The Code of Conduct Bureau and Tribunal Act has received a great deal of scrutiny in the past two weeks with the filing of charges against the Chief Justice of Nigeria Mr. Walter Onnoghen for alleged breaches of provisions of the Act.
I have argued that the Act itself provides a complete defence under the conditions adumbrated in the proviso to Section 3(d) of the CCBT Act.
A contrary opinion is that that proviso is unconstitutional because the 3rd and 5th Schedules to the Constitution which re-establishes the Code of Conduct Bureau and Tribunal, respectively, does not contain the said proviso.
It would seem that the argument is misconceived. And here are the reasons why.
Those who argue that the proviso is unconstitutional rely alleged inconsistency with paragraph 3 of Part 1 of the Third Schedule to the 1999 Constitution.
I reproduce it in full here,
- The Bureau shall have power to –
(a) receive declarations by public officers made under paragraph 12 of Part of the Fifth Schedule to this Constitution
(b) examine declarations in accordance with the requirements of the Code of Conduct or any law
(c) retain custody of such declarations in and make them available for inspection by any citizen of Nigeria on such terms and conditions as the National Assembly may prescribe
(d) ensure compliance with and, where appropriate enforce the provisions of the Code of Conduct or any law relating thereto;
(e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal;
(f) appoint, promote, dismiss and exercise control over staff of the Code of Conduct Bureau in accordance with the provisions of an Act of the National Assembly enacted in that behalf; and
(g) carry out such other functions as may be conferred upon it by the National Assembly.
I agree with the Supremacy Clause of the Constitution. See section 1(1) of the 1999 Constitution. I also agree with the Inconsistency Principle of the Constitution as enshrined in Section 1(3) of the 1999 Constitution which reads,
“If any law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void. “
Before examining the proviso to Section 3(d) of the CCBT Act for inconsistency, if any, let us examine the provisions of Paragraph 3 of the First Part of the Third Schedule to the Constitution, which I have reproduced above.
First you would notice that sub-paragraphs b, c, d and e of paragraph 3 all use a peculiar phrase ‘provisions or requirements of Code of Conduct or any law’ – that is what we lawyers call incorporation by reference. When you refer to a second document in another document, the provisions of the second document are incorporated or added into the first, subject to what the latter documents says.
Thus in sub-paragraph e which gives the Code of Conduct Bureau power to refer breaches or non-compliance to the Code of Conduct Tribunal, the Constitution says the Bureau is “to receive complaints, investigate the complaints and WHERE APPROPRIATE, refer such matters to the Code of Conduct Tribunal.”
‘Where appropriate’ simply means there are instances where it is not appropriate to refer complaints to the Tribunal. Or can you think of any definition of ‘where appropriate’ which means ‘in all circumstances?
So the Constitution already impliedly or expressly provides that there can be situations where it would not be appropriate to refer cases to the Code of Conduct Tribunal.
It would thus do violence to the Constitution to argue that there are no cases where it would be inappropriate to refer cases investigated by the Code of Conduct Bureau to the Tribunal.
In case I am wrong let us refer to a few principles of Constitutional interpretation. In ATTORNEY GENERAL BENDEL STATE v ATTORNEY GENERAL FEDERATION & 22 ORS (1981) 10 S.C. 1, at pages 77-78, the Supreme Court laid down the rules of interpretation of the Constitution when it said,
“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind.
- Effect should be given to every word.
- A constitutional power cannot be used by way of condition to attain unconstitutional result.
- The language of the Constitution where clear and unambiguous must be given it plain evident meaning.
- The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dis-severed from the rest of the Constitution.
- While language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.
- A constitutional provision should not be construed to defeat its evident purpose.
- Under a constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
- Delegation by the National Assembly of its essential legislative functions is precluded by the Constitution.
- The principles upon which the Constituion was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
- Words of the Constitution are therefore not be read with stultifying narrowness.”
Obaseki, JSC (of blessed memory) went on to say “Courts, it must be emphasized, cannot amend the Constitution. They cannot change the words. They must accept the words, and so far as they introduce change, it can come only through their interpretation of the meaning of the words which change with the passage of time and age.”
So, if the courts cannot change the words of the Constitution, we cannot change the words either.
In this case the words I refer to are, “where appropriate.” The ordinary meaning of a word is usually what the dictionary gives us. The Oxford Advanced Learner’s Dictionary says appropriate means, “suitable, acceptable or correct for the particular circumstances.” Of course, that means what may be suitable in some circumstances would not be suitable, correct or acceptable in other circumstances.
