Shittu

Indeed, these are interesting times. Recent events in our country including public declaration of assets by the President and Vice-President and the controversy surrounding the proposed arraignment of the Senate President before the Code of Conduct Tribunal may have forced a closer examination and appraisal of the relevant stipulations on the Code of Conduct for public officers, if for no other reason than the quest for public information and enlightenment.

However, as a law officer, I will warn myself not to comment on the merits or otherwise of any of the pending cases in court. This approach is in line with ethics and demands of professionalism.

The preliminary point to be made is that the Code of Conduct Tribunal is statutory being a creation of the constitution. The seriousness of the provisions on Code of Conduct for public officers is underscored by the fact that it is incorporated into the constitution of the Federal Republic of Nigeria, 1999 (as amended) under the 5th Schedule Part I. there is also a special legislation enacted for this by virtue of Chapter C15 Code of Conduct Bureau and Tribunal Act, No. 1 of 1989 Laws of the Federation of Nigeria, 2004 with commencement date of 1st January 1991 which is an act to provide for the establishment of the Code of Conduct Bureau and Tribunal to deal with complaints of corruption by public servants for the breaches of its provisions.

The Vice president, Prof. Yemi Osinbajo (SAN), GCON, in a paper titled: “Strengthening the Code of Conduct Bureau”, argued as follows:“The Code of Conduct for Public Officers is a component of the Nigerian anti-corruption and transparency framework. It is perhaps the first formal legislation creating offences and sanctions for official corruption and other acts in breach of the prescribed ethics for public officers.

Of considerable significance is the fact that the entire code of conduct regime under Nigerian Law is provided for in the Constitution.

The Constitution provides for the Code of Conduct itself, the categories of public officers who are subject to its provisions, the Code of Conduct Bureau, which is to enforce compliance with the Code of Conduct, and the Code of Conduct Tribunal-which is to try cases of infraction of the Code of Conduct. This is both its strength and its weakness. The entrenchment in the Constitution means that it cannot be altered at all as might an Act of the National Assembly .

This also means that amendments to the provisions establishing the Code of Conduct Bureau and Tribunal is not possible by an Act of the National Assembly without an amendment to the Constitution itself. It is in fact unconstitutional to repeat constitutional provisions verbatim in another Law of the Legislature. [A.G Abia State V. A.G Federation (2002) 6 NWLR (Pt. 763) 264 SC.]

However Section 15 (4) of Part 1 of the 5th Schedule of the Constitution to the effect that National Assembly may confer on the Code of Conduct Tribunal such additional power s as may appear necessary to enable it more effectively discharge the functions conferred on it by the Schedule.

It is also noteworthy that some of the provisions in several other anti-corruption legislation overlap the Code of Conduct provisions of the Constitution.“

Analysis

Against this background, this analysis will focus on the salient provisions of the Code, namely: “conflict of interest with duty; restrictions on specified officers; prohibition of foreign accounts; retired public officer; certain retired public officers; gifts or benefits in kind; restriction on loans, gifts or benefits to certain public officers; bribery of public officers; abuse of powers; membership of societies; declaration of assets; allegation of breach of code; agents and nominees; exemptions; code of conduct tribunal; staff; tenure of office of chairman and members; powers; interpretation.”

The searchlight shall also cover salient provisions of Code of Conduct Bureau and Tribunal Act and the powers and operational modalities of the Code of Conduct Tribunal.

Restrictions on Public Officers

Every public officer is obliged to forestall conflict of interest with his duties including not to “(a) receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public officer…” the only exception is where the public officer “… is not employed on full time basis, engage or participate in the management or running of any private business, profession or trade but nothing in this sub-paragraph shall prevent a public officer from engaging in farming.”

There are also restrictions on public officers to maintain or operate a bank account in any country outside Nigeria including restrictions against acceptance of gifts or benefits in kind. Restrictions on loan, gift or benefit also apply to certain public officers who could not draw facilities except from government or its agencies, a building society mortgage institution or other financial institution recognised by law. Further restrictions include prohibitions against bribery of public officers, abuse of powers and membership of societies incompatible with the functions on dignity of his office. More importantly, every public officers shall declare assets at end of every four years and at the end of his term of office and submit to the Code of Conduct Bureau a written declaration of such properties, assets and those of his unmarried children under the age of 18 years, subject to verification by the appropriate authorities. Of course, there are consequences for the breach of any provisions of the Code of Conduct, with complaints on such breaches referable to the Code of Conduct Bureau, the actions of the agents and nominees of such public officers are also attributable to the public officer concerned.

