An Apraisal Of The Proviso To Section 3 (D) Of The Code Of Conduct Bureau And Tribunal Act And The Constitution By U.O Erinle

It is an axiomatic fact that one of the most innate and cancerous problems In Nigeria today is corruption. You will agree with me that  this logjam(corruption) has been the order of the day right from the birth of the giant of Africa and has  become so pandemic that it has dug deep into the fabrics of various institutions in the country- social, economic, political, educational, legal, etc.

Public officers, in fact, are said to be the most vulnerable citizens to the waves of this churlish phenomenon. Thus, this stimulated the enactment of the Code of Conduct Bureau and Tribunal Act (hereinafter referred to as The Act) in 1991 by the Babangida led administration.

The Act is established to provide for the establishment of the code of conduct bureau and tribunal to deal with the complaint of corruption by public servants for the breach of its provision. It aimed to establish and maintain a high standard of public morality in the conduct of government business and to ensure that the actions and behavior of public officers conform to the highest standard of public morality and accountability (see section 2 of The Act). In other to achieve this aim, The Act did not only establish a code of conduct tribunal with the power to hear and determine the breach and non compliance with the The Act (see section 20 and 21 of The Act), but also established a body known as the CODE OF CONDUCT BUREAU.

The functions of this bureau are enumerated under section 3 of the Act but the function which is quite relevant here is section 3(d) which reads thus;

3d) receive complaint about non compliance with or breach of this act and where the Bureau considers it necessary to do so, refer such complaint to the code of conduct tribunal established by Section 20 of the Act in accordance to section to the provision of the section 20 and 25 of this  Act:

Provided that where the person concerned makes a written admission of such breach or non –compliance, no reference shall be necessary.

The Act remains laudable for it houses overwhelming and surmountable provisions. However to what extent can it maintain its laudability? To my  mind, to the extent of it not contravening the provisions of the the supreme law of the  land; the constitution and In this case, The Constitution of the Federal Republic of Nigeria 1999( as altered) (hereinafter referred to as The Constitution) for the constitution is the supreme law of the land and if any law is inconsistent or contravene the provisions of the constitution, such law is liable to scream for survival in the abyss of voidability, nullity and unconstitutionality. See the cases of NURA OCAHALA VS FRN suit No: SC. 728/2013, INEC VS MUSA(2003)3NWLR PT 806 pg 72. Also relevant is section 1 of The Constitution.

Having this in mind, the appraisal of the  proviso to Section 3(d) is compelling. To do this, the pertinent question that begs for answer is worded thus:  IS THE PROVISO TO SECTION 3D TO THE CODE OF CONDUCT TRIBUNAL ACT CONSTITUTIONAL?

By  section 4 of The Constitution, the National Assembly is empowered to make law for peace, order and good government. According to Dr. Sambo A.O.(a lecturer in the Department of Public law, Faculty of Law, University of Ilorin, during a constitutional law class in 2018), the phrase” for the peace order and good government” Is incorporated to express the widest amplitude of the extent of the legislative powers. As wide as this power is however, it is not devoid of circumscription. Thus, One of those limitations can be seen in section 4(8) of The Constitution. The provision is reads;

“save as otherwise provided by this constitution… and accordingly, the National Assembly shall not enact any law, that oust or purport to oust the jurisdiction of a court of law or of a judicial tribunal established by law” ( italics mine)

The import of the above provision is that the National Assembly are restricted from making any law that will expressly or impliedly preclude a court of law or any judicial tribunal established by law from exercising the jurisdiction given to it by  the constitution or law.

Premised on the above, it is my humble opinion that the proviso to section 3(d) of The Act purports to oust the jurisdiction the Code of conduct Tribunal and as such is unconstitutional, null and void. For ease of reference and clarity, I deemed it fit to reproduce the proviso and demystify the the words; oust, purport and jurisdiction.

The proviso reads thus;

Provided that where the person concerned makes a written admission of such breach or non –compliance , NO REFERENCE SHALL NOT BE NECESSARY.( italics mine)

From the stable of Bernard Garner’s BlacksLaw  Dictionary, OUST is defined to mean “ To force ( a person) from a position of power for the purpose of serving as a replacement”. JURISDICTION  is defined  by the same dictionary to mean “the court’s power to decide a case or issue or decree  while PURPORT by the English Dictionary, in its verbatical form, is defined to mean “ TO INTEND”.

Based on the foregoing, it is my humble submission  that this proviso intends to force the tribunal from the power  invested in it by The Act to hear and determine the breach or non-compliance with The Act  by replacing with a written admission. This intention can be discerned from this assumption: let’s  say the person concerned has made a written admission but, the bureau goes further to make reference to the code of conduct tribunal and the person concerned raised the defence that he has already admitted in writing. What is expected of the tribunal?  To strike the case out  for it is not necessary in view of the compellable nature of the proviso even if there it glaring that the person actually breach or did not comply with the code.

Alternatively, it is my view also that the proviso is inconsistent with the provision of the constitution. The reason being that in the case of INEC VS MUSA, the Supreme court was of the view that a law is not only inconsistent with the provision of The Constitution where it goes contrary to it but also if it competes with its provision in an area it has already covered. Thus, on a legal foray through the constitution, particularly the 3^rd schedule to The Constitution; paragraph 3 which exhaustively  enumerate the functions of the CODE OF CONDUCT BUREAU, the paragraph  does not contain what the proviso in question reads despite the fact that it has the provision similar to that of section 3(d). Based on this, the proviso is inconsistent with the provision of the constitution and as such null and void pursuant to section 1(3) of the constitution.

In conclusion, I am of the opinion that the proviso to the section 3(d) of the code of conduct tribunal Act is unconstitutional, null and void for it purports to prevent the code of conduct tribunal from exercising their power to  hear and determine cases relating to the breach or Non compliance with the  Act, when the person who breaches the provision of the Act makes a written admission to that effect.

Written By U.O Erinle, A 300 LEVEL LAW STUDENT OF FACULTY LAW, UNIVERSITY OF ILORIN