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‘Court not vested with judicial powers cannot try, punish criminal offenders’

By IBE UWALEKE
23 February 2016   |   3:45 am
The recent judgment of the Supreme Court conferring quasi-criminal jurisdiction on the Code of Conduct Tribunal (CCT), to try criminal offences before it, is raising several issues in Nigeria’s constitutional democracy. The issues are the constitutionality of a court or tribunal not covered under Sections 6 and 36 of the 1999 Constitution, as amended, can…
Nwabueze

Nwabueze

The recent judgment of the Supreme Court conferring quasi-criminal jurisdiction on the Code of Conduct Tribunal (CCT), to try criminal offences before it, is raising several issues in Nigeria’s constitutional democracy. The issues are the constitutionality of a court or tribunal not covered under Sections 6 and 36 of the 1999 Constitution, as amended, can be validly said to exercise judicial powers to try criminal offences, if they are not derived from the Grundnum. A professor of Constitutional Law, a Senior Advocate of Nigeria (SAN) and a former Minister of Education, Ben Nwabueze, an Octogenarian, believes that the Supreme Court judgment granting the CCT quasi-criminal powers to try offenders will not stand the test of time as the judgment in question is at all times, at variance with the Constitution, adding that any attempt to enforce the judgment will spell doom for the county’s democracy.
He spoke to IBE UWALEKE in this exclusive interview he granted The Guardian.

Prof.; share this burning interest you have to interpret or criticise the recent Supreme Court’s judgment on Senate President, Bukola Saraki, which confers quasi-criminal jurisdiction on the Code of Conduct Tribunal. Is it a demonstration of personal interest or an urge to safeguard Nigeria’s constitutional democracy?

It is the impact of the Supreme Court’s decision on Nigeria’s Constitutional system that is in issue. Our constitutional system is based on legislative power, which is vested in the National Assembly under Section 4 of the 1999 Constitution, as amended, the executive power, vested in the President, under Section 5 of the Constitution and the judicial power, vested in the courts, under Section 6 of the same Constitution. These were the pillars of our constitutional system. Anything that will undermine this pillar (judicial power) will put us into trouble. This is my concern about the decision of the Supreme Court in the Saraki case. Here lies my interest.

Looking at the judgment so critically, to see whether it puts into jeopardy our constitutional system, we have to look at this judgment from the point of view of the Supreme Court, as the court of last resort. Therefore, the Supreme Court should realize its peculiar situation under the constitutional system and to try to make sure that its decisions and judgments are based on the Constitution. A violation of each of the three powers, the judicial power is the one in issue, will spell doom for the country.
What are judicial powers and their incidents? In whom is judicial power vested under the Constitution? This is an issue the Supreme Court did not consider in giving its decision to confer quasi criminal jurisdiction on the Code of Conduct Tribunal, arguing that the Constitution confers quasi criminal jurisdiction on the tribunal.

What is quasi-criminal jurisdiction? It means ‘as if’, ‘not really’. I was intrigued by that expression. The tribunal by the decision of the Supreme Court tries to derive that quasi jurisdiction both from the Constitution and the Act of the National Assembly. Can the tribunal derive its criminal jurisdiction quasi or not quasi from the Constitution that we know? It is impossible to derive it. The Supreme Court in its decision tried to suggest that CCT has quasi criminal jurisdiction by saying that there are various terms and expressions in the Constitution that suggest that the CCT has a quasi criminal jurisdiction.
Quasi-criminal jurisdiction or criminal jurisdiction means that the CCT can try people for criminal offences and punish them.

Whereas Section 36(12) says clearly that you cannot try, convict and punish a person for a criminal offence unless that offence is defined in written law and the punishment therefore, is also prescribed by the written law. It goes on to say that the written law under this provision means an Act of the National Assembly, a Law of the State House of Assembly, Subsidiary Legislation or Instrument. It does not mention the Constitution. So, you cannot try anybody or punish anybody under the Constitution for a criminal offence unless there is a law defining the offence. Therefore, there is no way the CCT can derive its quasi-criminal jurisdiction from the Constitution. Where this court tries to derive its quasi-criminal jurisdiction from the Constitution, it will be contrary or at variance with this provision of the Constitution and therefore null and void.

Some stakeholders are asking why you are questioning the status of the CCT now instead of the time former governor of Lagos State, Ahmed Bola Tinubu appeared before the same tribunal over asset declaration offence.

I was not aware that Tinubu was tried at the CCT. I was only aware that the matter was before the CCB. I did not know the matter proceeded to trial.

What then informed this present questioning of the CCT’s status and jurisdiction requiring accurate prescription from the Constitution or Grundnum. Is it because it involves Saraki?

The issue was not raised in the case of Tinubu. Though it can be raised at any time. Because the issue was not raised during Tinubu’s time does not preclude it from being raised now. I have no special interest in Saraki’s case, I am only concerned about the Constitution. The issue of CCT’s status and its quasi-criminal jurisdiction remains a constitutional issue and must be resolved if this country must be in peace. I mean, this must be resolved now because if it is not resolved, so many people who may have the same experience, including the former governors are not free from this accusation of false declaration of assets. The issue is of such national importance, that it should be investigated, examined and final authoritative decision given. A decision that takes into account the constitutional provisions relevant to it.