The Code of Conduct Bureau

The Code of Conduct Bureau is established pursuant to the Code of Conduct Bureau and Tribunal Act with aims and objectives which include ensuring “…a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability.” The functions of the Bureau shall be to “receive assets declarations by public officers in accordance with the provisions of this Act; examine the assets declarations and ensure that they comply with the requirements of this Act and of any law for the time being in force; take and retain custody of such assets declarations; and receive complaints about non-compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act; provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary.”

The Code of Conduct Tribunal

The Code of Conduct Tribunal is established under the 5th Schedule Part I to the Constitution of the Federal Republic of Nigeria 1999 and pursuant to the Code of Conduct Bureau and Tribunal Act referred to above.

There are far-reaching provisions detailing “establishment, staff, tenure, powers to impose punishment, rules of procedure and institution of proceedings, power to issue search warrants including interpretation” of the words used under Part 3 of the Code of Bureau and Tribunal Act. In all of these provisions, it is important to examine the jurisdiction, scope of powers of the Tribunal to impose punishment, reference of cases to the tribunal and court to which proceedings on appeal lies for the decisions of the Code of Conduct Tribunal.

Jurisdiction

The Code of Conduct Tribunal has jurisdiction to adjudicate upon complaints brought before it by the Code of Conduct Tribunal arising from breaches of the provisions of the Code of Conduct for public officers stipulated under the 5th Schedule Part I of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and breaches arising from the Code of Conduct Bureau and Tribunal Act No. 1 of 1989 with commencement date of 1st Januray 1991.

Prosecutions for all offences are instituted in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such officers in the Federal Ministry of Justice with authority to institute such proceedings by the Attorney-General of the Federation. It is however not clear whether anyone can challenge such delegated powers by the Attorney-General of the Federation.

Scope of powers

Section 23(2) of the Code of Conduct Bureau and Tribunal Act provides: “The punishment which the Tribunal may impose shall include any of the following: Vacation of office or any elective or nominated office, as the case may be;

Disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and Seizure and forfeiture to the State of any property acquired in abuse or corruption of office.”

The tribunal also has power to issue search warrants by virtue of section 25 of the Code of Conduct Bureau and Tribunal Act.

Reference of cases to the Tribunal

Section 3 of the Code of Conduct Bureau and Tribunal Act assigns the responsibility of receiving complaints for breach of the code to the Code of Conduct Bureau and reference of such complaints to the Tribunal is also vested in the Code of Conduct Bureau, where any party makes a written admission of such breach or non-compliance, it will not be necessary for the Code of Conduct Bureau to make any reference of such complaints to the Tribunal.

“Prosecution of offences shall be instituted in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such officers in the Federal Ministry of Justice as the Attorney-General of the Federation may authorize to do so.”

Private legal practitioners may also obtain a fiat of the Attorney-General to undertake such prosecutions. There is however a caveat to the effect that: “…the question whether any authority has been given in pursuance of this subsection shall not be inquired into by any person.”

Appeals from the Code of

Conduct Tribunal

With regard to appeals from the Code of Conduct Tribunal, the provision of section 246(1a) of the 1999 Constitution is important as it provides: “.An appeal to the Court of Appeal shall lie as of right from decisions of the Code of Conduct Tribunal established in the fifth schedule to this Constitution”.

It follows from the above that only the Court of Appeal has appellate and supervisory jurisdictions over the proceedings of the Code of Conduct Tribunal and not any other court.

The Constitution Vs the Act

The Constitutional provisions for Code of Conduct of public officers is very elaborate (see: Part 1, 5th Schedule CFRN 1999) Various sections of the Code of Conduct Bureau and Tribunal Act are in conflict with the Constitutional provisions on the subject matter e.g: ‘The non-liability and indemnity clause enuring for the benefit of the Chairman and Members of the Bureau in any action or litigation against them for liabilities incurred in the course of the discharge of their offices is not recognised by the Constitution (see Section 19 of the Act) unlike the Act, the Constitution obliges the Bureau to make declaration of assets of public officers available for inspection of any Citizen of Nigeria on terms to be determined by an Act of the National Assembly (Compare Para 3 (c) Part 1, 3rd Schedule CFRN and Section 3 (c) of the Act.

