Matters arising from the Supreme Court judgment in the Saraki case (3)
Continued from yesterday
IN fact nearly all the provisions of the Act have the clear effect and manifest a clear intention of superseding or supplanting the provisions of the Constitution. Such, for example, are the provisions:
(i) Establishing the CCB and the CCT (sections 1 and 20);
(ii) Authorising the National Assembly to “confer on the Tribunal such additional powers as may appear to it to be necessary to enable the tribunal to discharge more effectively the functions conferred on it under this Act” (section 20(5); emphasis supplied); since they include the trial and imposition of punishment for a criminal offence, “the functions conferred on [the CCT] under this Act” are much greater than the functions conferred on it by the Constitution.
(iii) Authorising the Tribunal to impose “any of the punishments specified under subsection (2) of this section” upon a public officer whom “it finds guilty of contravening any of the provisions of this Act” (section 23(1); emphasis supplied);
(iv) Relating to the manner for exercising “any right of appeal to the Court of Appeal from the decision of the Tribunal conferred by subsection (4) of this section” (section 23(5); emphasis supplied);
(v) Excluding “any punishment imposed in accordance with the provisions of this section” from the provisions of the Constitution relating to the prerogative of mercy.
The clear meaning and effect of these provisions and similar other provisions in most sections of the Act, such as those in sections 3, 6, 7, 9(1), 10(2), 15(1), (2) & (3), 16, 17, 18(1) & (2), 19, 21(1), & (2), 22(1), (3) & (4), 23, 24 and 25 is to replace the authority or use of the Constitution for this purpose with that of the Act. The Constitution ceases, to all intents and purposes, to be relevant or applicable, and is superseded or supplanted by the Act. On this ground, therefore, the Act, together with Charge No. CCT/ABJ/01/2015 based on it, is unconstitutional, null and void. The definition of “the Tribunal” in section 26 to mean “the Tribunal established by and under section 20 of this Act” is conclusive on this point.
The Act is even more glaringly unconstitutional and void because some of its provisions also purport to vary the provisions of the Constitution, which they duplicate, as with the provisions establishing the Code of Conduct Bureau (CCB) and prescribing its functions. The provision of section 1(2)(a) of the Act that “the Bureau shall consist of ……persons of unimpeachable integrity in the Nigerian society” is an addition to, and a variation of, the qualifications prescribed in section 156 of the Constitution.
Section 3(d) of the Act is at variance with paragraph 3(e) of the Third Schedule to the Constitution. For, whereas the latter empowers the CCB to “receive complaints about non-compliance with or breach of the provisions of the Code of Conduct… investigate the complaint and where appropriate refer such matter to the Code of Conduct Tribunal”, (emphasis supplied) the Act omits the power to “investigate the complaint” and replaces the phrase “where appropriate” with the words “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 section 20 to 25 of this Act.” (emphasis supplied). Needless to say, “where appropriate” confers a different kind of discretion from “where necessary”; what is necessary may not be appropriate. Furthermore, whereas under the Constitution the jurisdiction of the CCT can be invoked only by the CCB referring a complaint to it, under section 24(2) & (3) of the Act, on the other hand, proceedings before the CCT “shall be instituted” only by the Attorney-General of the Federation or by a person duly authorized by him.
It is again remarkable that neither the point about the inconsistency of the Act with the Constitution for the reasons stated above nor the decisions of the Supreme Court in Att-Gen for Abia State v. Att-Gen of the Federation, supra, and INEC & Anor v. Balarabe Musa & Anor, supra, were considered in any of the judgments delivered by the Supreme Court in the Saraki case, which must therefore be taken to have been delivered per incuriam, with the consequences noted later below. Passing reference was made to INEC v. Balarabe Musa, supra, Att-Gen, Ogun State v. Att-Gen of the Federation, supra, Att-Gen of Abia State v. Att-Gen of the Federation in the judgment of Muhammad JSC; to INEC v. Balarabe Musa, supra, in the judgment of Kekere-Ekun JSC, but the references were in relation to issues different from that of the unconstitutionality of the Act for inconsistency with the Constitution.
