REGULATION OF THE DISCRETIONARY POWERS OF THE ADMINISTRATION
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”
Discretion has been defined severally in judicial decisions. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977), Lord Diplock stated:
“The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred”
According to Lord Halsbury L.C in Sharp v. Wakefield, 1891 AC 173, “Discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular and it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”
Justice Douglas in United States v Wunderlich 342 US 98, 101 (1951) remarked that “where discretion is always absolute, man has always suffered, … Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”
The need to protect individual freedom and ensure that exercise of discretion is according to the rules of reason and justice, legal and regular, and not arbitrary, vague and fanciful but according to law, influenced Dicey in his exposition of the rule of law, to propound the necessity to curb the conferral of discretionary power on government officials and to insist on strict regulation of discretionary power. He opined that the exercise of power should be authorized by clear legal rules. According to him, the rule of law means in the first place “…the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excluded the existence of arbitrariness, of prerogative or even a wide discretionary authority on the part of the government ….”
Even though the absolute abhorrence of discretionary power as canvassed by Dicey has given way to the practical need to confer discretion on the administration in order to meet the demands of modern society, the understanding that arbitrary power is antithetical to democratic tenets or the government of laws still prevails. Thus, Davis and many other academic commentators have advanced the opinion that unnecessary discretionary power shall be confined, structured and checked. Wade also commented that “in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn…” According to the Supreme Court of India, “In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law…” (E.P Royappa v. State of Tamil Nadu 194 4 SCC 3 ) and “A provision which leaves an unbridled power to an authority cannot in any sense be characterized as reasonable” (Lala Hari Chand Sarda v. Mizo District Council 1967 SCR (1)1012).
This understanding undergirds the power of judicial review reposed in the Courts which according to Brennan J. in Church of Scientology v. Woodward (1982) 154 CLR 25,70, “is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly”, and as such “is neither more nor less than the enforcement of the rule of law of executive action.”
There are numerous cases under common law which illustrate that unfettered discretion is frowned upon in a democratic or constitutional system Thus, in the celebrated case of Padfield v Minister of Agriculture, Fisheries and Food, (1968) 1 All ER 94 – Lord Reid had recognized that no matter how liberal the language of the statute that confers a discretionary power, the exercise of such discretionary power is subject to judicial review where it is exercised contrary to the object and policy of the statute.
Under Common law, there is a duty to exercise discretion in good faith, uninfluenced by irrelevant considerations or motives, reasonably and within the statutory bounds of the discretion. This provides a general ground for review of discretion This was stated by Lord Denning as follows:
“Undoubtedly those statutory provisions give the Minister a discretion as to the issue and revocation of licences. But it is a discretion which must be exercised in accordance with the law, taking all relevant considerations into account, omitting irrelevant ones, and not being influenced by any ulterior motives (Congreve v. Home Office,  1 Q.B. 629 at 649,).
It is our opinion that the legislature in promulgating the CCBT Act made an attempt to legislate in section 3(d), on a relevant consideration which the Bureau must consider in deciding whether it is necessary to refer a complaint to the Tribunal. We however recognize that the attempt to do so reveals a lacuna which may serve to defeat the intention of the legislators if the proviso is interpreted literally. We will return to this concept of “irrelevant consideration” as a ground for judicial review subsequently.
In many jurisdictions there is a statutory recognition that there is a primary responsibility on the legislature to, at the minimum, articulate statutorily the intent, purpose, policy and objective of discretionary power, in order to avoid administrative arbitrariness and despotism. Such policy is usually followed up with guidelines, procedural safeguards or objective standards to regulate the exercise of such discretion which will sustain the legality of discretion.
According to a commentator, “…Although there is no objection to the practice of entrusting the instrumentalities of administration with a discretionary authority to insure the complete effectuation of the legislative policy, this authority conferred by the legislature must include the establishment of a criterion to prevent the arbitrary or capricious exercise”.
The German concept of external and internal limits of discretionary powers is equally illustrative of this idea. The external limits set the area beyond which the public administration remains closely bound by law and this includes norms defining powers, procedure and substantive legal conditions for action. Exceeding discretionary powers thus refers to crossing the external borders.
In India, the Supreme Court has held that “The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits… (Jaisinghani v India AIR 1967 SC 1427). It has further remarked that a regulation empowering the authority with uncanalized and unguided discretion ought to be struck down (Air India v. Nargesh Mirza AIR 1981 SC 1829, para. 71).
Justice G. P. Singh, in “Principles of Statutory Interpretation” stated that “power conferred by a statute must contain express condition for its exercise enunciating clear-cut purpose for which discretion has been conferred upon the administrative authority. The statutory procedure laid down for the regulation of discretion need to be clear-cut and sufficient to assure that discretion is used for the purpose in the same letter and spirit as contained in the statute”
The 1993 Ghanaian Constitution, entrenches this administrative/constitutional law requirement to regulate the exercise of discretion in its section 296 as follows;
“Where in this Constitution or in any other law discretionary power is vested in any person or authority – (c) Where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this constitution or that other law to govern the exercise of the discretionary power.
