Itse Sagay (SAN) on Thursday asked senior lawyers to stop
misleading the public with lies that Chief Justice Walter Onnoghen
is not a public officer and subject to the code of conduct.
He condemned the “fraudulent misconduct of some crooked lawyers”
who he said have been lying “glibly” on television that judicial
officers are not public officers.
Sagay referred to Part 2, paragraph 5, Fifth Schedule of the
1999 Constitution, which defines a public officer thus: “Public
Officers for the Purposes of the Code of Conduct:…(5) Chief Justice
of Nigeria, Justice of the Supreme Court, Presidents and Justices
of the Court of Appeal, all other Judicial Officers and all Staff
of Courts of Law.”
Sagay said: “You can now see that these lawyers, senior
advocates and all have been indulging in monumental lies on
television, misleading the public.
“Another major lie is that a public officer, who commits a
breach of the Code of Conduct by failing to declare some of his
assets, is free from liability, provided he makes a written
admission of such breach or non-compliance. For this, they rely on
the proviso to Section 3 of the Code of Conduct Bureau and Tribunal
Act 1989.
“However, if one refers to the provisions of the Constitution,
there is no such exemption from punishment. I refer specifically to
the 5th Schedule Part 1, Paragraph 18 of the Constitution. That
paragraph provides for the punishment for a breach of the Code of
Conduct.
“These punishments are: (a) vacation from office, (b)
disqualification from holding office for 10 years, (c) seizure and
forfeiture to the state of any property acquired in abuse or
corruption of office.
“There is absolutely no proviso whatsoever to the effect that an
admission in writing of the offence will relieve the public officer
of liability from punishment.
“On the contrary, paragraph 18(3) goes further to state that the
three punishments listed above are without prejudice to the penalty
that may be imposed by any law where the conduct is also a criminal
offence.”
Sagay said there was, therefore, a clear conflict between the
provision of the Code of Conduct Bureau and Tribunal Act and the
1999 Constitution.
According to him, where there is a clash between the
Constitution and any other law, Section 1(3) of the Constitution
provides that the “Constitution shall prevail, and that other law
shall to the extent of inconsistency be void”.
Besides, Sagay said where there is conflict between two pieces
of legislation covering the same matter, the latter in time
prevails.
“The Code of Conduct Bureau and Tribunal Act were enacted in
1989. On the other hand, the present Constitution took effect from
1999. So either way, the provisions of the Constitution prevail
over the Code of Conduct Bureau and Tribunal Act.
“It can, therefore, be seen that there is no exemption from
punishment whatsoever for a public officer who admits his guilt
with regard to a breach of the Code of Conduct.
“One other opportunistic matter that the defenders of the Chief
Justice are now raising, is the query that if the EFCC could
petition the National Judicial Council (NJC) regarding the $30, 000
allegedly deposited in the Chief Justice’s Bank account, why was
the earlier matter of the failure to fully disclose his assets not
sent to the NJC?
“The answer is simple for anyone thinking in good faith. The
non-declaration of assets is Constitutional and mandatorily a
matter for the Code of Conduct Tribunal exclusively.
“On the other hand, payment by a lawyer into the account of a
judge including the Chief Justice constitutes an offence committed
by the judge as a judicial officer. Therefore, that matter
according to the wrongly decided Nganjiwa’s case, goes to the
NJC.
“Failure to declare assets is not an offence committed in the
process of Judge’s activities as a judicial officer.
“Therefore, any complaint arising from such matter does not go
to the NJC but to the Code of Conduct Tribunal (in cases of
non-declaration of assets) or the ordinary Courts in other cases,”
Sagay said.