The consequences attendant upon a decision given per incuriam flow from the doctrine of precedent or stare decisis that governs the operation of our judicial system. A decision is said to have been per incuriam when it is given in ignorance or forgetfulness of a binding statutory provision or of a binding court decision or of a relevant provision of the Constitution with which the decision is at variance: so defined by Lord Esher MR in Morelle Ltd v. Wakeling  2 Q.B. 389 at p. 406. A decision given per incuriam lacks authority as binding precedent. In general, under the doctrine, the Supreme Court is bound to follow its previous decisions.
However, it may depart from its previous decision by a rigorous process that requires a written application praying it to do so where such previous decision “is shown to be (a) a vehicle of injustice; (b) or is given per incuriam; (c) clearly erroneous in law; (d) impeding the proper development of the law; (e) having results which are unjust, undesirable or contrary to public policy; or (f) inconsistent with the provisions of the Constitution; or (g) capable of fettering the exercise of judicial discretion” : see Adisa v. Oyinwole (2000) 10 NWLR 116 at p. 207, per Iguh JSC.
WHETHER THE CCT, EVEN IF IT CAN RIGHTLY BE REGARDED AS A COURT, IS A COURT OF LAW WHICH ALONE UNDER OUR CONSTITUTION CAN BE INVESTED WITH CRIMINAL OR QUASI-CRIMINAL JURISDICTION
The premise of the Supreme Court decision in the Saraki case, though one not explicitly articulated, is that the CCT is a court, a conclusion that flows, by implication, from the attribution of a quasi-criminal jurisdiction to it (i.e. the CCT). In taking this view, the Supreme Court failed to address the critical issue whether a court or tribunal, which is not a court of law, can, under our Constitution, be invested with criminal or quasi-criminal jurisdiction. It may be recalled that the Supreme Court the earlier cases of Sofekun v. Akinyemi, supra, and Garba v. University of Jos, supra, has decided that the trial of a person accused of a criminal offence must be by a court of law. What, then, is a court of law. And is the CCT a court of law?
Whether or not there is a difference between a court and a tribunal, and whether or not the CCT is rightly regarded as a court in the general sense, it is not, under our Constitution, a court of law, by which is meant a court composed of members required by law to be legal practitioners or lawyers learned and experienced in the law, who are versed in the difficult art of sifting evidence and judging the demeanour of witnesses, who are reared in the tradition of individual liberty inculcated in lawyers, which insists, rightly, that it is better for nine guilty persons to go free than for one innocent man to be punished, and who, finally, are obligated to adjudicate disputes according to law, or what is called justice according to law. This constitutes the cardinal marks of a court of law. For other essential attributes of a court of law, see Adeyemi v. Att-Gen of Oyo State (1984) 15 NSCC 397, per Bello JSC at page 401.
By paragraph 15(1) of the Fifth Schedule to the Constitution, the CCT consists of a Chairman and two other persons. But whilst the Chairman must be “a person who has held or is qualified to hold office as a Judge of a superior court of record in Nigeria”, the other two members are not required to be legal practitioners or lawyers; whether they are in fact lawyers or not (about which I have no information) does not really matter; what matters is that they are not required by the law of the Constitution to be legal practitioners or lawyers. The CCT is required to (or may) sit in a case with all its three members, including the two who are not required by law to be lawyers; all three have equal power in forming the decision of the Tribunal. It is a contradiction in terms to call by the name “court of law”, a tribunal consisting of three members, two of whom are not required by law to be legal practitioners or lawyers. Accordingly, the CCT, whether or not it can truly be regarded as a court in the general sense, does not qualify as a court of law by the definition above. As all the courts listed in section 6(5) of the Constitution consist of qualified lawyers with a prescribed minimum post-qualification experience, they qualify as court of law.
AS just stated, the Constitution prescribes a qualification as a legal practitioner and a minimum post-qualification experience as a legal practitioner for the members of the courts which it establishes and invests with criminal jurisdiction – 15 years post-qualification experience for a member of the Supreme Court, 12 years for the Court of Appeal, 10 years for the FHC, and 10 years for the High Court of a State. The other courts named in section 6(5) do not count for this purpose since they are not invested with criminal jurisdiction, but qualification as a legal practitoner and a minimum post-qualification experience as a legal practitioner is nevertheless prescribed in their case, i.e. the Sharia Court of Appeal of the Federal Capital Territory, Abuja; Sharia Court of Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory, Abuja; a Customary Court of Appeal of a State.
