The discretionary
power previously granted to the president to order for forfeiture of assets was
on Thursday, July 2, transferred to the judges of a High Court.
The bill, which was
passed in plenary, yesterday, July 2, is sponsored by the Deputy Speaker, Mr
Ahmed Wase and is entitled “a bill for an act to amend the currency conversion
(freezing orders) act cap. C.43, Laws of the Federation of Nigeria, 2004 to
give discretionary powers to the judge of a High Court, to order forfeiture of
assets of affected persons and for related matters.”
Presenting the bill,
the deputy speaker said, “It is noteworthy that the provision for forfeiture in
our laws is geared towards ensuring that persons found guilty of offenses do
not benefit from the proceeds of those offences.”
He said the
discretionary power previously granted to the president by the Principal Act is
hereby being replaced by that of a High Court Judge to bring it in line with
the spirit of the constitution.
Wase argued that the
provision, which vest in the president the power to order forfeiture of
property (both movable or immovable) “is not in spirit with the provisions of
the 1999 Constitution (as amended) and hence the need for its amendment.
“Section 44 of the
1999 Constitution (as amended) guarantees the fundamental right of individuals
to movable and immovable properties, which shall not be deprived except in
specified circumstances which include the ‘imposition of penalties or
forfeiture for the breach of any law whether under any civil process or after
conviction for an offence’. (S. 44 (2) (c).
“Mr Speaker,
colleagues, it is our submission that such breach, can only be determined by
the judge of a court and should never be at the discretion of the president.
“It is further noted
that the discretion of the president to order the forfeiture of property of an
accused person can be subjected to executive abuses and recklessness. Section 9
in the Principal Act does not provide any mechanism (whether legal or
administrative) through which the President may exercise this power. Instead
the power is left solely at the discretion of the President.
“In a country that
has witnessed reckless abuse of political and administrative powers, it will be
dangerous to allow such unchecked arrogation of powers to determine the forfeiture
of a person’s properties.”
“Such discretion to
be exercised by the president can be contrary to the natural doctrine of fair
trial as it amounts to the executive being a prosecutor and a ‘Judge’ in its
own case.
“This negates the
spirit of the 1999 Constitution (as amended) specifies the conditions under
which a person can be deprived of movable or immovable properties and that is:
‘under any civil or after conviction for an offence’ after a fair trial.
“The president
cannot therefore, usurp the powers of the courts for such will run foul of the
doctrine of Separation of Powers.
“Vesting in the
president the power to make forfeiture order smack of the era of military
dictatorship where the Head of State and Head of the Supreme Military Council
and unilaterally order the forfeiture of properties of persons without recourse
to any judicial mechanism. This cannot be allowed to exit in a democracy. I
therefore urge you all to support this amendment bill.”
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