*Unmasking the Confusion and contradiction(s) of the Nigerian Constitution in that regard

By O G. Chukkol

Preamble

On Thursday 31st March, 2021 the Chairman of the Code of Conduct Tribunal, Danladi Umar, was caught on camera physically assaulting a security guard at Banex Plaza in Wuse, Abuja. In a five-minute video that has gone viral online, Mr Danlandi was seen slapping and kicking the security guard, while police officers suspected to be attached to him were trying to restrain him from attacking the guard.

Reactions from lawyers have trailed the above incidence with others calling on the National Judicial Council, NJC, to suspend Umar. It should be noted that NJC exercises supervisory power on judicial officers only. See part one paragraph 21 (a) and (b) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended)

This question becomes paramount: is Umar a judicial officer?

Legal Analysis

By Section 318 of the constitution, “Judicial office” means the office of Chief Justice of Nigeria or a Justice  of the Supreme Court, the President or Justice of the Court of Appeal, the  office of the Chief Judge or a Judge of the Federal  High Court, the office of the Chief Judge or Judge of the High Court of the  Federal Capital Territory, Abuja, the office of the Chief Judge of a State and Judge of the High Court of a State, a Grand Kadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, a President or Judge of the Customary Court of Appeal; of the Federal Capital Territory, Abuja, a Grand  Kadi or Kadi of the Sharia Court of Appeal of a State;

The section adds that “a reference to a ‘judicial officer’ is a reference to the holder of any such office”.

The office of the CCT Chairman is obviously missing in the above list and the implication is that Umar is not a judicial officer based on the rule of interpretation that the express mention of one thing is the exclusion of the other not mentioned; what is not included in a statute is not to be read into it. see Michael v. Odu’a Investment Company Ltd (2017) LPELR-42429(CA). That is to say, If the framers of the constitution had wanted to make CCT Chairman a judicial officer, they would have clearly mentioned it or simply included CCT Chairman in the offices listed in section 318 of the constitution.

Now here comes a lacuna, or rather, a confusion, in the Nigerian constitution – paragraph 13 (b) of Part One of the Third Schedule to the Constitution states that the Federal Judicial Service Commission may recommend to the National Judicial Council, the removal from office of a number of judicial officers including the chairman and members of the CCT. However, paragraph 21 (a) and (b) of the same Third Schedule omits the CCT chairman and members from the list of persons that the National Judicial Council should recommend their removal or suspension to the President or exercise disciplinary control over.

One would have thought that the name of the CCT Chairman was mistakenly omitted in paragraph 21 of the third schedule. Can we also say that the omission of the name of the CCT chairman in section 318 is a mistake?

One becomes lost as to why exactly FJSC is empowered to recommend the removal of CCT Chairman to NJC and yet the constitution becomes quiet as to what exactly the NJC should do with the name after receiving same from FJSC. Does it then mean that the NJC can at that stage remove or exercise any other supervisory power over CCT Chairman? The constitution is silent on that. But it appears that NJC cannot remove or discipline CCT Chairman by dint of section 22 (3) of the Code of Conduct Bureau and Tribunal Act which provides as follows:

“A person holding the office of Chairman or member of the Code of Conduct Tribunal shall not be removed from his office or appointment by the President except upon an address supported by two-thirds majority of each House of the National Assembly praying that he be so removed for inability to discharge the functions of the office in question (whether arising from infirmity of mind or body) or for misconduct or for contravention of this Code. A person holding the office of Chairman or member of the Code of Conduct Tribunal shall not be removed from office before retiring age save in accordance with the provisions of this Code”.

It follows therefore that the person to remove or suspend the CCT Chairman is the Nigerian President whose address must be supported “by two‐thirds majority of each House of the National Assembly”. He can suspend the CCT Chairman because irrespective of the fact that suspension was not mentioned either in the constitution or the CCBT Act, such power exists by operation of section 11(1)(b) of the Interpretation Act which provides that “where an enactment confers a power to appoint a person either to an office  or to exercise any  functions, whether for a specified period or not,  the power includes−…(b)  power to remove or suspend him”.

The implication of the foregoing is that the CCT Chairman cannot be removed or suspended by the NJC. The position would not have been the same if the constitution had not omitted the CCT in section 318 of the constitution and paragraph 21 of the third schedule thereto. In such instance, the CCBT Act would have been deemed to be inconsistent with the provisions of the constitution and thus, void.

Having said that, it is observed that the CCT is clothed with enormous powers to punish for the contravention of the Code of Conduct. Why its Chairman and other members are not under the disciplinary oversight and purview of the NJC is still a mystery.

It is hereby recommended that the Constitution be amended  so that the CCT chairman and other members shall henceforth be brought under the disciplinary purview of the NJC and  be designated as judicial officers as well. This will bring it in conformity with Third Schedule Part 1, paragraph 13 of the Constitution which gives the Federal Judicial Service Commission power to advise the NJC on removal of the chairman and members of the CCT.

O. G. Chukkol is a final year student, Faculty of Law, ABU, Zaria and may be reached via oliverchukkol@gmail.com or 08032470318

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