If the CCT is established by the Constitution as a court of law invested with criminal jurisdiction, the Constitution cannot, consistently with the qualification it prescribes for the other courts it establishes and invests with criminal jurisdiction, require only one, the chairman, of the three members of the CCT to be a qualified legal practitioner. This compels the conclusion that the CCT is not conceived and established by the Constitution as a court of law, and is not invested with criminal jurisdiction, even if only quasi criminal jurisdiction.
The premise of the Supreme Court decision in the Saraki case, though one not explicitly articulated, is that the CCT is a court, a conclusion that flows, by implication, from the attribution of a quasi-criminal jurisdiction to it (i.e. the CCT). In taking this view, the Supreme Court failed to address the critical issue whether a court or tribunal, which is not a court of law, can, under our Constitution, be invested with criminal or quasi-criminal jurisdiction.
The conclusion that only a court of law, as defined, can try and convict persons of criminal offences is reinforced by section 174(1) of the Constitution which empowers the Attorney-General “to institute and undertake criminal proceedings against any person before any court of law in Nigeria.” The meaning is clear. If criminal prosecution by the Attorney-General or by anyone else, subject to the power of the Attorney-General to take it over or discontinue it, can only be instituted in a court of law, it follows that the Constitution requires that only a court of law can try and convict persons of criminal offences. The same conclusion and implication flows from the provision in paragraph 18(6) of the Fifth Schedule to the effect that “nothing in this paragraph shall prejudice the prosecution of a public officer punished under this paragraph or preclude such officer from being prosecuted or punished for an offence in a court of law” (emphasis supplied).It has been shown in the preceding paragraphs above that the CCT is not a court of law, and cannot therefore try and convict persons of criminal offences.
There are good, compelling reasons why, in a democratic system of government, limited by a constitutional protection of individual liberty, the trial of a person on a criminal charge brought against him by the state, as in the present case, should be conducted, not by a tribunal, which is not a court of law, but by a court of law characterised by the attributes mentioned above.
First, conviction and punishment for a criminal offence determine authoritatively and conclusively the standing of a person as a member of society, and punishes him by the infliction of physical pain, the deprivation of personal liberty or property. Conviction for a criminal offence carries a distinct “moral obloquy and social stigma”. It is an expression of society’s disavowal of his conduct as a deliberate flouter of its values, a condemnation of him as unworthy of its membership. “To be branded an anti-social is half-way to being deemed an outlaw”, see J.R. Lucas, On Justice (1980), page 138.
The moral obloquy and social stigma of criminal conviction have practical legal consequences. Criminal conviction brands a person with an indelible stamp of someone unfit to be employed, to be admitted into decent institutions or societies or to be trusted. The disability arising from a conviction is prescribed by the law itself in cases where the offences involve dishonesty. Thus, a person convicted of such an offence is disqualified by law from holding certain public offices or from functioning in certain capacities.
The imposition of punishment following upon a conviction carries the matter further, by giving society’s disesteem a tangible form in the way of some unwelcome action, like imprisonment. It thus gives weight to society’s verbal condemnation and disesteem of a person flouting its values.
To condemn and disgrace a person as a flouter of society’s values, and to punish him accordingly, imperatively requires that the process used must be such as is used in a court, learned and experienced in the law and characterised by the other attributes of a court of law specified above, a process that guarantees the independence and impartiality of the tribunal and the other safeguards of a fair trial, such as the presumption of innocence, the requirement of proof beyond reasonable doubt, the rules of admissibility or inadmissibility of evidence, impartiality etc. This is necessary to guard against as much as possible the possibility of an innocent person being convicted. The injustice of a false conviction and punishment is among the worst injustices imaginable.
