to see. It makes it more dangerous and to extend it, it takes it closer to infringing on the constitution. The press has brought out some names and the government is saying no. But let me also say something that is very important. Some people are saying why are the names of Iyiola Omisore and Musiliu Obanikoro not there? But that is wrong. Are you saying that if the names of Obanikoro and Omisore are there, you would sanction what you know is against the spirit and the letters of the constitution? Please, let us be serious. No, what is right is right and what is wrong is wrong. Let us say collectively and in a loud voice, irrespective of the names that are there, that this thing is not in consonance with the constitution. When I was the President of the Nigerian Bar Association, I had the opportunity of warning Obasanjo that some of the things he was doing would one day be used against him. I was shouted down and called names. I was declared persona non grata in Aso Villa, even as President of the NBA. But in retrospect, ex-President Obasanjo will now appreciate what I was saying. Now, what is the correlation? We have to be very careful. People will not appreciate roles played by some people. At all times, whatever we believe is not right, let us say that it is not right. When the then Oyo State Governor, Rashidi Ladoja, who was in the PDP, was impeached, it was Asiwaju Ahmed Tinubu, who was not even in the PDP that came to his defence. He called on people like us and said we must defend this democracy. He said if we allowed the President to go on this way, tomorrow we would wake up and there would be no democracy in Nigeria. He said ‘Wole, can you lead a team of lawyers who would challenge this?’ Both the Court of Appeal and the Supreme Court nullified the impeachment.

Peter Obi is now a vice presidential candidate. Some people will not know that that was what paved the way for Obi. He was impeached but for the fact that we won Ladoja’s case, a precedent had been set. If we had not challenged Obasanjo’s action against Atiku, vice-president after vice-president would have been removed. The point being made is that right is right whatever the date, time, dispensation or circumstance and what is wrong is wrong. Another problem now is that there is the lack of a Tinubu in the opposition camp. In those days, he was the one who even defended those in the PDP against Obasanjo’s tyranny and highhandedness. He would give them advice and support. Under his administration, Lagos State recorded not less than six to eight judgments against the Federal Government’s infractions of the constitution. Whatever anybody can say about him, Nigeria needs a man like him outside the government of the day to help to checkmate the excesses of the government. The opposition needs to wake up. At a point in time, he was the only opposition governor in the South-West and he was a thorn in the flesh of Obasanjo. If not for him, multiparty system would have been destroyed in Nigeria.

Some people are encouraging it, saying it is because of the situation we have found ourselves.

So are we going to say because somebody has committed rape and insulted the dignity of women, he should be taken to the firing squad by an Executive Order?

Even according to the Economic and Financial Crimes Commission Act, before it can confiscate any property, it must go to court and what the law even says is interim forfeiture.

Let us also extend it even to the threat it poses to our economy. Assuming that some investors are interested in bringing money to Nigeria and they see this kind of thing happening, won’t they panic hearing that you can make such an Executive Order which can confiscate their property? And property can be tangible or intangible. It can be in terms of houses and also funds in banks.

Jurists all over the world describe some rights as inalienable rights- rights given to man by God.

This Executive Order is tampering with them and we must be careful. Somebody said some time ago that we should forget about rule of law for a while. No, we cannot do that. If you say we should forget about rule of law for a while, then forget about your right to life for a season because it is also protected by rule of law. Even in the Bible, God says come, let us reason together. In Nigeria, we don’t want to reason together. We abuse anybody who has a contrary view. We curse them. I don’t want to mention names but that is what is happening and it even concerns some of the best in our profession.

You were once the President of the NBA and one would expect the body to have reacted swiftly to this or even rushed to court to challenge it. Isn’t it strange then that the NBA has been silent on this?

I have spoken about the NBA in the past and a new president is in place and I am trying to encourage him. So I won’t want to pass any comment on the NBA for now since a new president has just come in and more particularly as we have been having discussions.

Sometimes one is confused as lawyers are part of the body involved in things like this. For instance, the AGF and Vice-President Yemi Osinbajo are lawyers like you. Does it mean they don’t know it’s wrong or their judgment has been clouded?

