Buhari’s Executive Order 6 Is Unconstitutional Umar Sa’ad Hassan By Umar Sa’ad Hassan

The legality of President Buhari’s Executive Order 6 (EO6) has
been affirmed by Justice Ijeoma Ojukwu of the Abuja Federal high
court and right now the most cries against EO6 seem to be centered
round Buhari’s cronies not listed among the 50 persons banned from
travelling outside the country but a careful look at the
constitution viz-a-viz EO6 would show Justice Ojukwu erred in her
decision to uphold the constitutionality of the President’s
EO6.

The exception to the constitutionally guaranteed Freedom of
Movement which the President’s EO6 purports to breathe life into is
Section 41 (2a) of the constitution.

*S.41.— Right* *to freedom of movement – *Every citizen of
Nigeria is entitled to move freely throughout Nigeria and reside in
any part thereof; and no citizen of Nigeria shall be expelled from
Nigeria or refused entry thereto or exit therefrom.

*(2) Nothing in subsection (1) of this section shall invalidate
any law that is reasonably justifiable in a democratic
society—*

*(a) imposing restrictions on the residence or movement of any
person who has committed or is reasonably suspected to have
committed a criminal
offence in order to prevent him from leaving Nigeria;*

I base my submission on the unconstitutionality of EO6 on
Section 36(2) of the constitution.

*36.— Right to fair hearing*

(1) In the determination of his civil rights and obligations,
including any question or determination by or against any
government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its
independence and impartiality

*(2) Without prejudice to the foregoing provisions of this
section, a law shall not be invalidated by reason only that it
confers on any government or authority power to determine question
arising in the administration of a law that affects or may affect
the civil rights and obligations of any person if such law—*

*(a) provides for an opportunity for the person whose rights and
obligations may be affected to make representations to the
administering authority before that authority makes the decision
affecting that person ; * and

(b) contains no provision making the determination of the
administering authority final and conclusive.

Section 36(2a) clearly provides that any law which confers power
on government or any authority to determine questions pertaining to
the civil rights and obligations of persons is legal only to the
extent that it affords those persons an opportunity to make
representations before the administering authority. And don’t for
once think Section 41(2a) which EO6 is hinged on and Section 36
(2a) is one of those instances where the constitution appears to be
contradicting itself. It is not.

The word ‘reasonably’ in Section 41(2) implies an intention for
the determination of the restriction placed under Section 41(2a),
the President’s EO6 to be a fair one. It has always been within the
exclusive confines of the court to determine who is the ‘reasonable
man’.That above every other thing should warn our courts as to the
intentions of the draftsmen to connote fairness rather than
arbitrariness. Having said that,the reasonability of the
circumstances warranting the imposition of such an order can only
be determined if the other party is allowed to make representations
before whomever the administering authority is. Going by the very
explicit provisions of Section 36 (2a).

As soon as the government released a list of persons it labelled
looters; people not so adjudged by our courts, some of us were
quick to warn on the legal implications of doing such. Its a clear
case of defamation of character. As it turns out, High Chief
Raymond Dokpesi and Prince Uche Secondus have instituted cases
against the government demanding billions. The judiciary must guard
against aiding this government perpetrate illegality.

Without a knowledge of legislation stipulating procedures and
ones governing the evidential arm of the law, even the non-lawyer
can key into the ‘spirit of the law’.The reason why they get a lot
of things lawyers get wrong, very right. Just like you can’t call
anyone who hasn’t been so proven by our courts a looter. The
nonlawyer view on it not being right for the President to have it
within his power to ban people from travelling is very much in
order and should be a topic when next our constitution is
amended.

A just law ought to reserve such powers for the courts but until
then,the law as it stands is that he has no powers to decree such
except those persons make representations before him.