WHETHER THE INITIATION OF THE CRIMINAL PROSECUTION AGAINST DR SARAKI BEFORE THE CCT BY A DEPUTY DIRECTOR IN THE FEDERAL MINISTRY OF JUSTICE AT A TIME WHEN THERE WAS NO INCUMBENT ATTORNEY-GENERAL OF THE FEDERATION (AGF) IS VALID AND COMPETENT IN LAW
The need for consistency as between the various decisions of our apex court in the interest of certainty in the law and its orderly development in order to avoid the confusion and chaos arising from conflicting or contradictory decisions of that Court could not have been more evidently underscored than in the judgments delivered in the Saraki case on the issue whether the prosecution of Dr Saraki before the CCT is validly initiated by a Deputy Director in the Federal Ministry of Justice at a time when there was no incumbent Attorney-General of the Federation (AGF).
The issue depends on the interpretation of section 174 of the Constitution which provides in its subsection (1) that the Attorney-General “shall have power (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria”; subsection (2) then goes on to provide that “the powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or [by him] through officers of his department.” The words “by him” are added by me to bring out the meaning more clearly. It must be borne in mind that the form of words in section 174(2) is the same as that in section 5(1) vesting executive power in the President.
To enable the meaning of the provision to be better understood, attention should be drawn to the title of section 174 appearing at the margin. It is captioned “public prosecutions”. The powers given to the AGF by section 174 relate solely, and are limited, to public prosecutions, i.e. prosecutions by and in the name of the state, the Federal Republic of Nigeria (FRN), as incarnating or personifying the public. The AGF’s power to initiate/undertake public prosecutions does not exclude a power in other agencies, corporate bodies or individual persons to initiate/undertake prosecutions which are not public prosecutions as defined, a fact implied in the provision empowering the AGF to take over or to discontinue any “criminal proceedings that may have been instituted by any other authority or person” : section 174(1)(b) & (c). The powers with respect to the control of public prosecutions are granted to the AGF as “the Chief Law Officer of the Federation and a Minister of the Government of the Federation”: section 150(1) which specifically so designates him, with qualification prescribed by section 150(2). The office of AGF and Minister of Justice is the only ministerial office specifically established by name by the Constitution.
First, conviction and punishment for a criminal offence determine authoritatively and conclusively the standing of a person as a member of society, and punishes him by the infliction of physical pain, the deprivation of personal liberty or property. Conviction for a criminal offence carries a distinct “moral obloquy and social stigma”. It is an expression of society’s disavowal of his conduct as a deliberate flouter of its values, a condemnation of him as unworthy of its membership.
The reason why the control of public prosecutions is vested in the AGF by the Constitution needs to be explained and understood to aid the interpretation of section 174. The reason for it is because public prosecutions often have sensitive and volative political dimensions and results affecting the relations between the Government and its opponents within the country and its international relations, necessitating that the decision to prosecute or not to prosecute certain cases or persons should be taken at the level of the Government, as advised and guided by the AGF as the Chief Law Officer of the Government and Minister of Justice. Section 174 cannot therefore be insightfully and correctly interpreted without due regard to the public interest or public policy considerations underlying the vesting in the AGF of the control of criminal prosecutions, which makes it undesirable that other officers in the Ministry of Justice, including even the Solicitor-General, should have the power to control public prosecutions. The sensitive and volatile nature of public prosecutions is reflected in the provision in section 174(3) that “in exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process”, a judgment which only the AGF as the Chief Law Officer of the Government and Minister of Justice can exercise.
ON the issue under consideration, the Supreme Court held that the criminal prosecution against Dr Saraki before the CCT was validly and competently initiated by a Deputy Director in the Federal Ministry of Justice at a time when there was no incumbent AGF, relying on the previous case of FRN v. Adewunmi (2007) 10 NWLR (Pt 1042) 399 at pages 418 – 419 where Kalgo JSC, delivering the lead judgment, said:
“These sections though very similar in content do not require that the officers can only exercise the power to institute criminal proceedings if the Attorney-General expressly donated his power to them. The provisions of the sections presume that any officer in any department of the Attorney-General’s office is empowered to initiate criminal proceedings unless it is proved otherwise. This will not be in conflict with our decision in A.-G., Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483, where the main controversy was that there was no incumbent Attorney-General who could have donated the power to discontinue criminal prosecution in the case concerned.” (emphasis supplied)
TO BE CONTINUED
• Prof. Nwabueze is a constitutional lawyer