My take on the position of the AGF is that I don’t envy him. I don’t envy whoever is the AGF because there are so many competing interests. But my worry is about the sacred institution of the judiciary. The court is already overwhelmed. And some people are saying if you are dissatisfied, go to court. That should not be the trend.

But even apart from the AGF, we also have the vice-president who is well grounded in law and should know better in this government, what is your view on that?

I would not want to comment on the vice-president because it will be unfair; he didn’t sign it. It would be unfair to him. If he had signed an Executive Order like this when he was the acting President, I would have got in touch and asked for reasons. It would not be because he is the vice-president but because he is a lawyer. But for the AGF, I will say I don’t envy him.

We know you don’t want to comment on the NBA but let’s be hypothetical. Looking forward now, is there nothing that a body like the NBA can do to challenge this matter if the government doesn’t withdraw it?

Let us leave the NBA alone. My advice is this: the Supreme Court itself has said that it is supreme, not because it is infallible, all wise or all knowledgeable, but because the constitution makes it supreme. What is the point I’m making? If the Supreme Court could say that despite all the powers vested in it by the constitution, let us appreciate that we are all humans. And I am picking my words. You asked me if it was executive rascality and I said I would not want to go there because if the president reads that, he will look at it as an attack and push it aside. Let everyone appreciate that where your wisdom ends, mine begins and where another person’s ends, another person’s starts. No human being has the monopoly of wisdom. That is the essence of the press, for enlightenment. It has never happened and it is now happening. I want to plead with the Presidency we don’t need to go to court for everything, please. Let us come off it. How many judges do we even have? Where do some of them work? Some of them work in places you can better describe as ovens. Are you even equipping the courts? My plea is that this Executive Order should be withdrawn. Our government should learn from us, they must listen to us. Unfortunately, people who are in position of power in Nigeria are always enslaved. At times, they are like Alice in wonderland. They are treated like deities who nobody can look at eyeball to eyeball. Nobody can advise them rightly. I was in government as attorney general for two years. And there was an occasion where workers in Ondo State embarked on strike for nonpayment of salaries. Traditional rulers stepped in and we had a meeting. And the leader of the union said a lot of things and the governor got enraged. Out of anger, the governor beckoned to a policeman and said get him arrested. I was seated next to the governor. I whispered to him and said sir, you don’t have the power. You could have heard a pin drop there for about X minutes; the governor didn’t say a word. And you know, the governor, Bamidele Olumilua, is a very brilliant person. After some time, he said jocularly, I have been overruled by my boss here. He beckoned to his people to come back. They didn’t praise me, the monarchs and everybody there started praising the governor, clapping. You know what, the leader of the union, who I won’t like to mention his name, stood up and said this is democracy in action. He said Mr. Governor, you have been so magnanimous; for listening to your attorney general, we call off the strike. There was uproar. I am talking as a lawyer and if they want to take me as a senior citizen, I will be humbled. But this order is not in the interest of the nation, the government, our economy, our jurisprudence and it devalues our constitution.

But can we say this came out of the frustration of the Presidency to get things done faster in its bid to fight corruption?

The presidency cannot say it is frustrated; you cannot be frustrated by the legal process. The legal process can never be rushed and in any event, the Presidency is saying that they have secured many convictions; it is okay. And some people are also querying that courts are not convicting people. Courts cannot convict on every matter. Courts will convict where there should be convictions and they should be based on facts.

To be put you in the hot seat now, you were a mentee of Chief Alao Aka Bashorun, who was an activist, even as NBA President. If this government insists on going ahead with the Executive Order, will you challenge this in court?

I am Wole Olanipekun. Everybody is a brand and I am also a brand. Within the legal profession, they know the limits of my branding. Some people are cut out for that; I have not been doing it. But if somebody briefs me, I will do my best in the court room. I have my own style. Those doing it, I commend them, I am not condemning them. Paul plants, Apollo waters, who gives the increase? God! The ministry of Paul was different from that of Peter the Apostle. I won’t say I will go to court and challenge it. I have not been doing it. I have given you a tip of the iceberg. Who restored Olusegun Mimiko’s stolen mandate? Who did that of Adams Oshiomhole? Who did that of Kayode Fayemi? Who challenged that of James Faleke, even though we lost? Who handled Marwa vs Nyako? I didn’t take a dime from Marwa.