In the recent time, there has existed an argument among some lawyers as to the effect of the provisions of section 3 of the Code of Conduct Bureau and Tribunal Act, 2004-herein after referred to as the CCBTA-, especially its proviso.

Those lawyers are of the view that just like the proviso has already provided that ‘Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary’, then, where the person has made an admission for instance, of none-declaration of his assets or false declaration as a public officer subject to the Code of Conducts for Public Officers, then, the Code of Conduct Bureau-herein after referred to as the CCB- is not expected or required to refer such a person to the Code of Conduct Tribunal-herein after referred to as the CCT. I took my time to consider the provisions of this CCBTA especially its proviso and I am also aware that the said section 3 of the CCBTA provides for the functions of the CCB. I am also aware that the Constitution too provides for the functions of the CCB. This paper is an attempt at considering the status of this proviso in section 3 of the CCBTA in the face of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution.

First and foremost, the Constitution has provided for the powers of the CCB as follows ‘3. The Bureau shall have power to— (a) receive declarations by public officers made under paragraph 12 of Part I of the Fifth Schedule to this Constitution ; (b) examine the declarations in accordance with the requirements of the Code of Conduct of any law; (c) retain custody of such declarations 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 disciplinary control over the 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.’. Then the CCBTA too provides in section 3 though with a proviso thus ‘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.’. (Underlined words are mine for emphasis).

From the above provisions of the Constitution and the CCBTA, some certain observations as follows are clear to me:

  1. The proviso in the section 3 of the CCTA is not included in the provisions of the paragraph 3, Part I of the 3rd Schedule to the Constitution;
  2. The CCBTA was made pursuant to an Act of the National Assembly;

Therefore, it is my humble submission that considering the decision of the Supreme Court of Nigeria which held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26 thus: ‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’ and as was also held in Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475, where the court held thus: ‘The provisions of an ordinary statute would not render nugatory the relevant provisions of the constitution’, I am of the humble and firm submission that the said proviso in section 3 of the CCTA is inconsistent with the provisions of the Constitution on the functions/powers of the CCB. Most importantly observable is that both the Constitution and the CCBTA share the same provisions on the subject matter of the functions/powers of the CCB except that the Constitution does not provide for the proviso which the CCBTA has added to itself, thereby being inconsistent with the Constitution. It is a trite law that the Constitution is the supreme law of Nigeria. This is what section 1 of the Constitution provides thus ‘(1) ‘This Constitution is supreme and its provisions shall have binding Force on all authorities and persons throughout the Federal Republic of Nigeria. (3) If any other 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’. From this section 1 of the Constitution, it is submitted that the provisions of the CCBTA is subject to the supremacy of the Constitution. (Underlined words are mine for emphasis). More so, in the case of N.D.I.C. v. O Silvawax Intl. Ltd [2006] 7 NWLR (Pt.980) Pg.588, the purport of a proviso in a provision of law was held to the effect that ‘A proviso in a provision of a law is a clause of exception or qualification. It speaks the last intention of a legislature in a statute. A section of an Act that contains a proviso must be construed as a whole, each part throwing light on the rest. Also see the case of: NIPOST v. Adepoju (2003) 5 NWLR (Pt. 813)224.” Per ADEKEYE, J.C.A. (P.27, Paras.E-F).

Also, by paragraph 11(2) of the Fifth Schedule to the Constitution, false declaration or misconduct is a breach of the Code of Conduct. The said paragraph 11(3) provides thus ‘11.—(1) Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter— (2) Any statement in such declaration that is found to be false by any authority or person authorised in that behalf to verify it shall be deemed to be a breach of this Code.’. So, it is my humble submission that where there is an allegation of misconduct bothering on the Code of Conducts under the Constitution, the CCB has the constitutional right or power and is justified relying on the Constitution, to refer such public officer to the CCT while utilizing its independence under section 158(1) of the Constitution without recourse to any person or authority.

Furthermore, I humbly submit that the ‘blue pencil’ rule shall be applied to the inconsistent parts and or portions of the CCBTA i.e. the proviso to bring it into conformity with the provisions of the paragraph 3 of the Part I of the 3rd Schedule to the Constitution. This was also the decision of the Supreme Court of Nigeria on the ‘blue pencil Rule’ in the case of A.G. Ondo State v A.G. Federation (2002) 9 NWLR (Pt.772) page 722. SC., where the Court held as follows: ‘where only some portions of a legislation are unconstitutional or bad and the rest is not affected, so that the good can be severed from the bad, the court would not invalidate the whole of the Act, but apply the blue pencil rule to strike out the portions affected.’ This is the doctrine of ‘Blue Pencil Rule’.

Finally and without prejudice to the above submissions made in this paper, I humbly submit that:

  1. The proviso to the section 3 of the CCBTA is inconsistent with the provisions of the Constitution and shall to such inconsistency, be invalid, null and void and of no effect;
  2. The CCB cannot rely on the proviso in the said section 3 of the CCBA, even where the suspect has admitted the breach of the Code of Conducts in writing, he must be referred to the CCT by the CCB;
  3. Where there is an allegation of misconduct bothering on the Code of Conducts under the Constitution against any public officer, the CCB has the constitutional right or power to refer such public officer to the CCT while utilizing its independence under section 158(1) of the Constitution without recourse to any person or authority;
  4. Admission in writing or orally, of the allegation of breach under the Code of Conduct does not absolve the suspect from prosecution by the CCB through the CCT.
  5. The National Assembly lacks the power to add the proviso to the CCBTA rather, what the Constitution empowered it to do is to confer additional functions upon the CCB which does not mean the same as adding the proviso to the CCBTA.

e-mail: hameed_ajibola@yahoo.com

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