Following the trial of Honourable Justice Walter Onnoghen of the Supreme Court of Nigeria, many comments have been flying the waves of the NET in defence of His Lordship and the Rule of Law.
Among all the arguments put forth, there is one which may have an exoneration-effect, and the same can be found in Section 3 of the Code of Conduct Bureau And Tribunal Act, 2004, made pursuant to the power of the National Assembly to make laws with respect to the powers of the body.
The said section provides for a proviso which seems to look like a shield in the face of a looming embarrassment chasing the wheels of the Bench. The section provides as follows:
”3.The functions of the Bureau shall be to-
(a) receive assets declarations by public officers in accordance with the provisions of this Act;
(b) 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;
(c) take and retain custody of such assets declarations; and
(d) 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 proviso is to the effect that where a public officer to whom a complaint has been laid against before the CCB, admits in writing of his breach of such code, the matter will not be taken to the Tribunal.
The proviso looks more like a defence, but just when writers are considering the possibility of using the proviso as an outright-shield, learned counsel, Hameed Jimoh, in an article he wrote concerning the status of the Provision in the face of the 1999 Constitution as amended, argued that the proviso is contrary to the Constitution.
According to the learned writer, the the Constitution has already stated the functions of the CCB, and that, amongst others, the Constitution empowers the CCT to hear complaints with respect to any supposed breach of the Code of Conduct of public officers, therefore, the CCBT Act by providing a proviso despite the express provision of the Constitution amounts to a display of inconsistency. He cited various authorities to support his position.
Jimoh’s position sounds logical. But there are some posers this writer wishes to drop.
At what point can one say that a provision of a law is inconsistent with the provision of the Constitution?
It is clear that the provision in consideration affirmed the power of the CCB to receive complaints; it also affirms the jurisdiction of the CCT to hear trials of possible breach of the code based on reference, but only went further to create an exception which was not stated by the Constitution.
Can one reasonably say that the creation of an exception which wasn’t stated by the Constitution amounts to inconsistency? Can one reasonably argue that where the Constitution empowers the legislature to expand a supposed item or subject matter, and upon the expansion through an enactment, says things the Constitution actually did not say, that the same amounts to inconsistency? Is it not possible to find an exception to a rule outside the Constitution itself?
Would it be out of place to argue that there is only an inconsistency in this regard if the Constitution had said that every complaint must be referred to the Tribunal with or without an admission, and yet the CCBT Act goes ahead to create the proviso despite the express provision of the Constitution?
Or can it still be argued that despite the fact that the Constitution did not expressly say so, in so far an exception was created when the Constitution is silent on it, the proviso is inconsistent?
These are the posers the writer wishes to drop.
Away from that, the writer wishes to consider the weight of the proviso for a possible defence for the CJN.
For clarification, some salient points are itemized:
1. Complaints may be received by the CCB.
2. Investigation are to be Conducted by the Bureau. By S. 3 (d) of the CCBT Act, the Bureau may decide not to refer the case to CCT.
3. When an admission is made, it will not be referred to the CCT, which means it will end at the Bureau-level.
How does this exception function?
1. The Admission must be in WRITING, and not merely an oral admission.
2. For the admission to be made, it must be at the Bureau-level, in order for it not be referred to the CCT, which means that the indicted officer must have been aware of the complaint to make such admission. This impliedly means that upon receipt of any complaint, and where findings are made, the indicted officer should be notified to be given an opportunity to admit or not. It is upon refusal to admit that the matter will be referred to the CCT. But the provision does not make it expressly mandatory for the door of admission to be opened.
But one wonders how the CJN would have utilized this opportunity when the whole process was fast-tracked.
Again, would the CJN have employed the written admission window upon receiving the Bureau’s findings, when the argument has always been that the CCT is not the proper body to function at first instance? Perhaps, the argument would have been that where the petition is received by the NJC, and subsequently referred to the Bureau, such admission would have been made.
Ebi Robert Writes For TheNigerialawyer (TNL)., Reach him at: Ebi.email@example.com