An Apraisal Of The Proviso To Section 3 (D) Of The Code Of Conduct Bureau And Tribunal Act And The Constitution By U.O Erinle – TheNigerialawyer

It is an axiomatic fact that one of the most innate and
cancerous problems In Nigeria today is corruption. You will agree
with me that  this logjam(corruption) has been the order of
the day right from the birth of the giant of Africa and has 
become so pandemic that it has dug deep into the fabrics of various
institutions in the country- social, economic, political,
educational, legal, etc.

Public officers, in fact, are said to be the most vulnerable
citizens to the waves of this churlish phenomenon. Thus, this
stimulated the enactment of the Code of Conduct Bureau and Tribunal
Act (hereinafter referred to as The Act) in 1991
by the Babangida led administration.

The Act is established to provide for the establishment of the
code of conduct bureau and tribunal to deal with the complaint of
corruption by public servants for the breach of its provision. It
aimed to establish and maintain a high standard of public morality
in the conduct of government business and to ensure that the
actions and behavior of public officers conform to the highest
standard of public morality and accountability (see section 2 of
The Act). In other to achieve this aim, The Act did not only
establish a code of conduct tribunal with the power to hear and
determine the breach and non compliance with the The Act (see
section 20 and 21 of The Act), but also established a body known as
the CODE OF CONDUCT BUREAU.

The functions of this bureau are enumerated under section 3 of
the Act but the function which is quite relevant here is section
3(d) which reads thus;

3d) receive complaint about non compliance with or
breach of this act and where the Bureau considers it necessary to
do so, refer such complaint to the code of conduct tribunal
established by Section 20 of the Act in accordance to section to
the provision of the section 20 and 25 of this 
Act:

Provided that where the person concerned makes a written
admission of such breach or non –compliance, no reference shall be
necessary.

The Act remains laudable for it houses overwhelming and
surmountable provisions. However to what extent can it maintain its
laudability? To my  mind, to the extent of it not contravening
the provisions of the the supreme law of the  land; the
constitution and In this case, The Constitution of the Federal
Republic of Nigeria 1999( as altered) (hereinafter referred
to as The Constitution) for the constitution is the
supreme law of the land and if any law is inconsistent or
contravene the provisions of the constitution, such law is liable
to scream for survival in the abyss of voidability, nullity and
unconstitutionality. See the cases of NURA OCAHALA VS FRN
suit No: SC. 728/2013, INEC VS MUSA(2003)3NWLR PT
806 pg 72. Also relevant is section 1 of The
Constitution.

Having this in mind, the appraisal of the  proviso to
Section 3(d) is compelling. To do this, the pertinent question that
begs for answer is worded thus:  IS THE PROVISO TO
SECTION 3D TO THE CODE OF CONDUCT TRIBUNAL ACT
CONSTITUTIONAL?

By  section 4 of The Constitution, the National Assembly is
empowered to make law for peace, order and good government.
According to Dr. Sambo A.O.(a lecturer in the Department of Public
law, Faculty of Law, University of Ilorin, during a constitutional
law class in 2018), the phrase” for the peace order and good
government” Is incorporated to express the widest amplitude of the
extent of the legislative powers. As wide as this power is however,
it is not devoid of circumscription. Thus, One of those limitations
can be seen in section 4(8) of The Constitution. The provision is
reads;

“save as otherwise provided by this constitution… and
accordingly, the National Assembly shall not enact any law, that
oust or purport to oust the jurisdiction of a court of law or
of a judicial tribunal established by law” ( italics
mine)

The import of the above provision is that the National Assembly
are restricted from making any law that will expressly or impliedly
preclude a court of law or any judicial tribunal established by law
from exercising the jurisdiction given to it by  the
constitution or law.

Premised on the above, it is my humble opinion that the proviso
to section 3(d) of The Act purports to oust the jurisdiction the
Code of conduct Tribunal and as such is unconstitutional, null and
void. For ease of reference and clarity, I deemed it fit to
reproduce the proviso and demystify the the words; oust, purport
and jurisdiction.

The proviso reads thus;

Provided that where the person concerned makes a written
admission of such breach or non –compliance , NO REFERENCE
SHALL NOT BE NECESSARY.( italics mine)

From the stable of Bernard Garner’s BlacksLaw  Dictionary,
OUST is defined to mean “ To force ( a person) from a position of
power for the purpose of serving as a replacement”.
JURISDICTION  is defined  by the same dictionary to mean
“the court’s power to decide a case or issue or decree  while
PURPORT by the English Dictionary, in its verbatical form, is
defined to mean “ TO INTEND”.

Based on the foregoing, it is my humble submission  that
this proviso intends to force the tribunal from the power 
invested in it by The Act to hear and determine the breach or
non-compliance with The Act  by replacing with a written
admission. This intention can be discerned from this assumption:
let’s  say the person concerned has made a written admission
but, the bureau goes further to make reference to the code of
conduct tribunal and the person concerned raised the defence that
he has already admitted in writing. What is expected of the
tribunal?  To strike the case out  for it is not
necessary in view of the compellable nature of the proviso even if
there it glaring that the person actually breach or did not comply
with the code.

Alternatively, it is my view also that the proviso is
inconsistent with the provision of the constitution. The reason
being that in the case of INEC VS MUSA, the
Supreme court was of the view that a law is not only inconsistent
with the provision of The Constitution where it goes contrary to it
but also if it competes with its provision in an area it has
already covered. Thus, on a legal foray through the constitution,
particularly the 3^rd schedule to The Constitution;
paragraph 3 which exhaustively  enumerate the functions of the
CODE OF CONDUCT BUREAU, the paragraph  does not contain what
the proviso in question reads despite the fact that it has the
provision similar to that of section 3(d). Based
on this, the proviso is inconsistent with the provision of the
constitution and as such null and void pursuant to section
1(3) of the constitution.

In conclusion, I am of the opinion that the proviso to the
section 3(d) of the code of conduct tribunal Act is
unconstitutional, null and void for it purports to prevent the code
of conduct tribunal from exercising their power to  hear and
determine cases relating to the breach or Non compliance with
the  Act, when the person who breaches the provision of the
Act makes a written admission to that effect.

Written By U.O Erinle, A 300 LEVEL LAW STUDENT OF FACULTY LAW,
UNIVERSITY OF ILORIN