Introduction
“An intention to legislate in contravention of the
Constitution should not be imputed to the law-maker. Where an
enactment can be construed and can operate as not to be
inconsistent with the Constitution, such construction and manner of
operation should be preferred to any other construction that would
lead to inconsistency”. – Per Ayoola J.S.C in
Okeahialam v. Nwamara (2003) 12 NWLR (Pt. 835)597
Section 3(d) of the Code of Conduct Bureau and Tribunal Act,
(hereafter CCBT Act) with its proviso, that once a public officer
admits in writing his/her non-compliance and breach of the asset
declaration requirements of the Constitution and Act, it will no
longer be necessary to refer the complaint to the Code of Conduct
Tribunal (hereafter CCT) , has lately generated a lot of
commentary. Most commentators have concluded that this section and
its proviso is unconstitutional based on the doctrine of “covering
the field”, a principle in constitutional law that invalidates a
subsidiary or inferior law, where a superior law, has covered the
same field as the inferior law. The Court of Appeal (hereafter CA)
has also adopted this position, in the case of Dr Olubokola Saraki
v. FRN CA/A/172C/2016
In the case of FRN v Dr Olubukola Saraki Charge No.
CCT/ABJ/01/2015, the defendant raised an objection before the CCT
based on this section, asking the CCT to apply the precedent it had
established in the case of FRN v. Bola Ahmed Tinubu Charge No.
CCT/ABJ/01/11/11, where it upheld the objection of the defendant,
that failure to invite him to admit or deny the alleged infraction
of the Asset declaration requirements of the Code of Conduct for
Public Officers, was a failure to comply with a condition precedent
for referring the matter to the CCT. The Tribunal overruled the
objection, remarking that the CCT had since the case of FRN v. Emil
Lemke Inyang Charge No. CCT/ABJ/02/2012 realized that the decision
in FRN v. Bola Ahmed Tinubu (supra), was decided per incuriam in
ignorance of paragraph (3)(e) of Part 1 of the Third Schedule to
the Constitution, which is the guiding law on the subject matter.
The Senate President’s appeal to the CA on that point was
unsuccessful as the CA upheld the decision of the Tribunal. The
Senate President did not appeal further on that point to the
Supreme Court (hereafter SC) and as such the apex Court did not
have an opportunity to examine this question in the light of its
copious pronouncements on the proper application of the doctrine of
“covering the field”
The pressing need for this comment on the question of the
validity of this impugned section, is the implication of the
invalidity of the section that the National Assembly (hereafter NA)
cannot amend this provision of the CCBT Act without amending the
Constitution.
To the best of my knowledge, there have been three attempts so
far to amend the CCBT Act, with each amendment affecting the said
section 3(d). Two of these proposed amendments were in 2009,
sponsored by Senators Smart Adeyemi and Patricia Naomi Akwashiki,
while the last one was sponsored by Senator Nwaoboshi in 2016. The
proposed 2016 amendment sparked off so much public outrage as it
was perceived in many quarters as a ploy to shield the Senate
President from the CCT trial. A letter written to the speaker,
Honorable Yakubu Dogara by the learned senior advocate Femi Falana,
highlighted this position that the said section of the CCBT Act was
inoperative and cannot be validly amended without first amending
the constitution. Some NGOs even petitioned the United Nations to
stop the amendment.
This record of unsuccessful attempts to amend this section
demonstrates that apparently this section, has proved to be
troublesome in its application and the NA recognizes this problem
but has been hindered from amending the said section by the opinion
that the amendment of the section is impossible except the
Constitution is amended. Despite our position that using the golden
rule, it is possible to interpret this section in a manner that
will make it consistent with the Constitution, it is apparent from
pure common sense and a comparison of identical provisions in the
laws of the few African States that provide for a Code of Conduct,
that there is a lacuna in this section and as such it requires
amendment by the NA or at least a definitive and authoritative
interpretation by the Supreme Court to fill in the gaps.