The second point I want to make is that you cannot derive the quasi-criminal jurisdiction from the Constitution because of Section 36 (12) of the 1999 Constitution as amended. You can also not derive it because of Section 6 of the Constitution which is a more complex issue. Section 36(12) can be seen and understood that the argument based on Section 6 is a little too intricate for non lawyers to understand, even for lawyers, not all lawyers will appreciate it. It is Section 6 that vests judicial powers in the courts, just like the legislative power is vested in the National Assembly under Section 4 and the executive power is vested in the President under Section 5.

Is the CCT one of the courts in whom judicial powers are vested? Section 6(5) lists the courts that judicial powers are vested with. The CCT is not one of them. Even in the Residual Clause, CCT is not also covered in the Clause. No one can contest that CCT is not one of the courts in which judicial powers is vested. What are the implications of vesting judicial powers in the courts? This has been established by an authority long time ago from the High Court of Australia, which is the highest court in that country, which is equivalent to our Supreme Court where it said that ‘an exclusive incident of judicial power is the power to try, convict and punish people for criminal offences. That criminal jurisdiction appertains exclusively to judicial power’. These were the words used by the high court by Sir Samuel Walker Griffiths Chief Justice and Premier of Australia, who delivered the judgment for the court.

Any court or tribunal in which judicial power is not vested cannot try, convict or punish people for criminal offence.
This decision of the High Court of Australia has been followed by our own courts, by our Supreme Court in Shofekun v. Adewumi, a judgment of Justice Fatai Williams, CJN, as he then was, in a unanimous judgment that included the best of the judges we had had at the Supreme Court. They ruled that once you have accused a person of a criminal offence he must be tried before a court of law in which judicial power is vested.

This is so laid down as part of our constitutional system.
What is in issue here is not whether Saraki is guilty or not guilty. Nobody is trying to shelter Saraki. He should be tried for offences alleged against him. But he has a constitutional right to be tried in accordance with Section 6 of our Constitution. To go against that is to put into jeopardy our constitutional system. The Supreme Court should not be allowed to put all of us into this kind of jeopardy.

This country belongs to all of us, not to the Justices of the Supreme Court alone.
I was principal party in the making of the 1999 Constitution. In fact, that Constitution was drafted by Chief Rotimi Williams and I, before it was taken to the Constitution Drafting Committee, (CDC), of which he also became the chairman, and I was chairman of one of the sub committees. All the lawyer members of the CDC approved the Draft Constitution before it was taken to the full committee, and later to the Constituent Assembly (CA) which Williams and I were members by virtue of a provision in the Decree that made the chairman of the committee and all the chairmen of the six sub committees members. So I did not contest election. The 1979 Constitution is the basis of the 1999 Constitution.

Since CCT is not vested with the power to try criminal offences, will you prefer if Saraki is tried at the Federal High Court?

You are jumping the gun. We have not got there yet. The point that I am making is that the so-called quasi-criminal jurisdiction that the apex court claimed for CCT, cannot be derived from the Constitution because of Section 36(12) to Section 6. But the Supreme Court tried to derive it not only from the Constitution, but also from the law of the National Assembly. That law is the Code of Conduct Bureau (CCB) and CCT Act made by the National Assembly. The Act is not valid in this regard. I don’t know how this Act passed though the National Assembly and no one noticed the obvious inconsistency between it and the Constitution. The thing went through. It has been in our Statute Book for years. Nobody has drawn attention to this.

The Supreme Court in its lead judgment quoted paragraph 51 of the 5th Schedule, Section 20(1) of CCT Act that establishes the tribunal in identical words. Anybody looking at it, lawyer or no lawyer will find out that this is duplication. Even the apex court quoting the Constitution and the Act at the same judgment would have known that it was duplication. Can this be permitted, that something established by the Constitution should be reestablished by an ordinary law. The Supreme Court has held in a previous case, the lead judgment was given by Justice Kutigi (CJN), as he then was, that ‘where you have such a duplication, the ordinary law cannot stand with the Constitution, and therefore null and void for its inconsistency’. The intention by the Supreme Court in the judgment against Saraki is that ordinary law supersedes the Constitution. If you read that Act from the beginning to the end you will see that the intention is to supplant or supersede the Constitution. But it cannot be. The Act is clearly unconstitutional, null and void by the authority of the Supreme Court in that particular case.

So the Supreme Court should be aware of its earlier judgments. There is no excuse. This was what the court used to do in the past. The apex Court should have researchers. The apex Court in the United States of America (USA) has similar arrangement whereby it recruits legal researchers, or clerks to avoid a judge of the Supreme Court giving a judgment in ignorance of the court’s earlier decisions. It is unfortunate that in this particular case, no kind of reference was made to the court’s previous three decisions. No question was raised whether the Act being applied was consistent with the Constitution.

From what you have established that the CCT cannot exercise criminal jurisdiction, quasi or no quasi. Do you now suggest that those standing trial before the CCT should be taken to the high court that has competent jurisdiction?

