Constitutionality Of The Proviso To Section 3(D) Of The Code Of Conduct Bureau And Tribunal ACT

The Code of Conduct Bureau and Tribunal Act has received a great
deal of scrutiny in the past two weeks with the filing of charges
against the Chief Justice of Nigeria Mr. Walter Onnoghen for
alleged breaches of provisions of the Act.

I have argued that the Act itself provides a complete defence
under the conditions adumbrated in the proviso to Section 3(d) of
the CCBT Act.

A contrary opinion is that that proviso is unconstitutional
because the 3^rd and 5^th Schedules to the
Constitution which re-establishes the Code of Conduct Bureau and
Tribunal, respectively, does not contain the said proviso.

It would seem that the argument is misconceived. And here are
the reasons why.

Those who argue that the proviso is unconstitutional rely
alleged inconsistency with paragraph 3 of Part 1 of the Third
Schedule to the 1999 Constitution.

I reproduce it in full here,

1. The Bureau shall have power to  –

(a)      receive declarations
by public officers made under paragraph 12 of Part of the Fifth
Schedule to this Constitution

(b)      examine declarations
in accordance with the requirements of the Code of Conduct or any
law

(c)      retain custody of such
declarations in and make them available for inspection by any
citizen of Nigeria on such terms and conditions as the National
Assembly may prescribe

(d)     ensure compliance with and,
where appropriate enforce the provisions of the Code of Conduct or
any law relating thereto;

(e)      receive complaints
about non-compliance with or breach of the provisions of the Code
of Conduct or any law in relation thereto, investigate the
complaint and, where appropriate, refer such matters to the Code of
Conduct Tribunal;

(f)      appoint, promote,
dismiss and exercise control over staff of the Code of Conduct
Bureau in accordance with the provisions of an Act of the National
Assembly enacted in that behalf; and

(g)      carry out such other
functions as may be conferred upon it by the National
Assembly.

I agree with the Supremacy Clause of the Constitution. See
section 1(1) of the 1999 Constitution.  I also agree with the
Inconsistency Principle of the Constitution as enshrined in Section
1(3) of the 1999 Constitution which reads,

“If any law is inconsistent with the provisions of this
Constitution, this constitution shall prevail, and that other law
shall to the extent of the inconsistency be void. “

Before examining the proviso to Section 3(d) of the CCBT Act for
inconsistency, if any, let us examine the provisions of Paragraph 3
of the First Part of the Third Schedule to the Constitution, which
I have reproduced above.

First you would notice that sub-paragraphs b, c, d and e of
paragraph 3 all use a peculiar phrase ‘provisions or requirements
of Code of Conduct or  any law’ – that is what we lawyers call
incorporation by reference. When you refer to a second document in
another document, the provisions of the second document are
incorporated or added into the first, subject to what the latter
documents says.

Thus in sub-paragraph e which gives the Code of Conduct Bureau
power to refer breaches or non-compliance to the Code of Conduct
Tribunal, the Constitution says the Bureau is “to receive
complaints, investigate the complaints and WHERE APPROPRIATE, refer
such matters to the Code of Conduct Tribunal.”

‘Where appropriate’ simply means there are instances where it is
not appropriate to refer complaints to the Tribunal.  Or can
you think of any definition of ‘where appropriate’ which means ‘in
all circumstances?

So the Constitution already impliedly or expressly provides that
there can be situations where it would not be appropriate to refer
cases to the Code of Conduct Tribunal.

It would thus do violence to the Constitution to argue that
there are no cases where it would be inappropriate to refer cases
investigated by the Code of Conduct Bureau to the Tribunal.

In case I am wrong let us refer to a few principles of
Constitutional interpretation.  In ATTORNEY GENERAL
BENDEL STATE v ATTORNEY GENERAL FEDERATION & 22 ORS (1981) 10 S.C.
1, at pages 77-78, the Supreme Court laid down the rules
of interpretation of the Constitution when it said,

“In the interpretation and construction of our 1979
Constitution, I must bear the following principles of
interpretation in mind.

• Effect should be given to every word.
• xxxxxxxxx
• A constitutional power cannot be used by way of condition to
  attain unconstitutional result.
• The language of the Constitution where clear and unambiguous
  must be given it plain evident meaning.
• The Constitution of the Federal Republic of Nigeria is an
  organic scheme of government to be dealt with as an entirety; a
  particular provision cannot be dis-severed from the rest of the
  Constitution.
• While language of the Constitution does not change, the
  changing circumstances of a progressive society for which it was
  designed yield new and fuller import to its meaning.
• A constitutional provision should not be construed to defeat
  its evident purpose.
• Under a constitution conferring specific powers, a particular
  power must be granted or it cannot be exercised.
• Delegation by the National Assembly of its essential
  legislative functions is precluded by the Constitution.
• xxxxxxxxxxxxx
• The principles upon which the Constituion was established
  rather than the direct operation or literal meaning of the words
  used, measure the purpose and scope of its provisions.
• Words of the Constitution are therefore not be read with
  stultifying narrowness.”