Without prejudice to the decision of the CA which remains the
substantive law on the issue, unless or until it is set aside by
the Supreme Court, with utmost respect to the appellate court, it
appears that the CA, in arriving at its decision concerning the
validity of the said section, did not advert its mind to the
discretionary nature/aspect of the power conferred on the Code of
Conduct Bureau (hereafter CCB) under the said paragraph of the
Constitution, and its effect on the question of whether the
Constitution had completely and exhaustively legislated on the
issue of the discretionary power granted to the CCB to refer
complaints to the CCT, “where appropriate”.
It thus failed to consider whether the impugned section of the
CCBT Act could have been interpreted as an attempt by the National
Assembly to define the nebulous constitutional standard “where
appropriate”, to mean “where the Bureau considers it necessary”,
but with the exception that where a Public Officer admits the
alleged breach in writing, it will no longer be appropriate to
refer the matter to the Tribunal, because referring the matter is
no longer necessary in that instance”
The need to consider this possible interpretation is imperative
in the light of the fact that the dictionary meaning of
“appropriate” is “suitable or right for a particular situation or
occasion”, while necessary means “needed in order to achieve a
particular result”, or “needed to be done, achieved, or essential”.
This implies that the Act is thereby defining situations when it is
appropriate to refer a complaint to the CCT to be situations where
the Bureau has fully considered whether it is necessary to do so.
In the light of universal administrative law principles and grounds
for judicial review this is more or less codifying the requirement
that the Bureau must take into consideration what is needed to
achieve the primary objective of the Code of Conduct which is
discouraging a Public Officer from placing himself in a position
where his personal interest conflicts with his duties and
responsibilities, and not irrelevant considerations, before making
a referral. Thus, the proviso can be interpreted as setting down an
exception as to when it is not necessary for the purpose of
achieving the objective of the Code of Conduct, to refer a
complaint to the CCT. We will discuss this further when we begin a
discussion of the possible interpretation of this proviso and the
perceived lacuna in this proviso, in the light of other Code of
Conduct legislations and rules of statutory interpretation.
Furthermore, the phrase “where appropriate” does not state the
person or persons responsible for determining where it is
appropriate to refer the matter to the CCT, nor what considerations
should guide such a determination. As such a person or institution
external to the CCB can make such a determination and impose it on
the CCB or a single member of the CCB may unilaterally so decide,
or the CCB may even consider irrelevant factors like political
considerations or exercise the power for irrelevant purposes like
victimizing an individual without the decision being questioned in
a court of law. However, the CCBT Act in line with global
administrative principles that abhor unfettered discretion has
under the impugned section 3(d) regulated, streamlined and
canalized this discretionary power of referral and reduced the
possibility of abuse of such powers. We will discuss this in detail
when we examine the relevant administrative law principles
regulating exercise of discretionary power and judicial review.
The CA in Saraki’s case held inter alia that,
“While section 3 of Code of Conduct Bureau and Tribunal Act
FEEBLY said: “The function of the Bureau shall be to – Receive
complaints…” Paragraph 3 of the Third Schedule begins in COMMANDING
TONE thus: “The Bureau shall have power to: – (a) receive
declarations….” This is all encompassing, and I am certain in my
mind that the proviso to section s(d) of CCBT Act cannot operate to
cut down or whittle down the clear provisions of the Third Schedule
of 1999 Constitution which gives power to the Bureau and Code of
Conduct. The 1999 Constitution did not give any room for subversion
of the provisions relating to Code of Conduct for Public
Officers.
Without immediately going into the analysis of the judgment, we
will immediately remark that the CA, in dwelling on the feeble
versus commanding tones of the Act and the Constitution, took its
attention off the more important issue of whether a duty coupled
with a discretion and vaguely defined by the phrase “where
appropriate”, can be said to have been cut down or whittled down by
a subsequent act which can be interpreted as defining and
canalizing the phrase “where appropriate” and excluding instances
where it is not “appropriate” to exercise the discretionary
power.
Thus, it would have been relevant to first determine whether the
power granted by the constitution to the CCB, is an absolute power
whose boundaries must not be defined by the National Assembly, or
whether it is partly discretionary and thus subject to regulation
by standards and procedural safeguards as defined by the National
Assembly in exercise of its power to legislate for the peace, order
and good governance of the nation or under its reserved power under
paragraph 3(g) of Part 1 of the 3rd Schedule to the 1999
Constitution to confer additional functions on the CCB.
