LAST Thursday, when the Code of Conduct Tribunal (CCT) ordered the Senate President, Dr. Bukola Saraki, to appear before it over allegations of false declaration of assets leveled against him by the Code of Conduct Bureau (CCB), his legal team approached a Federal High Court, Abuja, for an interlocutory order seeking to stop his arraignment. Rather than granting the order, the court asked that the respondent (CCT) be put on notice and appear before the court to give reasons why it should not be granted.
However, when the tribunal reconvened last Friday, there were expectations in some quarters that it would take judicial notice of the proceedings at the Federal High Court as argued by Saraki’s counsel, Mr. J.B. Daudu SAN, instead it issued a bench warrant against the Senate President and ordered that he should be produced before it last Monday.
The Court of Appeal also refused to grant Saraki’s prayer to stop the trial at the tribunal. Since the issue began, legal opinions are however divided on whether the Federal High Court and Code of Conduct Tribunal have coordinate jurisdiction or one is superior to the other.
While Section 6 of the 1999 Constitution of Federal Republic of Nigeria (as amended) vests judicial power on the courts, the CCT derives its own existence from the Fifth Schedule, Part I, paragraph 15 of same Constitution. According to Section 6 of the Constitution: “The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”
Section 251 (3) states the jurisdiction of the Federal High Court thus: “The Federal High Court shall have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section.” Fifth Schedule, Part I, Paragraph 15 of the Constitution provides that: “There shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons. The Chairman shall be a person who has held or is qualified to hold office as a Judge of a Court of record in Nigeria and shall receive such remuneration as may be prescribed by law.”
Paragraph 18 specifies the punishment for any contravention. It reads: “Where the Code of Conduct Tribunal finds a public officer guilty of contravention of any of the provisions of this Code it shall impose upon that officer any of the punishments specified under sub-paragraph (2) of this paragraph and such other punishment as may be prescribed by the National Assembly.
“(2) The punishment which the Code of Conduct Tribunal may impose shall include any of the following: (a) vacation of office or seat in any legislative house, as the case may be; (b) disqualification from membership of a legislative house and from the holding of any public office for a period not exceeding ten years; and (c) seizure and forfeiture to the State of any property acquired in abuse or corruption of office. (3) The sanctions mentioned in sub-paragraph (2) hereof shall be without prejudice to the penalties that may be imposed by any law where the conduct is also a criminal offence.”
Paragraph 4 provides the right of appeal, saying: “Where the Code of Conduct Tribunal gives a decision as to whether or not a person is guilty of a contravention of any of the provisions of this Code, an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Court of Appeal at the instance of any party to the proceedings.”
Vanguard Law and Human Rights spoke to lawyers on the controversy. A Constitutional law lecturer in Lagos State University, LASU, Dr. Niyi Adeleke, said: “There is no clear jurisprudence about the superiority of the Code of Conduct Tribunal to the High Court.
Judgment of the court
The instrument for the establishment of the tribunal can be found in paragraph 15 of the 5th Schedule of the 1999 constitution. “It is to be noted that whatever punishment arising from the judgement of the high court, the court of appeal and even the supreme court of Nigeria is subject to section 175 of constitution. By implication, such a person to be punished by these courts may be pardoned by the president, if it is a federal offence or coming from the federal high court and if it is state offences, such person can be pardoned by the state governor.
“However, anybody convicted by the Code of Conduct tribunal cannot be pardon by the state governor, even if the tribunal sits in a state, except by the President of the Federal Republic of Nigeria subject to the approval of the two third majority of the two Houses of the National Assembly. “Also, appeals from the state high courts or the federal high courts go to the court of appeal, while the same appeals from the code of conduct tribunal go to the court of appeal. So, if we are talking on the power of the tribunal on appeal and that of the high court, both end at the appellate court.
“If somebody is to serve as a member or chairman of the code of conduct tribunal, he is expected to retire at age 70, and he is entitled to his salary till he dies as applicable to the federal high court. So how can you say the high court is superior to the tribunal?
“In terms of punishment for the tribunal chairman if he commits any offence, he can only be removed from office in accordance with the provision of the code in paragraph 17, which states that the chairman of the tribunal will only be removed by the president, and if it is the state or federal high court, it is the state governor or the president that can remove them respectively.
The chairman of the code cannot be removed only by the president and this must be based on an address supported by two third majority of each house of the national assembly which must support the removal. This makes it difficult. He can only be removed on two reasons which is based on misconduct or disability of body or mind.
“Also, the tribunal can bar any member of legislative house from holding public office for a period of ten years. For example, if Senator Saraki is found guilty, it may prevent him from holding public office as well as seizing his assets. I am in the academic and look at the issue of law in wide and in-depth manner. The jurisdiction of the tribunal is limited to what is contained in the code of tribunal Act and it is also streamlined to take charge of public officers alone.
