News that the Court of Appeal has affirmed the decision of the High Court of the FCT to invalidate Sections 53 and 60 of the Corrupt Practices and other Related Offences Act has, once again, brought to the fore the relationship between the Constitution and that law. It will be recalled that Hon. Justice Jude Okeke had struck down both provisions on the ground that they violated the presumption of innocence under Section 36(5) of the 1999 Constitution.
That pronouncement was made last year when the learned trial judge threw out the charge of bribery against Hon. Justice Adeniyi Ademola (now retired, but formerly of the Federal High Court), his wife and Barrister Joe Agi, SAN. In dismissing the appeal against that decision last week, the Court of Appeal held that in the absence of a substantive ground of appeal against that finding, it “subsists forever until set aside by a higher court.” Notwithstanding the outcome of the appeal, I believe that it is worthwhile to take a retrospective look at the decision of the trial court.
In doing that, I shall strive to answer the following questions: is the constitutional presumption of innocence absolute? Can it be derogated from where the Constitution itself imposes on an accused person the burden of proving particular facts? What, if any, are those circumstances? This inquiry necessarily calls or a critical examination of the relevant provisions of both the Constitution and the ICPC Act. Did Hon. Justice Jude Okeke interpret them properly? I intend to start by analysing the relevant statutes.
Section 53 of the ICPC Act
This provision is in four parts. Given their importance, I will set them out in full, thus:
- “where in any proceedings against any person for an offence under Sections 8 to 19 it is proved that any gratification has been accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be solicited, or given, promised or offered by or to the accused, the gratification shall be presumed to have been corruptly accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be solicited or given, promised or offered as an inducement or a reward for or an account of the maters set out in the particulars of the offence, until the contrary is proved”;
- “where in any proceedings against any person for an offence under this Act or any other law prohibiting corruption, it is proved that such person has accepted or agreed to accept, obtained or attempted to obtain any gratification, such person shall be presumed to have done so as a motive or reward for the matters set out in the particulars of the offence until the contrary is proved”;
- “where in any proceedings against any person for an offence under this Act or any other law prohibiting corruption, it is proved that such person has accepted or attempted to obtain any valuable thing without consideration or for a consideration which he knows to be inadequate, such person shall be presumed to have done so with such knowledge as to the circumstances set out in the particulars of the offence, until the contrary is proved”;
- “where in any proceedings against any person for an offence under the Customs and Excise Act, it is proved that any officer of Customs or other person duly employed for the prevention of smuggling has accepted or attempted to obtain any bribe, gratuity, recompense or reward, such officer or person shall be presumed to have done so for such neglect or non-performance of his duty as set out in the particulars of the offence until the contrary is proved”
For it’s part, Section 60 of the ICPC Act provides that: “in any proceedings under this Act, evidence shall not be admissible to show that any such gratification mentioned in this act is customary in any profession trade, vocation or calling or on a social occasion”
As for Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, it provides thus: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts”.
It is trite that in interpreting the provisions of any statute or the Constitution, the objective is to discover the intention of the law-maker, as expressed in the statute/Constitution. The intention, and therefore, the meaning of the instrument statute or Constitution, is primarily to be sought in the words used therein. If they are plain and unambiguous, they must be applied as they stand: GOMWALK vs. OKWOSA (1999) 1 NWLR pt. 586 pg. 216 @ 239. As a corollary, the Supreme Court has held repeatedly that not only should the Constitution be interpreted liberally and broadly, it should be read as a whole, in that related provisions should be construed together. See BRONIK MOTORS vs. WEMA BANK (1983) NSCC 226 and TUKUR vs. GOVT. OF GONGOLA STATE (1988) IS.C. 95.
To my mind, the question is really one of the correct interpretation of the proviso to Section 36(5) of the Constitution. Are the provisions of Section 53 of the ICPC Act within the contemplation of the proviso? Do they impose on an accused person “the burden of proving particular facts”? That is the question. I believe that if the proviso to Section 36(5) of the Constitution is interpreted liberally – as it should be – the answer is obvious: that, in as much as the prosecution bears burden of proving the guilt of an accused person beyond reasonable doubt, however, to the extent that any law imposes the burden of proving specific facts on him or her (such as Section 53 of the ICPC Act), such a law does not, ipso facto, violate his presumption of innocence.
I believe that this view is buttressed by comparable provisions in Paragraphs 6(1) and (2) of the Code of Conduct for Public Officers contained in Part 1 of the Fifth schedule to the 1999 Constitution as follows: –
6(1): “a public officer shall not ask for or accept property or benefits or any kind for himself or any other person on account of anything done or omitted to be done by him in the discharge of his duties”;
6(2): “for the purposes of sub-paragraph (1) of this Paragraph, the receipt by a public officer of any gifts or benefits from commercial firms, business enterprises or persons who have contracts with the government shall be presumed to have been received in contravention of the said sub-paragraph unless the contrary is proved.”
The question here is, if the argument that Section 53 of the ICPC Act violates the constitutional presumption of innocence is valid, are the aforesaid provisions of the Code of Conduct for Public Officers also invalid for the same reason?. This cannot be, of course, as the Supreme Court has held that all the provisions of the Constitution are co-equal and no provision is superior to the other: INEC vs. BALARABE MUSA (2003) 1 SCM 62
Section 60 of the ICPC Act
It can be recalled that this provision bars a person charged under the Act from giving evidence that any gratification which it prohibits “is customary in any profession, trade, vocation, calling or on a social occasion.” By contrast, a similar provision in Paragraph 6(3) of the Code of Conduct for Public Officers in the Constitution expressly permits gifts to public officers in those circumstances, in these words: “A public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on occasions as are recognized by custom; provided that any gift or donation to a pubic officer on any public or ceremonial occasion shall be treated as a gift to the appropriate institution represented by the public officer, and accordingly, the mere acceptance or receipt of any such gift shall not be treated as a contravention of this provision.” That being then case, it follows that if the Constitution itself permits a public officer to accept gifts in certain circumstances, the restriction which Section 60 of the ICPC Act places on evidence of such circumstances is untenable.
It can be seen that Justice Okeke’s decision that Section 53 of the ICPC Act violates the presumption of innocence under Section 36(5) of the Constitution is irreconcilable with Paragraph 6(1) & (2) of the Code of Conduct for Public Officers under the same Constitution. I believe that to accept it would be to recognize two sets of rules in relation to the presumption of innocence – one for public officers under the Constitution and another under the general law. Such a suggestion is clearly illegitimate, as it would violate not only the right to equal protection of the law under Article 3(2) of the African Charter, but the right to freedom from discrimination under Section 42(1) of the Constitution.
Abubakar D. Sani, Esq, writes from Kano.