photo credit : Thisday

Introduction

In a move widely interpreted as motivated by either political desperation or ruthless Machiavellism, the Presidency, through the Attorney-General of the Federation, Abubakar Malami, on Monday, charged the Chief Justice of Nigeria (CJN), Hon. Justice Walter Onnoghen, before the Code of Conduct Tribunal, Abuja allegedly for falsely declaring or failing to declare his assets, contrary to Section 15(2) of the Code of Conduct Bureau and Tribunal Act. The six-odd charges are as follows:

  1. That the CJN failed to submit a written declaration of his assets within 3 months of becoming a Justice of the Supreme Court in June 2005;
  2. That on assuming office as CJN in December 2016, His Lordship failed to declare a US Dollar account which he maintained with Standard Chartered Bank since 2011;
  • That on assuming office as CJN in December 2016, His Lordship failed to declare a Euro Domiciliary account which he maintained with Standard Chartered Bank since 2011;
  1. That on assuming office as CJN in December 2016, His Lordship failed to declare a British Pounds Domiciliary account which he maintained with Standard Chartered Bank since 2011;
  2. That on assuming office as CJN in December 2016, His Lordship failed to declare an e-Saver account which he maintained with Standard Chartered Bank since 2011;
  3. That on assuming office as CJN in December 2016, His Lordship failed to declare a Nigerian Naira account which he maintained with Standard Chartered Bank since 2011

Is there more to the charges than meet the eyes?

The timing of the charges, a few weeks to the Presidential elections next month, has predictably elicited a storm of public reaction, mostly negative. Public perception seems to be that the President has decided to go for broke, thereby confirming a long-held suspicion that he is not altogether comfortable with  Hon. Justice Onnoghen as the head of the judiciary. If this is correct, it is not inconceivable that, as part of a grand strategy, President Buhari’s advisers have reasoned that his re-election might be imperiled by a legal challenge which would culminate in an appeal before an Onnoghen-led Supreme Court. To forestall this, they have probably reasoned that the best way out would be to get the CJN out of the way willy nilly, by forcing him to recuse himself from the panel of the apex court which will handle any such challenge. While this might seem speculative, it is certainly not far-fetched.

I intend to steer well clear of such speculations or even any consideration of the merits or otherwise of the charges against the CJN, as it would be grossly inappropriate to do so, for obvious reasons; the CJN himself admonished all of us against doing that (commenting on matters which are sub judice) almost a year ago to the day. Accordingly, I shall confine myself to a discussion of what I perceive to be the legality or otherwise of the law under which the charges have been laid, namely the Code of Conduct Bureau and Tribunal Act. For reasons which will shortly follow, I believe that they should have been laid under the provisions of the Code of Conduct for Public Officers contained in Schedules Three and Five of the 1999 Constitution.

The Code of Conduct for Public Officers

This is the subject of Section 153, Paragraphs 1 – 4 of the Third Schedule  and the entirety of the Fifth Schedule to the 1999 Constitution. Whist the first establishes the Code of Conduct Bureau, the second sets out the powers of the Bureau, whilst the last contains the Code itself as well as the pwers of the Code of Conduct Tribunal. I believe that a critical study of both the Code of Conduct Bureau and Tribunal Act as well as the aforesaid constitutional provisions will reveal that both sets of provisions are almost identical.

To start with, Section 153(1)(a) of the Constitution which establishes the Bureau is the same as Section 1(1) of the Act; Paragraph 1 of the 3rd Schedule to the Constitution is the same as Section 1(2) of the Act, whilst Section 3 of the Act which sets out the functions of the Bureau is replicated in Paragraph 3 of the 3rd Schedule to the Constitution, with the notable omission of the proviso to Section 3(d) of the former in the latter. This was the subject of much public debate when the Senate President, Dr. Bukola Saraki was charged before the Tribunal a couple of years ago.

Paragraph 4(2) of the Act is similar to Paragraph 3(f) of Part 1 of the Third Schedule to the Constitution which empowers the Bureau to hire and exercise disciplinary control over its staff. Sections 5 to 14, inclusive, of the Act are repeated verbatim in Paragraphs 1 to 10 of Fifth Schedule to the Constitution, whilst Section 15 of the Act, under which the CJN has been charged, is similar to Paragraph 11 of Part 1 of the Fifth Schedule to the Constitution, the only difference being the minimum ages of the unmarried children of public officers, which is 21 years under the Act and 18 years under the Constitution.

Sections 16 and 17 of the Act are similar to Paragraphs 12 and 13 of the 5th Fifth Schedule to the Constitution, with their subject matters given as “allegations of breach of the Code/Act” and “Agents and Nominees”, respectively. Section 18(1) of the Act is similar in content to Paragraph 14(b) of Part 1 of the 5th Schedule titled ‘Exemptions”; however, whilst the former empowers the President to exempt any cadre of public officers from its provisions, the Constitution confers that power on the National Assembly, but only in respect of Paragraphs 4 and 11 of the Code. In addition, Paragraph 14(a) of the 5th Schedule exempts legislators from the provisions of Paragraph 4 of the Code.

Sections 20 to 23 inclusive of the Act are similar to Paragraphs 15 to 18 of Part 1 of the 5th Schedule to the Constitution titled “Establishment of the Code of Conduct Tribunal”, “Staff”, “Tenure of office of Chairman and members” and “Powers of the Tribunal”, respectively. A notable omission from the Constitution are the provisions of Sections 24 and 25 of the Act are titled “Rules of Procedure and Institution of Proceedings” and “Power to Issue Search Warrants”, respectively.

Notwithstanding this, I believe that to the extent that both the Act and the Constitution cover virtually the same ground as far as a Code of Conduct for Public Officers is concerned, the Constitution is deemed to have covered the field. Accordingly, the provisions of the Act can no longer be used to charge a public officer such as the CJN for any alleged violation of the Code. This principle was reiterated by the apex court in ATTORNEY-GENERAL OF ABIA STATE vs. ATTORNEY-GENERAL OF THE FEDERATION (1002) 6 NWLR pg. 264 @ 369, where the court opined thus:

“The doctrine of covering the field can conveniently be extended to apply to a situation where the Constitution has covered  the field vis-à-vis a Federal or State legislation. Such legislation is not void simpliciter, but will be inoperative in view of the provisions of the Constitution. However, if the legislation is inconsistent with the provisions of the Constitution, then the legislation is void to the extent of the inconsistency”

The apex court further held in the same decision that:

“Where the provision of the Act is within the legislative powers of the National Assembly, but the Constitution is found to have already made the same or similar provisions, then the new provision will be regarded as invalid for duplication and/or inconsistency and therefore inoperative. The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision will be treated as unconstitutional and therefore null and void”.

Conclusion

As previously advised, the foregoing commentary is limited by the rule against discussing the merits of a pending litigation. But for that, certain moral judgments ought to have been made. Be that as it may, the State ought to take note of the remarks of the apex court on the impropriety of taking cognizance of, and even acting under a statute which is either inoperative or is outrightly inconsistent with relevant provisions of the Constitution on the ground  that the Constitution has already covered that legislative field. Needless to say, any such action or proceedings will be an exercise in futility.

On a parting note, those agitated by the unprecedented spectacle of an incumbent CJN  facing a criminal or even quasi-criminal trial should calm down. To the extent that the heads of the Executive (the President/Vice- President, State Governors and their Deputies) enjoy constitutional immunity from such proceedings, a good case can be made for amending the Constitution to extend that cover to not only the CJN, but the heads of the Legislature as well. After all, what is good for the goose ought to be sauce for the gander.

Abubakar D. Sani, Esq.

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