“An intention to legislate in contravention of the Constitution should not be imputed to the law-maker. Where an enactment can be construed and can operate as not to be inconsistent with the Constitution, such construction and manner of operation should be preferred to any other construction that would lead to inconsistency”. – Per Ayoola J.S.C in Okeahialam v. Nwamara (2003) 12 NWLR (Pt. 835)597 Section 3(d) of the Code of Conduct Bureau and Tribunal Act, (hereafter CCBT Act) with its proviso, that once a public officer admits in writing his/her non-compliance and breach of the asset declaration requirements of the Constitution and Act, it will no longer be necessary to refer the complaint to the Code of Conduct Tribunal (hereafter CCT) , has lately generated a lot of commentary. Most commentators have concluded that this section and its proviso is unconstitutional based on the doctrine of “covering the field”, a principle in constitutional law that invalidates a subsidiary or inferior law, where a superior law, has covered the same field as the inferior law. The Court of Appeal (hereafter CA) has also adopted this position, in the case of Dr Olubokola Saraki v. FRN CA/A/172C/2016 In the case of FRN v Dr Olubukola Saraki Charge No. CCT/ABJ/01/2015, the defendant raised an objection before the CCT based on this section, asking the CCT to apply the precedent it had established in the case of FRN v. Bola Ahmed Tinubu Charge No. CCT/ABJ/01/11/11, where it upheld the objection of the defendant, that failure to invite him to admit or deny the alleged infraction of the Asset declaration requirements of the Code of Conduct for Public Officers, was a failure to comply with a condition precedent for referring the matter to the CCT. The Tribunal overruled the objection, remarking that the CCT had since the case of FRN v. Emil Lemke Inyang Charge No. CCT/ABJ/02/2012 realized that the decision in FRN v. Bola Ahmed Tinubu (supra), was decided per incuriam in ignorance of paragraph (3)(e) of Part 1 of the Third Schedule to the Constitution, which is the guiding law on the subject matter. The Senate President’s appeal to the CA on that point was unsuccessful as the CA upheld the decision of the Tribunal. The Senate President did not appeal further on that point to the Supreme Court (hereafter SC) and as such the apex Court did not have an opportunity to examine this question in the light of its copious pronouncements on the proper application of the doctrine of “covering the field” The pressing need for this comment on the question of the validity of this impugned section, is the implication of the invalidity of the section that the National Assembly (hereafter NA) cannot amend this provision of the CCBT Act without amending the Constitution. To the best of my knowledge, there have been three attempts so far to amend the CCBT Act, with each amendment affecting the said section 3(d). Two of these proposed amendments were in 2009, sponsored by Senators Smart Adeyemi and Patricia Naomi Akwashiki, while the last one was sponsored by Senator Nwaoboshi in 2016. The proposed 2016 amendment sparked off so much public outrage as it was perceived in many quarters as a ploy to shield the Senate President from the CCT trial. A letter written to the speaker, Honorable Yakubu Dogara by the learned senior advocate Femi Falana, highlighted this position that the said section of the CCBT Act was inoperative and cannot be validly amended without first amending the constitution. Some NGOs even petitioned the United Nations to stop the amendment. This record of unsuccessful attempts to amend this section demonstrates that apparently this section, has proved to be troublesome in its application and the NA recognizes this problem but has been hindered from amending the said section by the opinion that the amendment of the section is impossible except the Constitution is amended. Despite our position that using the golden rule, it is possible to interpret this section in a manner that will make it consistent with the Constitution, it is apparent from pure common sense and a comparison of identical provisions in the laws of the few African States that provide for a Code of Conduct, that there is a lacuna in this section and as such it requires amendment by the NA or at least a definitive and authoritative interpretation by the Supreme Court to fill in the gaps. Without prejudice to the decision of the CA which remains the substantive law on the issue, unless or until it is set aside by the Supreme Court, with utmost respect to the appellate court, it appears that the CA, in arriving at its decision concerning the validity of the said section, did not advert its mind to the discretionary nature/aspect of the power conferred on the Code of Conduct Bureau (hereafter CCB) under the said paragraph of the Constitution, and its effect on the question of whether the Constitution had completely and exhaustively legislated on the issue of the discretionary power granted to the CCB to refer complaints to the CCT, “where appropriate”. It thus failed to consider whether the impugned section of the CCBT Act could have been interpreted as an attempt by the National Assembly to define the nebulous constitutional standard “where appropriate”, to mean “where the Bureau considers it necessary”, but with the exception that where a Public Officer admits the alleged breach in writing, it will no longer be appropriate to refer the matter to the Tribunal, because referring the matter is no longer necessary in that instance” The need to consider this possible interpretation is imperative in the light of the fact that the dictionary meaning of “appropriate” is “suitable or right for a particular situation or occasion”, while necessary means “needed in order to achieve a particular result”, or “needed to be done, achieved, or essential”. This implies that the Act is thereby defining situations when it is appropriate to refer a complaint to the CCT to be situations where the Bureau has fully considered whether it is necessary to do so. In