The CJN’s CCT trial: Wrong Idea, Wrong Law?

Introduction

In a move widely interpreted as motivated by either political
desperation or ruthless Machiavellism, the Presidency, through the
Attorney-General of the Federation, Abubakar Malami, on Monday,
charged the Chief Justice of Nigeria (CJN), Hon. Justice Walter
Onnoghen, before the Code of Conduct Tribunal, Abuja allegedly for
falsely declaring or failing to declare his assets, contrary to
Section 15(2) of the Code of Conduct Bureau and Tribunal
Act. The six-odd charges are as follows:

1. That the CJN failed to submit a written declaration of his
   assets within 3 months of becoming a Justice of the Supreme Court
   in June 2005;
2. That on assuming office as CJN in December 2016, His Lordship
   failed to declare a US Dollar account which he maintained with
   Standard Chartered Bank since 2011;

• That on assuming office as CJN in December 2016, His Lordship
  failed to declare a Euro Domiciliary account which he maintained
  with Standard Chartered Bank since 2011;

1. That on assuming office as CJN in December 2016, His Lordship
   failed to declare a British Pounds Domiciliary account which he
   maintained with Standard Chartered Bank since 2011;
2. That on assuming office as CJN in December 2016, His Lordship
   failed to declare an e-Saver account which he maintained with
   Standard Chartered Bank since 2011;
3. That on assuming office as CJN in December 2016, His Lordship
   failed to declare a Nigerian Naira account which he maintained with
   Standard Chartered Bank since 2011

Is there more to the charges than meet the
eyes?

The timing of the charges, a few weeks to the Presidential
elections next month, has predictably elicited a storm of public
reaction, mostly negative. Public perception seems to be that the
President has decided to go for broke, thereby confirming a
long-held suspicion that he is not altogether comfortable
with  Hon. Justice Onnoghen as the head of the judiciary. If
this is correct, it is not inconceivable that, as part of a grand
strategy, President Buhari’s advisers have reasoned that his
re-election might be imperiled by a legal challenge which would
culminate in an appeal before an Onnoghen-led Supreme Court. To
forestall this, they have probably reasoned that the best way out
would be to get the CJN out of the way willy nilly, by forcing him
to recuse himself from the panel of the apex court which will
handle any such challenge. While this might seem speculative, it is
certainly not far-fetched.

I intend to steer well clear of such speculations or even any
consideration of the merits or otherwise of the charges against the
CJN, as it would be grossly inappropriate to do so, for obvious
reasons; the CJN himself admonished all of us against doing that
(commenting on matters which are sub judice) almost a year
ago to the day. Accordingly, I shall confine myself to a discussion
of what I perceive to be the legality or otherwise of the law under
which the charges have been laid, namely the Code of
Conduct Bureau and Tribunal Act. For reasons which will
shortly follow, I believe that they should have been laid under the
provisions of the Code of Conduct for Public
Officers contained in Schedules Three and Five of
the 1999 Constitution.

The Code of Conduct for Public Officers

This is the subject of Section 153, Paragraphs 1 – 4 of the
Third Schedule  and the entirety of the Fifth Schedule to the
1999 Constitution. Whist the first establishes the Code of Conduct
Bureau, the second sets out the powers of the Bureau, whilst the
last contains the Code itself as well as the pwers of the Code of
Conduct Tribunal. I believe that a critical study of both the Code
of Conduct Bureau and Tribunal Act as well as the aforesaid
constitutional provisions will reveal that both sets of provisions
are almost identical.

To start with, Section 153(1)(a) of the
Constitution which establishes the Bureau is the same as
Section 1(1) of the Act; Paragraph 1 of the
3^rd Schedule to the Constitution is the same as Section
1(2) of the Act, whilst Section 3 of the Act which sets out the
functions of the Bureau is replicated in Paragraph 3 of the
3^rd Schedule to the Constitution, with the notable
omission of the proviso to Section 3(d) of the former in the
latter. This was the subject of much public debate when the Senate
President, Dr. Bukola Saraki was charged before the Tribunal a
couple of years ago.