Obaseki, JSC (of blessed memory) went on to say “Courts, it must
be emphasized, cannot amend the Constitution. They cannot change
the words. They must accept the words, and so far as they introduce
change, it can come only through their interpretation of the
meaning of the words which change with the passage of time and
age.”

So, if the courts cannot change the words of the Constitution,
we cannot change the words either.

In this case the words I refer to are, “where appropriate.” The
ordinary meaning of a word is usually what the dictionary gives us.
The Oxford Advanced Learner’s Dictionary says appropriate means,
“suitable, acceptable or correct for the particular circumstances.”
Of course, that means what may be suitable in some circumstances
would not be suitable, correct or acceptable in other
circumstances.

We have thus established that constitutionally, it is not in
every case that the Bureau is to refer cases it has investigated to
the Tribunal.

The question that remains to be answered is how do we know when
the Bureau is not to refer cases of non-compliance or breach to the
Tribunal.

The Constitution gives us the answer. Sub-paragraph 3(e) of Part
1 of the 3^rd Schedule says, the Bureau shall have
power to receive complaints about non-compliance with or breach of
the provisions of the Code of Conduct or any law in relation
thereto, investigate the complaint and, where appropriate, refer
such matters to the Code of Conduct Tribunal.

The complaints which can be referred to the Code of Conduct
Tribunal are those which are in “non compliance with or [in] breach
of the provisions of the Code of Conduct [in the Constitution] or
any law in relation thereto.”

As stated above this device in law is called incorporation by
reference. ‘Any law in relation thereto’ clearly includes the Code
of Conduct Bureau and Tribunal Act.

THE INCONSISTENCY TEST

So is the proviso to the Section 3(d) of the CCBT Act
inconsistent with the provisions of paragraph 3 of Part 1 of the
Third Schedule to the 1999 Constitution?

There is no expressed conflict. An expressed conflict or
inconsistency is where the Constitution says one thing in express
or positive terms and the law says something else in express or
positive terms. A good example is paragraph 11 (1) of Part 1 of the
Fifth Schedule to the 1999 Constitution which reads,

11(1) Subject to the provisions of this Constitution,
every public officer shall within 3 months after the coming into
force of this Code of Conduct or immediately after taking office
and thereafter-

• At the end of every four years; and
• At the end of his term of office,

Submit to the Code of Conduct Bureau a written
declaration of all his properties, assets, and liabilities and
those of his unmarried children under the age of eighteen
years.

Contrast this with Section 15 of the CCBT Act, which
provides

15 (1). Every public officer shall, within fifteen
months after the coming into force of this Act or immediately after
taking office and thereafter –

• At the end of every four years;
• At the end of his term of office; and
• In the case of a serving officer, within 30 days of the
  receipt of the form from the Bureau or at such other intervals as
  the Bureau may specify

Submit to the Bureau a written declaration in the Form
prescribed in the First Schedule to this Act or, in such form as
the Bureau may, from time to time, specify, of all his properties,
assets and liabilities and those of his spouse or unmarried
children under the age of twenty one years.

Now from the above two passages it would be seen that the cut
off age for declaration of assets and liabilities of unmarried
children has changed from 21 years in the CCBTA to 18 years in the
Fifth Schedule to the 1999 Constitution.

That is a case of express inconsistency. Both provisions cannot
stand side by side, so one of them has to go and by virtue of
Section 1(3) of the 1999 Constitution, it is provision contained in
the CCBTA that must go. So the effective age is now 18 years.
Meaning, if you have an unmarried 20 year old child you need not
declare his assets and liabilities when you are declaring yours as
a public servant.

There is also no implied inconsistency. An implied inconsistency
occurs where a provision in a law is omitted in the Constitutional
provision. For example, if you look at the above provisions
carefully, you would notice that the Constitution omits the word
‘spouse’ in defining the types of assets of family members that
should be declared together with that of the public servant. It
therefore follows that it is no longer the law that a public
servant should declare the assets and liabilities of a wife or
husband. But he/she must declare that of an unmarried child below
18 years. This seems unreasonable, but that is what a strict
interpretation of the Constitution would yield. Strict
interpretation of Constitutions can lead to unreasonable
results.

THE CONSISTENCY TEST

There are also two types of consistency. There express
consistency, where the legislation repeats the provisions of the
Constitution word for word.

And then there is also implied consistency – incorporation by
reference. This is where a Constitutional provision incorporates an
existing law by positive or specific words, the provisions of that
law are thereby preserved.

As required by the rules of Constitutional interpretation above,
the words WHERE APPROPRIATE must be given effect. This is the most
important rule of Constitutional interpretation. What is the effect
of ‘where appropriate?’ The effect is to demarcate the
circumstances where it would be appropriate to refer investigated
complaints to the Tribunal and where it would not.

The only way to give effect to these two key words is by harking
back to the CCBTA again. Where does the CCBTA say it would be
inappropriate to refer non compliance to the Tribunal? In the
proviso to Section 3(d).