the light of universal administrative law principles and grounds for judicial review this is more or less codifying the requirement that the Bureau must take into consideration what is needed to achieve the primary objective of the Code of Conduct which is discouraging a Public Officer from placing himself in a position where his personal interest conflicts with his duties and responsibilities, and not irrelevant considerations, before making a referral. Thus, the proviso can be interpreted as setting down an exception as to when it is not necessary for the purpose of achieving the objective of the Code of Conduct, to refer a complaint to the CCT. We will discuss this further when we begin a discussion of the possible interpretation of this proviso and the perceived lacuna in this proviso, in the light of other Code of Conduct legislations and rules of statutory interpretation. Furthermore, the phrase “where appropriate” does not state the person or persons responsible for determining where it is appropriate to refer the matter to the CCT, nor what considerations should guide such a determination. As such a person or institution external to the CCB can make such a determination and impose it on the CCB or a single member of the CCB may unilaterally so decide, or the CCB may even consider irrelevant factors like political considerations or exercise the power for irrelevant purposes like victimizing an individual without the decision being questioned in a court of law. However, the CCBT Act in line with global administrative principles that abhor unfettered discretion has under the impugned section 3(d) regulated, streamlined and canalized this discretionary power of referral and reduced the possibility of abuse of such powers. We will discuss this in detail when we examine the relevant administrative law principles regulating exercise of discretionary power and judicial review. The CA in Saraki’s case held inter alia that, “While section 3 of Code of Conduct Bureau and Tribunal Act FEEBLY said: “The function of the Bureau shall be to – Receive complaints…” Paragraph 3 of the Third Schedule begins in COMMANDING TONE thus: “The Bureau shall have power to: – (a) receive declarations….” This is all encompassing, and I am certain in my mind that the proviso to section s(d) of CCBT Act cannot operate to cut down or whittle down the clear provisions of the Third Schedule of 1999 Constitution which gives power to the Bureau and Code of Conduct. The 1999 Constitution did not give any room for subversion of the provisions relating to Code of Conduct for Public Officers. Without immediately going into the analysis of the judgment, we will immediately remark that the CA, in dwelling on the feeble versus commanding tones of the Act and the Constitution, took its attention off the more important issue of whether a duty coupled with a discretion and vaguely defined by the phrase “where appropriate”, can be said to have been cut down or whittled down by a subsequent act which can be interpreted as defining and canalizing the phrase “where appropriate” and excluding instances where it is not “appropriate” to exercise the discretionary power. Thus, it would have been relevant to first determine whether the power granted by the constitution to the CCB, is an absolute power whose boundaries must not be defined by the National Assembly, or whether it is partly discretionary and thus subject to regulation by standards and procedural safeguards as defined by the National Assembly in exercise of its power to legislate for the peace, order and good governance of the nation or under its reserved power under paragraph 3(g) of Part 1 of the 3rd Schedule to the 1999 Constitution to confer additional functions on the CCB. It would have also been necessary to determine whether the reserved powers of the NA under paragraph 3(g) of Part 1 of the 3rd Schedule to the 1999 Constitution or its general legislative powers under section 4(2) and 4(4b) of the Constitution is not sufficient empowerment for it to so define and set standards for the discretionary power conferred on the CCB by the Constitution. Other relevant holdings of the Court in respect to the constitutionality of the impugned section will be addressed in subsequent parts of this article.
- SUPREME COURT GUIDANCE ON THE DOCTRINE OF COVERING THE FIELD
- Whether the constitution completely and exhaustively provided for the situations when the CCB can refer complaints to the CCT and thus precluded the National Assembly from making any law to guide this discretionary power.
- whether the constitution is expected to provide for all the conditions and situations for the exercise of a discretionary power or whether the National Assembly under its express power to confer further functions on the CCB, or under its general powers to make laws for the peace, order and good government of the nation, in relation to its power to confer further functions on the CCB, may enact an Act to define the limits and procedural safeguards for the exercise of this discretion. This, in order to avoid arbitrariness by the CCB and also minimize the cost of its operation and ensure that the main objective of setting up the body which is to curb corruption and ensure that a Public Officer does not put himself in a position where his personal interest conflicts with his official functions is achieved.
- Thus, even if the said section of the CCBT Act is caught by either direct or indirect inconsistency, is it really the correct position of the law that the National Assembly cannot make a law that defines the limits of the powers of the CCB, set out in the constitution, especially where in this case, the power is also a duty coupled with a discretion?
- DISCRETIONARY POWERS OF THE ADMINISTRATION AND ITS STATUTORY AND JUDICIAL REGULATION
REVEALED: 3 natural ways to get stronger erections, last 25 minutes on bed, and increase manhood size without using drugs. Also, Natural Prostrate Enlargement Remedy.. Get In HERE...
For Advert Inquiries Tele/+234 806 819 1709 E-mail: [email protected]