“The tribunal cannot also interpret the constitution like the other courts of record. With the above, there is no doubt that the Code of Conduct Tribunal is a court of superior record, its jurisdiction is not to be subjected to the high court.
A senior lawyer, Chief Morah Ekwunoh, on his part, explained: “Certainly, the Federal High Court, as a superior court of record established under section 6(5) of the 1999 Constitution(as amended) has crystal clear and unmistakable jurisdictional superiority over and above the Code of Conduct Tribunal, an inferior court of record, by virtue of which superiority it is empowered to exercise supervisory jurisdiction over the Tribunal, as being witnessed in the Senate President Bukola Saraki’s imbroglio- by ways of certiorari quashing its rulings, orders or judgments, among others; or by way of outright prohibition, or by way of order of mandamus.
“The superiority of the Federal High Court, as aforesaid, can be clearly discerned from, inter alia, the much lowered constitutional designation of the Tribunal’s Chairman and members, in terms of qualification for appointment, official appellation, nature of oath subscribable by them, and longitude and latitude of jurisdiction.
“This clear and unmistakable superiority of power and jurisdiction of the Federal High Court over and above the Code of Conduct Tribunal, obviously, gave impetus to the clarification letter dated May 18, 2015, by the Chief Justice of Nigeria to the present Chairman of the Tribunal, Hon. Danladi Y. Umar clearly drawing red-line which must not be crossed, under assumed parity of jurisdiction with the Federal High Court.
“With the above powers of judicial review of actions of the Tribunal, it shocks, to bone -marrow, that the Code of Conduct Tribunal, in Senator Saraki’s case was conducting its proceedings, despite the Federal High Court’s order, as if it had equal or coordinate jurisdiction with the said Federal High Court which issued the order.
“To proceed in the manner done by it violently violates the legal classicus in GOVERNOR OF LAGOS STATE VS CHIEF OJUKWU (1986) 1NWLR(PT 15), wherein the Supreme Court warned, inter alia, that when a matter is before a court of law, parties are bound to maintain the status quo, whether or not the court has given specific injunctive order, pending the hearing and determination of the suit.
“The above sad and unhealthy manner of pursuit of this case, which arose over twelve years ago, presents itself as a classical political synthesis of voice of Jacob, hand of Esau, which not only damages the acclaimed anti-corruption image of the President, but calls for strictures on the members of the Tribunal.
“Particulars of the high-wire political timing and circumstances, as aforesaid, include, but are not limited to,(1) the arraignment coming after, and not before June 9, assumed presidency of the 8th Senate in circumstances bitterly and unforgivably opposed, till date, by well- oiled and highly connected movers and shakers within, and outside, the epicenter of federal power, who had repeatedly and openly vowed and sworn to remove him therefrom, by hook or crook, before end of September, and before imminent senatorial approval of ministerial list;
(2) the arraignment being preceded, in July, by the arrest and detention of his wife,Toyin Saraki, for alleged money laundering offences;(3) conduct of very few, twice or thrice, plenary sessions of the Senate since inauguration, owing to determination of the holders, movers and shakers of levers of federal power to render sterile his senate leadership; and(4) unleashment, on him, of avalanche of relentless vilification, as carried out through litigation, and the mass and social media with the sole intent and purpose of completely undermining and under-cutting his leadership of the Senate.
“No doubt, and from strict legal prism or periscope, the Code of Conduct, EFCC or, even, the police, can arrest, detain and, as in this case, arraign for infractions on our criminal and related laws, and Dr Bukola Saraki, though the Senate President is no exception in this respect, particularly as his office does not have immunity appurtunant thereto, and there is no time limitation for criminal prosecution. Discharge of mandatory burden and onus of proof beyond all reasonable doubt, as required by law, as to bring into being its passage through legal wicket, is a different kettle of fish, entirely.
Different kettle of fish
“However, high-wire political and other extenuating circumstances characterising same, as posited above, coupled with it touching and concerning arraignment, in 2015, for alleged criminal infractions spanning between 2003 and 2011, when he held sway as the Governor of Kwara State, leave the arraignment as being nothing but synthetic smokescreen of voice of Jacob, hand of Esau, which does not confer respect, credibility and efficacy to the acclaimed anti-corruption crusade of President Muhammadu Buhari.”
Mr. Wahab Shittu, another law lecturer at the University of Lagos, said: “Appeals from Code of Conduct Tribunal, CCT lies to the Court of Appeal. This means only the Court of Appeal has appellate and by extension supervisory jurisdiction over the CCT. While it can be said that the CCT does not have coordinate jurisdiction with the Federal High Court, nevertheless by law and constitutional provisions the Federal High Court cannot monitor CCT or supervise it. This is powers conferred by hierarchy of courts but by the constitution.”