Code of Conduct enshrined in Nigeria’s Constitution and its importance in fight against corruption – Part 2

Continued from Tuesday last week

Those three aspects of punishment, whether by implication or ipso facto, connote no criminal liability as such. Then interestingly, subsections (3) and (6) which must go and be read together, foresee where a criminal offence may arise from or be part of a breach of conduct by an officer. In that case, subsection (6) is unambiguous that nothing precludes that officer punished for such breach of conduct from being prosecuted or punished for such a criminal offence in a court of law.

6.5 Nothing, in my candid view, can be more definite that jurisdiction over criminal offence arising in whatever shape or form from the wording of the Act is taken off the Tribunal but belongs exclusively to a court of law. To put it plainly, the Tribunal has no criminal jurisdiction under the Act establishing it and cannot exercise it under any pretext.

6.6 In a sense, subsection (7) supports this conclusion. It says that the prerogative of mercy shall not apply to any punishment imposed in accordance with the provisions of section 23. The constitutional power to grant the prerogative of mercy either by the President or Governor is only in relation to criminal punishment and this they can exercise at their discretion. No Act can abrogate that power nor need the power be exercised where no crime has been punished. Subsection (7), therefore, is needlessly a confirmation, in effect, that the Tribunal in all circumstances deals only with breaches of conduct by public officers in whatever form except criminal. That is why the exercise of the prerogative of mercy in the punishment imposed by the Tribunal does not arise.

7.1 The Code of Conduct Tribunal is not a court and cannot exercise judicial powers. The Constitution of the Federal Republic of Nigeria 1999 (as amended) has set out established courts in section 6(5) (a)- (i); and in 6(5) (j) such other courts as may be authorized by law to exercise judicial powers. Other bodies, disciplinary committees and tribunals (such as Medical and Dental Practitioners Disciplinary Tribunal, Disciplinary Committee of the Body of Benchers, Administrative Panel including the Code of Conduct Tribunal) may punish for breaches but it must be kept in mind that they are established for disciplinary purposes, exercising at best administrative jurisdiction. They do not and are not meant to, exercise judicial power which is exclusively for the courts.

7.2 An important aspect of judicial power is the issue of individual liberty which criminal offence may threaten; and the constitution provides safeguards which only competent courts of law as the third arm of government are entrusted with the observance thereof. No other body can be so empowered. In the case of Waterside Workersí Federation of Australia v. I.W. Alexander Ltd (1918) 25 C.L.R. 442-444, Chief Justice Griffith of the High Court of Australia (the highest court in that country) aptly said inter alia:
ìIt is impossible under the constitution to confer such functions upon anybody other than a court, nor can the difficulty be avoided by designating a body, which is not in its essential character a court, by that name, or by calling the function by another name. In short, any attempt to vest any part of the judicial power ÖÖ in any body other than a court is entirely ineffectiveÖÖ it is not disputed that convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to judicial powers.î

7.3 The above observation is indisputably a demonstration of judicial oracy so appropriate to and enlightening upon the circumstances with which we are now concerned. No sustained system of jurisprudence can refute or move away from its grand perception.

7.4 I need to say at this juncture that I am particularly impressed with the observation of Jonah Adah J. of the Federal High Court in Fed. Republic of Nigeria v. Chief Joshua Chidi Dariye that:
ìThe Code of Conduct Tribunal is conceived by the constitution as a disciplinary body, and that the powers given to it by paragraph 18 of the Fifth Schedule are intended, not really to punish, but to discipline and, in the words of the Privy Council, to keep public life clean for the public goodí. I am entirely in agreement with this position of Professor Nwabueze (SAN) as the exact intendment of the Constitutional relating to the Code of Conduct Tribunalî.