We have thus established that constitutionally, it is not in every case that the Bureau is to refer cases it has investigated to the Tribunal.
The question that remains to be answered is how do we know when the Bureau is not to refer cases of non-compliance or breach to the Tribunal.
The Constitution gives us the answer. Sub-paragraph 3(e) of Part 1 of the 3rd Schedule says, the Bureau shall have power to receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal.
The complaints which can be referred to the Code of Conduct Tribunal are those which are in “non compliance with or [in] breach of the provisions of the Code of Conduct [in the Constitution] or any law in relation thereto.”
As stated above this device in law is called incorporation by reference. ‘Any law in relation thereto’ clearly includes the Code of Conduct Bureau and Tribunal Act.
THE INCONSISTENCY TEST
So is the proviso to the Section 3(d) of the CCBT Act inconsistent with the provisions of paragraph 3 of Part 1 of the Third Schedule to the 1999 Constitution?
There is no expressed conflict. An expressed conflict or inconsistency is where the Constitution says one thing in express or positive terms and the law says something else in express or positive terms. A good example is paragraph 11 (1) of Part 1 of the Fifth Schedule to the 1999 Constitution which reads,
11(1) Subject to the provisions of this Constitution, every public officer shall within 3 months after the coming into force of this Code of Conduct or immediately after taking office and thereafter-
- At the end of every four years; and
- At the end of his term of office,
Submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.
Contrast this with Section 15 of the CCBT Act, which provides
15 (1). Every public officer shall, within fifteen months after the coming into force of this Act or immediately after taking office and thereafter –
- At the end of every four years;
- At the end of his term of office; and
- In the case of a serving officer, within 30 days of the receipt of the form from the Bureau or at such other intervals as the Bureau may specify
Submit to the Bureau a written declaration in the Form prescribed in the First Schedule to this Act or, in such form as the Bureau may, from time to time, specify, of all his properties, assets and liabilities and those of his spouse or unmarried children under the age of twenty one years.
Now from the above two passages it would be seen that the cut off age for declaration of assets and liabilities of unmarried children has changed from 21 years in the CCBTA to 18 years in the Fifth Schedule to the 1999 Constitution.
That is a case of express inconsistency. Both provisions cannot stand side by side, so one of them has to go and by virtue of Section 1(3) of the 1999 Constitution, it is provision contained in the CCBTA that must go. So the effective age is now 18 years. Meaning, if you have an unmarried 20 year old child you need not declare his assets and liabilities when you are declaring yours as a public servant.
There is also no implied inconsistency. An implied inconsistency occurs where a provision in a law is omitted in the Constitutional provision. For example, if you look at the above provisions carefully, you would notice that the Constitution omits the word ‘spouse’ in defining the types of assets of family members that should be declared together with that of the public servant. It therefore follows that it is no longer the law that a public servant should declare the assets and liabilities of a wife or husband. But he/she must declare that of an unmarried child below 18 years. This seems unreasonable, but that is what a strict interpretation of the Constitution would yield. Strict interpretation of Constitutions can lead to unreasonable results.
THE CONSISTENCY TEST
There are also two types of consistency. There express consistency, where the legislation repeats the provisions of the Constitution word for word.
And then there is also implied consistency – incorporation by reference. This is where a Constitutional provision incorporates an existing law by positive or specific words, the provisions of that law are thereby preserved.
As required by the rules of Constitutional interpretation above, the words WHERE APPROPRIATE must be given effect. This is the most important rule of Constitutional interpretation. What is the effect of ‘where appropriate?’ The effect is to demarcate the circumstances where it would be appropriate to refer investigated complaints to the Tribunal and where it would not.
The only way to give effect to these two key words is by harking back to the CCBTA again. Where does the CCBTA say it would be inappropriate to refer non compliance to the Tribunal? In the proviso to Section 3(d).
If you refuse to do that you must discard two words from the 1999 Constitution or refuse to give effect to them. By doing so you would be doing violence to the Constitution. Remember the admonition of Hon. Justice Obaseki 39 years ago, the Courts cannot change the words of the Constitution. Neither can you.
For those who argue that the omission of the express words in proviso to 3(d) of the CCBTA automatically renders them inconsistent with the Constitution, note that it makes all non asset declaration strict liability offences.