If you refuse to do that you must discard two words from the
1999 Constitution or refuse to give effect to them. By doing so you
would be doing violence to the Constitution. Remember the
admonition of Hon. Justice Obaseki 39 years ago, the Courts cannot
change the words of the Constitution. Neither can you.

For those who argue that the omission of the express words in
proviso to 3(d) of the CCBTA automatically renders them
inconsistent with the Constitution, note that it makes all non
asset declaration strict liability offences.

By that reasoning Hon. Justice Tanko Mohammed who was sworn in
on Friday 25^th January 2019 by President Buhari as
acting Chief Justice of Nigeria and who swore in the Election
Tribunal Judges on Saturday 26^th January 2019 was in
breach of the law and should be removed.

Like all government offices, the Code of Conduct Bureau does not
open on Saturdays, however by swearing in members and chairmen of
election tribunal panels, Hon. Justice Tanko was performing the
functions of the office of the Chief Justice of Nigeria at a time
he had not declared his assets as ‘Chief Justice of Nigeria’.

Paragraph 11 (1) of Part 1 of the Fifth Schedule to the 1999
Constitution says “every public officer shall within 3 months after
the coming into force of this Code of Conduct or immediately after
taking office…” The Code of Conduct under the 1999 Constitution
came into force with the rest of the Constitution on May
29^th 1999. Thus 3 months after coming into force is
August 29^th 1999. So, the only other operative part of
the schedule is ‘immediately after taking office.’ Thus Justice
Tanko Mohammed is in breach of the Constitution. No High Court
registry was opened on Saturday or Friday evening for the
formalities.

These two instances [omission of the spouse and swearing
immediately after taking office] illustrate the dangers and follies
of the Strict liability approach to the Code of Conduct.

THE SCHEMATIC APPROACH

As adumbrated in the Supreme Court decision of AG BENDEL v A G
FED (above), the Constitution of the Federal Republic of Nigeria is
an ORGANIC SCHEME of government to be dealt with as an
entirety.

The Schematic Argument simply says that in interpreting a law
and more so a Constitution, you look at the scheme or overall plan.
A scheme according to the venerable Oxford Advanced Learner’s
Dictionary is a system for doing or organizing something. In this
case the Code of Conduct provisions of the Constitution are a
system for ensuring disclosure of assets of public servants and
punishing false declarations.

In order to do so, the Constitution creates two distinct bodies;
the Code of Conduct Bureau with powers of investigation but no
power of trial and the Code of Conduct Tribunal with powers of
trial but not powers of investigation.

The connection between these two bodies is paragraph 3(e) of
Part 1 of the Third Schedule to the Constitution or Section 3(d) of
the CCBTA. This gives the Bureau power to refer complaints to the
Tribunal.

Part 2 of the Fifth Schedule to the Constitution lists all the
public officers amenable to the Code of Conduct. This includes
powerful political actors like the President, Vice President,
President of Senate and deputy, Speaker of the House of
Representatives and deputy, Chief Justice of Nigeria, Governors,
etc.

But the list goes on to include all members of the armed forces
of the federation. All members and staff of the various houses of
assemblies of states and the national assembly, all members of the
police force and other government security agencies, all persons in
the civil services of the state and federation, all officers of
Nigerian missions abroad, all members and staff of all local
government councils, all members and staff of statutory
corporations at all levels, all staff of universities and all
tertiary institutions owned by government.

If you put figures to these names, you will have something like
600,000 policemen, 400,000 armed forces, over 1,000,000 civil
servants at all levels, etc. so we could be looking at nearly 4
million persons covered by the Code of Conduct provisions.

If you apply the strict interpretation and say they are all to
submit their declaration forms ‘immediately after taking office’ as
provided by paragraph 11(1) of the 5^th Schedule, that
means not less than 2 million persons would be guilty of a crime,
even if they filled the forms within weeks of taking office.

Surprisingly, given the number of potential suspects, there is
only one Code of Conduct Tribunal made up of one Chairman and 2
members for the entire Federation. Compare and contrast 
paragraph 2 of Part 1 Third Schedule of the Constitution which
gives the Bureau power to establish offices in every state of the
Federation  and paragraph 15(1) of Part 1 Fifth Schedule to
the Constitution which provides that the Code of Conduct Tribunal
shall consist of a Chairman and two other persons. There is no
provision for duplication of the Tribunal across the Federation
unlike the Bureau that Constitution expressly mandates to replicate
itself in every state, as it thinks fit.

How is this 3 man panel supposed to try 2 million persons?

It is thus clear from the schematic design of the Code of
Conduct that there must be cases where it is inappropriate to refer
the complaints to the Tribunal.

We submit that on the whole, the proviso to section 3(d) of the
CCBTA is clearly constitutional.

All I ask is whoever wishes to argue contrary should at least
give effect to two Constitutional words “where appropriate” in
paragraph 3(e) of Part 1 of Third Schedule of the Constitution, or
let her cease forever.

Emmanuel Jakpa, wrote in from Warri and can be
reached at japsmanuel@gmail.com.