7.5 In the same case, the learned judge went further to opine in no uncertain terms that:
ìThe Code of Conduct Tribunal is never conceived of as a Court by the Constitution and no legislation of the National Assembly can empower it to act as a Court or dress it with judicial powers which are only meant to be exercised by the Courts created by section 6 of the Constitution. This conclusion has solved most of the nagging questions yet to be answered in this case. Since the Code of Conduct Tribunal is not a Court and has no power of criminal trial, it cannot issue any warrant for the arrest or imprisonment of any person under any guise. In fact, the power given to the Tribunal under paragraph 18 of the 5th Schedule to the Constitution does not extend to ordering the arrest or detention of any person who contravenes the Code of Conduct. Any law which confers that power on the Tribunal will definitely be inconsistent with the provisions of the Constitution and therefore null and void.î

7.6 To the above, in order to conclude this aspect of my presentation, will be added the case of Sofekun v. Akinyemi (1981) 1 NCLR 135. There, a public officer in the public service of the western Region of Nigeria was dismissed upon a finding of guilt for indecent assault and attempted rape by a disciplinary tribunal constituted and empowered in that behalf under the Public Service Commission Regulations. His dismissal was held null and void by the Supreme Court as a usurpation of judicial power. In a judgement of the full court of seven, with no dissentient, Fatayi-Williams CJN at page 146 made this immortal observation inter alia:
ìIt seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearingÖÖNo other Tribunal, Investigating Panel or Committee will doÖÖ. If Regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission ( one of the organs of the Executive branch of the State Government ) and taken out of the hand of the magistrates and judgesÖ.If the Commission is allowed to get away with it, judicial power will certainly be erodedÖ.The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever.î

7.7 This is a fitting coalescence and re-echo of the eternal observation in 1918 (nearly one century back) by Chief Justice Griffith of Australia earlier quoted in para. 7.2 above. It is too late in the day to fail to venerate such outstanding judicial pronouncements for the protection of individual liberty and the sanctification of a worthy social order; or worse still, to unfortunately disavow such pronouncements by a side-wind.

8.1 It seems to me to follow that in the case of Saraki, he has been brought before the Code of Conduct Tribunal on making false declaration of assets as if to answer to crime in whatever sense. The claim that Tribunal has and can exercise criminal jurisdiction over him is tenuous in substance, ambivalent in direction and ambiguous in meaning as it is not borne out by the provisions of the Act as already shown in this presentation. The idea of bench warrant or warrant of arrest in a situation like this is most uncharitable to say the least; and presumably that will be a display of impunity to overrun the limits of jurisdiction in order to intimidate, and then subdue.

8.2 In the event, it is unfortunate the way he was arraigned and thereafter treated with demeaning subtlety. First, he should not have been compelled to appear in person before the Tribunal even on any day so long as he could adequately be represented by his lawyers unless he considered his presence at any stage to be in his best interest. Second, he should not have been placed in the dock since in the eye of the law as it stands, he is not, and cannot be, standing criminal trial before the Tribunal. Third, the Tribunal is not covered by and does not come under the Administration of Criminal Justice Act, 2015 in any manner whatsoever and therefore was wrong to refuse an application for stay of proceedings before it pending an appeal. It would seem to have acted with impunity in this regard.

9.1 In considering Part (b) of this Paper, it must be recalled the unease Dr. Saraki is going through in the Senate for being the Senate President. It is now open secret that the power behind the ruling Party APC did not back him for that office. It is fair to see a connection between that circumstance and the Code of Conduct matter. There is the rumour that the Chairman of the Code of Conduct Tribunal has an alleged crime hanging over him which might give the impression that he may be willing to act as the hatchet-man over Saraki to save himself the prospect of the alleged crime not seeing the light of day by way of prosecution.

9.2 Looking at the treatment Saraki has received so far in the Tribunal presided over by the said Chairman who might, or is deemed to, know that there is the Sword of Damocles hanging over him, would the ordinary, right-minded persons aware of the situation have the impression that there was a real likelihood of bias on his part to deny Saraki justice?

9.3 In such a scenario, it may well be that the Chairman will do his best to be fair. It may also well be that there is no substance in the allegation of the crime said to have been committed by the Chairman. But Lord Denning MR has stated plainly how to determine real likelihood of bias by an adjudicator when he observed in Metropolitan Properties Co. Ltd v. Lannon (1969) 1Q.B. 577 at page 599 thus:
ìIn considering whether there was real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the Chairman of a Tribunal, or whosever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.