By that reasoning Hon. Justice Tanko Mohammed who was sworn in on Friday 25th January 2019 by President Buhari as acting Chief Justice of Nigeria and who swore in the Election Tribunal Judges on Saturday 26th January 2019 was in breach of the law and should be removed.
Like all government offices, the Code of Conduct Bureau does not open on Saturdays, however by swearing in members and chairmen of election tribunal panels, Hon. Justice Tanko was performing the functions of the office of the Chief Justice of Nigeria at a time he had not declared his assets as ‘Chief Justice of Nigeria’.
Paragraph 11 (1) of Part 1 of the Fifth Schedule to the 1999 Constitution says “every public officer shall within 3 months after the coming into force of this Code of Conduct or immediately after taking office…” The Code of Conduct under the 1999 Constitution came into force with the rest of the Constitution on May 29th 1999. Thus 3 months after coming into force is August 29th 1999. So, the only other operative part of the schedule is ‘immediately after taking office.’ Thus Justice Tanko Mohammed is in breach of the Constitution. No High Court registry was opened on Saturday or Friday evening for the formalities.
These two instances [omission of the spouse and swearing immediately after taking office] illustrate the dangers and follies of the Strict liability approach to the Code of Conduct.
THE SCHEMATIC APPROACH
As adumbrated in the Supreme Court decision of AG BENDEL v A G FED (above), the Constitution of the Federal Republic of Nigeria is an ORGANIC SCHEME of government to be dealt with as an entirety.
The Schematic Argument simply says that in interpreting a law and more so a Constitution, you look at the scheme or overall plan. A scheme according to the venerable Oxford Advanced Learner’s Dictionary is a system for doing or organizing something. In this case the Code of Conduct provisions of the Constitution are a system for ensuring disclosure of assets of public servants and punishing false declarations.
In order to do so, the Constitution creates two distinct bodies; the Code of Conduct Bureau with powers of investigation but no power of trial and the Code of Conduct Tribunal with powers of trial but not powers of investigation.
The connection between these two bodies is paragraph 3(e) of Part 1 of the Third Schedule to the Constitution or Section 3(d) of the CCBTA. This gives the Bureau power to refer complaints to the Tribunal.
Part 2 of the Fifth Schedule to the Constitution lists all the public officers amenable to the Code of Conduct. This includes powerful political actors like the President, Vice President, President of Senate and deputy, Speaker of the House of Representatives and deputy, Chief Justice of Nigeria, Governors, etc.
But the list goes on to include all members of the armed forces of the federation. All members and staff of the various houses of assemblies of states and the national assembly, all members of the police force and other government security agencies, all persons in the civil services of the state and federation, all officers of Nigerian missions abroad, all members and staff of all local government councils, all members and staff of statutory corporations at all levels, all staff of universities and all tertiary institutions owned by government.
If you put figures to these names, you will have something like 600,000 policemen, 400,000 armed forces, over 1,000,000 civil servants at all levels, etc. so we could be looking at nearly 4 million persons covered by the Code of Conduct provisions.
If you apply the strict interpretation and say they are all to submit their declaration forms ‘immediately after taking office’ as provided by paragraph 11(1) of the 5th Schedule, that means not less than 2 million persons would be guilty of a crime, even if they filled the forms within weeks of taking office.
Surprisingly, given the number of potential suspects, there is only one Code of Conduct Tribunal made up of one Chairman and 2 members for the entire Federation. Compare and contrast paragraph 2 of Part 1 Third Schedule of the Constitution which gives the Bureau power to establish offices in every state of the Federation and paragraph 15(1) of Part 1 Fifth Schedule to the Constitution which provides that the Code of Conduct Tribunal shall consist of a Chairman and two other persons. There is no provision for duplication of the Tribunal across the Federation unlike the Bureau that Constitution expressly mandates to replicate itself in every state, as it thinks fit.
How is this 3 man panel supposed to try 2 million persons?
It is thus clear from the schematic design of the Code of Conduct that there must be cases where it is inappropriate to refer the complaints to the Tribunal.
We submit that on the whole, the proviso to section 3(d) of the CCBTA is clearly constitutional.
All I ask is whoever wishes to argue contrary should at least give effect to two Constitutional words “where appropriate” in paragraph 3(e) of Part 1 of Third Schedule of the Constitution, or let her cease forever.
Emmanuel Jakpa, wrote in from Warri and can be reached at firstname.lastname@example.org.