Certainly. This is what I will suggest. The CCT certainly has no criminal jurisdiction either derived from the Constitution or from the CCB Act. Any attempt to try Saraki or anybody else by the CCT will be void for lack of jurisdiction, not withstanding what the Supreme Court has said on the matter.

The only court that can assume jurisdiction to try Saraki or anybody else is the Federal High Court under Section 251 of the Constitution. But the FHC can only try Saraki when you establish the law that created the offence for which he will be tried. Certainly it is not the Constitution. If we now say it is the CCB and CCT Act that created the offences, we have established that this is unconstitutional.

If Saraki cannot be tried at the CCT or at FHC because of the Act creating his offence, where will he be tried or how do we resolve his case?

Look at all the Statutes and see if there is any one of them that can be used or said to create any or all the offences alleged. There may be! Who knows. Look through the EFCC Act, ICPC Act and Money Laundering Act, to see where you can create the offence to try Saraki. If you cannot find any law that can create the offences to try the man, then amend the law, National Assembly should pass a new Act. It will not take time.

Don’t you think the process you are suggesting will delay the action President Buhari is taking to clean up the system, particularly the civil service and other government departments?

Delay is not what we are talking about here, what we should be concerned is how to be right in what we do. To follow the Constitution. You don’t subject people to a trial in a court or tribunal that does not have jurisdiction. Jurisdiction is so fundamental in a trial. And until the issue of jurisdiction is sorted out, no trial can take place.

Access to Justice, a human rights group, has earlier suggested that the Act establishing the CCB and CCT should be amended to remove them from the Presidency and place them under the supervision of the National Judicial Council (NJC), and to grant them jurisdiction that will be recognized by the Constitution. Do you agree with this suggestion?

I agree with it entirely. You need drastic change in law. The Saraki case has served a purpose. It is drawing attention to the
shortcomings in our law with regard to CCB and CCT Act. This Act must be redrafted.

What do you think is the challenge the Supreme Court is facing right now that is inhibiting it from doing a more thorough job?
Does it have to do with the budget to the judiciary that is abysmally low, which is frustrating the court from hiring legal assistants for researches?

The Supreme Court is over worked. Again, the judges there do not have legal aides, assistants or researchers. There is no way the judges can keep track with all their decisions. Because of this, the Supreme Court gives judgments in ignorance of its earlier decisions. You don’t blame the Justices themselves because there is a limit to the human power.
Another problem facing the judiciary is the issue of lean budget. An arm of government supposed to be equal in status. But the judiciary is not treated as co-equal.

The next thing that can be done to reduce the workload of the apex court is to create a Special Constitutional Law Division within the Supreme Court. This can be done administratively and does not require constitutional amendment. I prefer this to the creation of a Special Constitutional Court which requires constitutional amendment. There are such Constitutional Courts in many countries, the latest of which is Constitutional Court of South Africa. A Special Constitutional Court has advantages and disadvantages.

Why is the judiciary not financially independent like the other arms of government?

Judiciary is the weakest arm even though it is the watchdog. The financial crisis that has rocked the judiciary has been on for years. The judiciary has been crying and crying, but no one wants to listen.

There have been statements recently credited to the President and the Attorney General of the Federation (AGF) allegedly lampooning the judiciary over its drag to fight corruption. Do you think Nigeria is under a democracy with these criticisms coming from the executive?

I do not think we are in a democracy. We made a terrible mistake in electing a former Head of the Federal Military Government, Olusegun Obasanjo to kick-start the transition to democracy in 1999. What he kick-started was so far from democracy. That is the origin of our troubles. Obasanjo so subverted the Constitution and democracy in such a way that what we took from him was not democracy. We have continued the mistake now with another former head of military government, Mohammadu Buhari.
This Saraki case is so important to me because it seems to me that it will be an opportunity for real change. This change, change we have been talking about.

I have also, as my last contribution to the development of this country, set up ‘The Ben Nwabueze Centre’ (BEC), for studies in constitutional law and related issues, with my daughter as the executive director. We are organizing a conference on the 24th of March at the Nigeria Institute of International Affairs (NIIA), Lagos.

Why did you say the Chairman of CCT would be bias in trying Saraki in his court?

It is because of the allegation of corruption against him according to newspaper reports. The issue of bias is so clearly written. Besides, the Federal Republic of Nigeria (FRN) is the complainant in the Saraki case. The Supreme Court had decided on this matter that where the employer/employee relationship is there, the issue of bias will arise. No employee will neglect the interest of his employer otherwise he will be sacked. Therefore, the chairman should step aside in the case if the President doesn’t want to remove him.

Do you foresee Nigeria practicing constitutional democracy under President Buhari?

Constitutional democracy is not the same thing as democracy. Constitutional democracy is a democracy limited by the Constitution, constitutional limitation of powers. The war against corruption should be fought within the limitation of the Constitution. But that is not what is happening. The danger is, because of the public glamour of fighting corruption, the government can get away with anything. Government should not be allowed to get away with perversions in the name of fighting corruption.

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