It would have also been necessary to determine whether the
reserved powers of the NA under paragraph 3(g) of Part 1 of the 3rd
Schedule to the 1999 Constitution or its general legislative powers
under section 4(2) and 4(4b) of the Constitution is not sufficient
empowerment for it to so define and set standards for the
discretionary power conferred on the CCB by the Constitution.
Other relevant holdings of the Court in respect to the
constitutionality of the impugned section will be addressed in
subsequent parts of this article.
- SUPREME COURT GUIDANCE ON THE DOCTRINE OF COVERING THE
FIELD
In order to set the stage for the discussion to follow, I will
reproduce various statements of principles laid down by the Supreme
Court for determining whether the Constitution or a superior law
has covered a field which a subordinate law is purporting to
legislate on. These pronouncements will show that a law is not
automatically declared inconsistent merely because it deals with
the same subject matter as the Constitution or the superior law,
but there are tests which the court must conduct before it can
arrive at such a conclusion.
INEC V MUSA (2003) 3 NWLR (Pt.806)72
“I take as my starting point some interrelated propositions
which flow from the acknowledged supremacy of the Constitution
and by which the validity of the impugned provisions will be
tested. First, all powers, legislative, executive and judicial must
ultimately be traced to the Constitution. Secondly, the legislative
powers of the legislature cannot be exercised inconsistently with
the constitution. Where it is so exercised it is invalid to the
extent of such inconsistency. Thirdly, where the constitution HAS
ENACTED EXHAUSTIVELY in respect of any situation, conduct or
subject, a body that claims to legislate in addition to what the
constitution had enacted MUST SHOW THAT IT HAS DERIVED THE
LEGISLATIVE AUTHORITY TO DO SO FROM THE CONSTITUTION. Fourthly,
WHERE THE CONSTITUTION SETS THE CONDITION FOR DOING A THING, no
legislation of the national assembly or of a state house of
assembly can alter those constitution in any way, directly or
indirectly, UNLESS, OF COURSE THE CONSTITUTION ITSELF AS AN
ATTRIBUTE OF ITS SUPREMACY EXPRESSLY SO AUTHORISED.
Although the Constitution does not state that an Act of the
National Assembly cannot duplicate the provisions of the
Constitution, by judicial interpretation, verging on policy, the
consequence of such duplication has been variously described as
“inoperative”, “in abeyance”, “suspended”… HOWSOEVER IT IS
DESCRIBED, WHERE THE CONSTITUTION HAS COVERED THE FIELD AS TO
THE LAW GOVERNING ANY CONDUCT, THE PROVISION OF THE CONSTITUTION IS
THE AUTHORITATIVE STATEMENT OF THE LAW ON THE SUBJECT. – Per Ayoola
J.S.C (capitalization supplied for emphasis)
In its practical application of this doctrine in the case of
INEC v Musa (supra), the Supreme Court had this to so say
“The word “exhaustive” simply means complete. Are the six
conditions provided for in section 222 exhaustive or complete of
all situations in respect of recognising political associations as
political parties? THAT IS THE FUNDAMENTAL
QUESTION. I do not think so. In the first place,
it is not the role of a Constitution to provide for all conditions
and situations in respect of the recognition of political
associations as political parties. The Constitution, the fons
et origo of the legal system, cannot provide for all
conditions and situations in respect of recognition of political
associations as political parties.
With the greatest
respect to Chief Fawehinmi, the conjunction “unless” does not mean
that the conditions are exhaustive. In my view, the conditions set
the constitutional standard which must be fulfilled before a
political association can be recognised as a political party.
