Code of Conduct Bureau and Tribunal Act (Amendment) Bill, 2016: A critique

The Code of Conduct Bureau and Tribunal Act (Amendment) Bill, 2016 is a bill currently before the Senate. The Bill is sponsored by Senator Peter Nwabuoshi from Delta North.

The Bill, which has just four sections, was introduced to the Senate on Tuesday the 12th of April 2016 and it scaled the first reading; barely 48hrs after, on Thursday the 14th of April, 2016, the Bill also passed its second reading. The Bill has now been referred to the Senate Committee on Public Petition, Ethics and Judiciary who have been given two weeks to submit their report on the Bill.
Primarily, the bill seeks to amend the principal Act in three major ways:

. That section 3 of the principal Act which deals with the functions of the Code of Conduct Bureau be re-arranged such that subsection (c) becomes subsection (b) and by making subsection (b) to become subsection (c). Sub section (c) was also redrafted.

. That the proviso to Section 3(d) of the principal Act is to be deleted and same redrafted.

. That the third Schedule to the principal Act which deals with the Code of Conduct Tribunal Rules of Procedure should be amended to the effect that paragraph 17 thereof should be completely deleted.
Now we shall consider the original provisions and the proposed amendments to see the extent of the variance.

Original Provision:

Section 3
(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

Proposed provision:
(b) now (c) is to read thus:
(c) 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 if otherwise; the bureau shall invite the public officer concerned and take down his statement in writing.
Section 3 (d) is amended by deleting the proviso thereto and redrafted as follows:
(d) Receive complaints about non-compliance with or breach of this Act and where the bureau having regard to any statement taken or to be taken after such subsequent complaint is made considers it necessary to do so, investigate the complaint and where appropriate, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act and the Constitution in accordance with the provisions of section 20 to 25 of this Act.
Paragraph 17 of the Third Schedule which is to be deleted provides thus:

. Where these Rules contain no provision in respect of any matter relating to or connected with the trial of offences under this Act, the provisions of the Criminal Procedure Act or, depending on the venue, the Criminal Procedure Code shall, with such modifications as the circumstances may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally.

Implications of the Proposed Amendments
The re- arrangement of 3 (b) and (c) has little or no effect so we would not dwell on that.
The proposed redraft of 3 (c) depicted in italics above, is to the effect that the Bureau will be compelled (because of the use of the word ‘shall’) to invite public servants whose assets are perceived not to be in compliant with the requirements of the Act and of any law for the time being in force and take down his statement in writing. This is a positive development as it would secure the fair hearing of the affected public officer appearing before the Code of Conduct Bureau as enshrined in section 36 of the Constitution. This makes it easier for the Bureau, having regard to the statement of the public officer and the facts before them, to decide whether or not to refer the matter to the Code of Conduct Tribunal.

By virtue of the proposed amendment to Section 3(d), the Bureau, upon receipt of complaint against a public official and having regard to any statement taken or to be taken or after a subsequent complaint is made, saddles the Bureau with the task of investigating the complaint, and only if considered appropriate, will such complaint be forwarded to the Tribunal. This is also a laudable provision in that it further empowers the Bureau to conduct a preliminary investigation. This will not only drastically reduce the number of cases being forwarded to the tribunal but it will also give the tribunal worthwhile evidences and facts to work with as evidences, statements and facts gathered during the investigation will be forwarded as a case file together with the complaint to the tribunal.

By deleting paragraph 17 of the Third Schedule the Code of Conduct Tribunal is prevented from reverting to the Criminal Procedure Act or Criminal Procedure Code when its Rules do not have any provision in respect of any matter relating to, or in connection with the trial of offences under the Principal Act. This provision has generated the most controversy.

A lot of people have argued that the effect of the removal of paragraph 16 is that the tribunal is now only a paper tiger in that it can no longer impose strict punishments on erring public officers.

With due respect to any differing opinion, what paragraph 17 adopts is procedure of trial of offences under CPA and CPC and not sentencing thereon. The punishments that the tribunal has power to impose are expressly stated in the Act and to go outside that will amount to acting ultra vires. By virtue of section 23 of the Act, where the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, it shall impose upon that officer any of the punishments specified under section 23 (2). The punishment which the Tribunal may impose includes vacation of office; disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and   seizure and forfeiture to the State of any property acquired in abuse or corruption of office. The section goes further to provide that where the breach of conduct is also a criminal offence under the Criminal Code or any other enactment or law, the punishments mentioned in subsection (2) shall be without prejudice to the penalties that may be imposed by the Criminal Code or any other such enactment or law.

It is our opinion that if what the senators sought to do by removing paragraph 17 of the Third Schedule was to whittle down any power to prosecute crimes vested in the CCT, they don’t seem to have succeeded because by virtue of section 23 (3), the Tribunal still has the power to sentence in accordance with the provisions of the Criminal Code.

Another issue that is now of concern is that by this proposed removal of Paragraph 17, if this Bill is passed into law, there will be a lacuna in the law as the senators are not proposing to replace the removed CPA and CPC with another law. Invariably, where the code of conduct Rules contain no provision in respect of any matter relating to or connected with the trial of offences, the tribunal will have no rules of procedure to resort to.

Perceived Draw-backs
There has been a jurisprudential debate on whether or not the Senate can successfully amend the Code of Conduct Bureau and Tribunal Act as proposed in this Bill particularly with reference to the amendment of Section 3(b) (c) and (d). The major contention of constitutional lawyers in Nigeria is that the Senate cannot amend the provisions of Section 3 without amending the Constitution. This is because the provisions of Section 3 are im pari materia with paragraph 3 of the third schedule to the 1999 Constitution. And as such, mere amendment of the CCB and T Act cannot give effect to the intended amendment rather, it makes it inconsistent with the provision of the constitution and to that extent, it is null, void and of no effect whatsoever.

In other words, without amending the relevant provisions of the Constitution, the proposed amendment of the Act is an exercise in futility as the proposed amendment cannot alter, enlarge or curtail the relevant provisions of the Constitution the Senate ought not to continue to waste precious time and resources on the illegal exercise.

Conclusion
It is a no-brainer that the Senate has the power, and in fact, it is their function to make and amend laws where necessary so they are still within the confines of their legislative power to propose this amendment. However, such should be done in good faith, having regard to due process and the provisions of the Constitution.
Dansu is a managing partner of the law firm of Argyle and Clover and a seasoned litigator and negotiator.
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