While under the Act, the Bureau’s powers is limited to receiving complaints about non-compliance with the Code of Conduct and referring same to the Tribunal, the Bureau has powers to investigate such complaints, ensure and enforce compliance with the Code under the CFRN 1999. (Compare Para 3 (d) & (e) of the CFRN and Sec 3 (d) of the Act).

The proviso to Section 3 (d) of the Act in respect of waiver of reference on admission is not recognised under the Constitution.

While the National Assembly is mandated to make laws for the discipline of staff of the Bureau in the Constitution, the Act mandates the Presidents to make rules in that respect (Compare Section 4 of the Act and para 3 (f) Part 1 Schedule 5 of the Constitution) Under the Constitution, the public officers prohibited from owning foreign bank accounts are restricted to political office holders and do not include members of the judiciary while the Act makes a sweeping generalisation in that respect. (Compare par 3 Schedule 5 of the Constitution with Section 7 of the Act).

The age of the declarant’s children whose properties must also be declared vary. Under the Constitution, the age limit is 18 years while the Act peg the age at 21 years. (compare par 11 Schedule 5 of the Constitution with Section 15 of the Act).

There is no provision in the constitution in respect of declaration of asset by a serving officer similar to Section 15 (c) of the Act.

Under the Act, the Tribunal’s power to impose the penalty of vacation of office is in respect of all public offices whereas the penalty can only be meted in respect of legislative offices (Compare par 18 (2) (a) & (b) of the Constitution with Section 23 of the Act.

The power of the Tribunal to issue search warrants under Section 25 of the Act is not stipulated for under the Constitution.

These and other provisions of the Act are void for being inconsistent with and duplicating the provisions of the Constitution.

Lacunae in Constitutional Code of Conduct Provisions

No provision for enforcement of compliance mechanism in respect of powers granted the Bureau in paragraph 3 (d) Part 1 Schedule 3 of the Constitution.

Providing for a “without prejudice” prosecution contrary to the “double jeopardy” prohibition provision Section 36 (9) of the Constitution. (see par 18 (6) Schedule 5 of the Constitution).

Non-inclusion of coercive powers of the Code of Conduct Tribunal as contained in the Section 25 of the Act.

Disregarding the immunity clause in its power-of-prosecution provisions (see Attorney General of the Federation V. Atiku Abubakar (2007) 8 NWLR (Pt 1035) 117.

Limiting the penalty of vacation of seats only to Legislative Houses members.

Excluding judicial officers from the prohibition from maintaining foreign accounts. The Code of Conduct provision has since then maintained a permanence of some sort, in the 5th schedule of all constitutions following thereafter; 1989, 1993, 1995 and the current 1999 constitution.

Board membership

The CCB comprises the following: A Chairman, and nine other members, each of whom at the time of appointment, shall not be less than fifty years of age and subject to the provisions of section 157 of the constitution, shall vacate his office on attaining the age of seventy years.

Conclusion

In conclusion, there is no doubt that our current legislations on Code of Conduct may need to be strengthened. The focus of any Prospective Legislation on Code of Conduct in the words of Prof. Yemi Osinbajo SAN should address the following areas:

“Conditions for inspection of assets declaration forms of public officers by any Nigerian Citizen Legal Regime for the appointment, promotion, dismissal and general disciplinary control of staff of the Bureau Additional functions of the Bureau in addition to those conferred by the Constitution.

Expansion of the list of public officers prohibited from maintaining foreign accounts Exemption of any cadre of public officers from the provisions of paragraphs 4 & 11 of the Code of Conduct.

Conferring wider powers on the Tribunal to enable it carry out its functions more efficiently Expanding the scope of punishments to be meted by the Tribunal for infraction of the Code of Conduct Enacting rules for the Practice and Procedure of the Tribunal.”

Finally, the jurisprudence in this area is most likely to be enhanced by the judicial pronouncements and outcomes of the ongoing cases in the land now that activities in this area is currently on the rise.

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