Paragraph 4(2) of the Act is similar to
Paragraph 3(f) of Part 1 of the Third Schedule to the
Constitution which empowers the Bureau to hire and
exercise disciplinary control over its staff. Sections 5 to 14,
inclusive, of the Act are repeated verbatim in Paragraphs 1 to 10
of Fifth Schedule to the Constitution, whilst Section 15 of the
Act, under which the CJN has been charged, is similar to Paragraph
11 of Part 1 of the Fifth Schedule to the Constitution, the only
difference being the minimum ages of the unmarried children of
public officers, which is 21 years under the Act and 18 years under
the Constitution.

Sections 16 and 17 of the Act are similar to
Paragraphs 12 and 13 of the 5^th Fifth Schedule
to the Constitution, with their subject matters given as
“allegations of breach of the Code/Act” and “Agents and Nominees”,
respectively. Section 18(1) of the Act is similar in content to
Paragraph 14(b) of Part 1 of the 5^th Schedule titled
‘Exemptions”; however, whilst the former empowers the President to
exempt any cadre of public officers from its provisions, the
Constitution confers that power on the National Assembly, but only
in respect of Paragraphs 4 and 11 of the Code. In addition,
Paragraph 14(a) of the 5^th Schedule exempts legislators
from the provisions of Paragraph 4 of the Code.

Sections 20 to 23 inclusive of the Act are
similar to Paragraphs 15 to 18 of Part 1 of the
5^th Schedule to the Constitution titled
“Establishment of the Code of Conduct Tribunal”, “Staff”, “Tenure
of office of Chairman and members” and “Powers of the Tribunal”,
respectively. A notable omission from the Constitution are the
provisions of Sections 24 and 25 of the Act are titled “Rules of
Procedure and Institution of Proceedings” and “Power to Issue
Search Warrants”, respectively.

Notwithstanding this, I believe that to the extent that both the
Act and the Constitution cover virtually the same ground as far as
a Code of Conduct for Public Officers is concerned, the
Constitution is deemed to have covered the field. Accordingly, the
provisions of the Act can no longer be used to charge a public
officer such as the CJN for any alleged violation of the Code. This
principle was reiterated by the apex court in
ATTORNEY-GENERAL OF ABIA STATE vs. ATTORNEY-GENERAL OF THE
FEDERATION (1002) 6 NWLR pg. 264 @ 369, where the court
opined thus:

“The doctrine of covering the field can conveniently be
extended to apply to a situation where the Constitution has
covered  the field vis-à-vis a Federal or State legislation.
Such legislation is not void simpliciter, but will be inoperative
in view of the provisions of the Constitution. However, if the
legislation is inconsistent with the provisions of the
Constitution, then the legislation is void to the extent of the
inconsistency”

The apex court further held in the same decision that:

“Where the provision of the Act is within the legislative
powers of the National Assembly, but the Constitution is found to
have already made the same or similar provisions, then the new
provision will be regarded as invalid for duplication and/or
inconsistency and therefore inoperative. The same fate will befall
any provision of the Act which seeks to enlarge, curtail or alter
any existing provision of the Constitution. The provision will be
treated as unconstitutional and therefore null and void”.

Conclusion

As previously advised, the foregoing commentary is limited by
the rule against discussing the merits of a pending litigation. But
for that, certain moral judgments ought to have been made. Be that
as it may, the State ought to take note of the remarks of the apex
court on the impropriety of taking cognizance of, and even acting
under a statute which is either inoperative or is outrightly
inconsistent with relevant provisions of the Constitution on the
ground  that the Constitution has already covered that
legislative field. Needless to say, any such action or proceedings
will be an exercise in futility.

On a parting note, those agitated by the unprecedented spectacle
of an incumbent CJN  facing a criminal or even quasi-criminal
trial should calm down. To the extent that the heads of the
Executive (the President/Vice- President, State Governors and their
Deputies) enjoy constitutional immunity from such proceedings, a
good case can be made for amending the Constitution to extend that
cover to not only the CJN, but the heads of the Legislature as
well. After all, what is good for the goose ought to be sauce for
the gander.

Abubakar D. Sani, Esq.