Nothing stops the National Assembly to use its powers to
enact an Act, which confers on the 1st appellant the power to make
any regulations or guidelines which add to or edify the conditions
spelt out in section 222. The only time the courts will raise their
eyebrows is when the regulations or guidelines made under an Act of
the National Assembly are inconsistent with the six conditions set
out in section 222. It is my view that while section 222
sets out constitutional conditions, the 1st appellant can make
guidelines under section 162 of the Electoral Act in respect of
issues of administration on the registration of parties. The
constitution would not have ‘covered the field’ WHERE IT
HAD EXPRESSLY RESERVED TO THE NATIONAL ASSEMBLY OR ANY OTHER
LEGISLATIVE BODY THE POWER TO EXPAND ON OR ADD TO ITS PROVISIONS IN
REGARD TO THE PARTICULAR SUBJECT.” – Per Niki Tobi J.S.C
(capitalization supplied for emphasis)
A.G OGUN STATE V. A.G FEDERATION (1982) 1-1 SC
(REPRINT)
On questions of inconsistency the Apex Court has stated
“…if no general intention to cover the entire field on
the subject can be gathered from the Federal Law, then the mere
concurrence of the two laws (i.e. the Federal and the State Laws)
on the subject is not eo ipso an inconsistency although
the detailed rules in the provisions of both laws may lead to
different results on the same facts; and in the words of
Colin Howard with which I respectfully agree “unless the two rules
actually contradict one another it is a question of legislative
intention,………to be inferred from the legislative context, whether
the laws in question complement one another or are inconsistent ”
–Per Idigbe J.S.C.
“Inconsistency”, in law, to me, can be taken to be a situation
where two or more Laws, enactments and or rules, are mutually
repugnant or contradictory, contrary, the one to the other SO THAT
BOTH CANNOT STAND AND THE ACCEPTANCE OR ESTABLISHMENT OF THE ONE
IMPLIES THE ABROGATION OR ABANDONMENT OF THE OTHER. IT IS THUS, A
SITUATION WHERE THE TWO OR MORE ENACTMENTS CANNOT FUNCTION TOGETHER
SIMULTANEOUSLY. The Constitution does not tolerate that.
In ISHOLA V. AJIBOYE(1994) 7-8 SCN (part 1) 1, this court held
that the Constitution is not only supreme when another law is
inconsistent with it, but also when another law seeks to compete
with it in an area already covered by the Constitution.…THE
CONSTITUTION MAY, SOMETIMES, ALLOW THE NATIONAL ASSEMBLY OR EVEN
STATE HOUSE OF ASSEMBLY TO ENACT A LAW IN ADDITION TO WHAT THE
CONSTITUTION HAS PROVIDED FOR. In that case, the
legislature concerned (State or Federal) must prove that in
enacting those additional provisions, it derives its authority from
the Constitution. See: INEC v. MUSA (Supra). (ii) MINUTE
DETAILS ARE NOT TO BE NECESSARILY FOUND IN THE CONSTITUTION. THE
CONSTITUTION PROVIDES OUTLINES, LEAVING THE FILLING-UP OF THE GAP
TO BE DEDUCED. THIS MEANS THAT FEDERAL OR STATE ENACTMENTS CAN BE
MADE TO FILL IN SOME PROVISIONS IN THOSE
OUTLINES. Per I. T. MUHAMMAD, J.S.C Hon. Minister for
Justice and Attorney-General of Federation v. Hon. Attorney-General
of Lagos State (2013) LPELR-20974(SC) (Capitalization supplied for
emphasis)
These laid down principles raise fundamental questions like
- Whether the constitution completely and exhaustively provided
for the situations when the CCB can refer complaints to the CCT and
thus precluded the National Assembly from making any law to guide
this discretionary power. - whether the constitution is expected to provide for all the
conditions and situations for the exercise of a discretionary power
or whether the National Assembly under its express power to confer
further functions on the CCB, or under its general powers to make
laws for the peace, order and good government of the nation, in
relation to its power to confer further functions on the CCB, may
enact an Act to define the limits and procedural safeguards for the
exercise of this discretion. This, in order to avoid arbitrariness
by the CCB and also minimize the cost of its operation and ensure
that the main objective of setting up the body which is to curb
corruption and ensure that a Public Officer does not put himself in
a position where his personal interest conflicts with his official
functions is achieved. - Thus, even if the said section of the CCBT Act is caught by
either direct or indirect inconsistency, is it really the correct
position of the law that the National Assembly cannot make a law
that defines the limits of the powers of the CCB, set out in the
constitution, especially where in this case, the power is also a
duty coupled with a discretion?
It is our position that under the universal principles of
administrative law and the express provisions of the 1999
Constitution (sections 4(2), 4(4b), 15(5), and items 60(a) and 67,
68 Exclusive Legislative List,), the National Assembly is empowered
to make laws for the peace and good government of Nigeria and this
includes the power to define how a discretionary power conferred by
the constitution is to be exercised to avoid arbitrariness and
abuse of power. Furthermore, the power expressly reserved to the
National Assembly under paragraph 3(g) of Part 1 of the 3rd
Schedule to the 1999 Constitution to confer further functions on
the CCB can be read to imply the power to define the limits of the
discretionary functions of the CCB which is incidental or
supplementary to the exercise of its discretionary power of
referring complaints to the CCT.
The decision of the Australian Courts in Ansett Transport
Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237, 253
which though not dealing with discretionary power dealt with an
issue of a qualified power may be apposite here. In Ansett’s case
the argument of the inconsistency was based on the fact that the
Commonwealth law the Airline Pilots Agreement 1978 conferred upon
Ansett, as employer, a right to dismiss an airline pilot and the
Equal Opportunity Act 1977 (a Victorian Act) purported to reduce
that right. It was also argued that the Agreement had been intended
as an exhaustive and exclusive statement, or had covered the field,
of the rights and obligations of employers and their pilot
employees and the Victorian Act attempted to enter on that field.
The Court by a majority held that there was neither direct nor
indirect consistency between the laws. The majority held that there
was no inconsistency because the Agreement had not been intended to
give to the employer an unqualified right to dismiss nor had it
been intended to cover the field of dismissal: rather, it had been
intended to deal with the procedure to be followed when an employer
exercised its right to dismiss, a right which flowed from and could
be modified by the general law.
Equally, since the power conferred by the constitution on the
CCB is a discretionary power, the constitution has not covered the
field and therefore the relevant question is not about the indirect
inconsistency implicit in the idea of covering the field but rather
a question of whether there is a direct inconsistency in the text
of the two provisions.
We will further consider the possibility that there is a direct
inconsistency in the two provisions. However, we are of the opinion
that there is none, and that the CCB/T Act does not curtail or
alter the powers granted under the Constitution but merely defines
them and provides an exception to its exercise which can still be
justified as a definition of the discretionary condition “where it
is appropriate”, which also connotes the converse “where it is not
appropriate”. However, in line with the decision of the SC in
Okeahialam v. Nwamara, this proviso must be interpreted in such a
way as to be consistent with the constitutional intention and
purpose for setting up the CCB which is to fight and eradicate
corruption in the Public Service.
That attempt at finding an appropriate interpretation of the
Proviso may reveal that there is a lacuna in the impugned provision
which is a slight rewording of the provision of paragraph 15(1) of
the 5th Schedule to the 1979 Constitution on the powers
of the CCB. This lacuna will be apparent when we consider identical
provisions of the few states in Africa that make provisions for
Code of Conduct for Public Officers. This will further buttress the
need for the amendment of the said section to remove these
ambiguities. Some of the attempted amendments by the National
Assembly which were scuttled had attempted to resolve this and we
will return to that subsequently.
- DISCRETIONARY POWERS OF THE ADMINISTRATION AND ITS
STATUTORY AND JUDICIAL REGULATION
According to Prof. Freund, “A statute confers discretion when it
refers to an official, for the use of his power to beliefs,
expectations or tendencies or to such terms as ‘adequate;,
‘advisable’, ‘appropriate’, ‘beneficial’, ‘competent’,
‘convenient’, ‘detrimental’, ‘expedient’, ‘equitable’, fair’, fit’,
‘necessary’, “practicable’, ‘proper’, ‘reasonable’, ‘reputable’,
‘safe’, ‘sufficient’, ‘wholesome’, or their ‘opposites’. These lack
the degree of certainty belonging even to such difficult concept as
fraud or discrimination or monopoly”
(Continued in Part 2)
Nonso Robert Attoh is a law lecturer and writes from Enugu,
Nigeria