The above discourse is geared towards demonstrating that universally, it is within the powers of the legislative body to define the limits of any discretionary power granted to administrative bodies, whether the discretionary powers are granted under the Constitution or other statutory instruments. Indeed, there is a duty imposed on them to do so in order to avoid administrative despotism or arbitrariness. We are of the opinion that there are ample provisions under the 1999 Constitution which empower the National Assembly to define such limits and to prescribe procedural safeguards for the exercise of discretionary power. As pointed out by Professor Freund, the words used in conferring discretionary power like “where appropriate”, “lack the degree of certainty belonging even to such difficult concept as fraud or discrimination or monopoly”. Therefore, there can be no question of the legislature having legislated exhaustively or completely in this regard.
THE POWER OF THE NATIONAL ASSEMBLY TO DEFINE THE LIMITS OF DISCRETIONARY POWER CONFERRED ON THE CCB
It is our opinion that even though our constitution unlike the Ghana Constitution does not include a provision requiring the exercise of discretionary power to be streamlined by laws regulating the exercise of the discretion, there are provisions in the 1999 Constitution that extends the powers of the National Assembly to cover such legislations. And therefore, there is a constitutional duty and power imposed and reposed on the National Assembly to make a law defining the grounds for the exercise of the power conferred by the Constitution on the CCB to refer complaints to the CCT. Section 3(d) of the CCB/T Act is such a law and despite the lacuna in that provision, is not invalid and can be interpreted authoritatively by the Court to comply with the objective of promulgating the Code of Conduct for Public Officers, to suppress the mischief and advance the remedy. Even more fundamental to the national interest, is the recognition that the National Assembly is perfectly within its powers to amend the section to fill up the lacuna or even make a more detailed law within the provisions of the 1999 Constitution to regulate the powers of the CCB.
The authority of the Supreme Court on which we will predicate the examination of the Constitution is the following principle, contained in various decisions of the Court
“…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 … (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 in Hon. Minister for Justice and Attorney-General of Federation v. Hon. Attorney-General of Lagos State (2013) LPELR-20974(SC).
The relevant legislative powers of the National Assembly are as set out below:
Section 4 (2) 1999 Constitution – The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
Item 60(a) Exclusive Legislative List – The establishment and regulation of authorities for the Federation or any part thereof – (a) To promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution;
Section 13 1999 Constitution (Fundamental Objectives and Directive Principles) – It shall be the duty and responsibility of all organs of government, and of all authorities and persons exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this chapter of this constitution.
Section 14(1) 1999 Constitution – The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice
Section 15(5) 1999 Constitution – The State shall abolish all corrupt practices and abuse of power.
Item 67. Exclusive Legislative List – Any other matter with respect to which the National Assembly has power to make laws in accordance with the provisions of this Constitution.
Paragraph 3(g), Third Schedule Part I 1999 Constitution – The Bureau shall have power to: (g) carry out such other functions as may be conferred upon it by the National Assembly.
Item 68 – Exclusive Legislative List – Any matter incidental or supplementary to any matter mentioned elsewhere in this list.
Section 4(4)(b) 1999 Constitution – In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say-
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
Paragraph 3, Third Schedule Part I 1999 Constitution – The Bureau shall have power to: (g) carry out such other functions as may be conferred upon it by the National Assembly.
section 318(1) of the 1999 Constitution (interpretation section) “In this Constitution unless it is otherwise expressly provided or the context otherwise requires, “function” includes power and duty; and “power” includes function and duty;”.
Having established that one of the central idea of the rule of law as expounded by A.V Dicey and confirmed by contemporary developments is to reject the idea of arbitrary exercise of unfettered discretion or power, and that the existence of unfettered discretion is antithetical to the idea of democracy and is just the avenue for breeding abuse of power and administrative despotism, it stands to reason that the legislative powers of the National assembly extends to making laws to regulate the exercise of discretion whether they are granted under the Constitution or in a separate statutory instrument.
Thus, the duty and power of the National Assembly to make laws for the peace, order and good government of Nigeria in regulating authorities for the Federation or any part thereof – (a) To promote and enforce the observance of the Fundamental Objectives and Directive Principles, is a power to make laws to promote and enforce the principles of democracy and social justice and abolish all corrupt practices and abuse of power. The CCB is such an authority subject to regulation by the National Assembly. This power is to be exercised by defining and providing guidelines for the exercise of discretionary power whether granted under the Constitution or under a separate statutory instrument in order to bring it in line with the principles of principles of democracy and social justice and abolish abuse of power.
Equally, the National Assembly in exercise of its legislative power to make laws for the peace, order and good government of Nigeria or any part thereof, has the competence to make laws for the purpose of ensuring that all authorities and persons exercising legislative, executive or judicial powers conforms to their duty to apply and observe the requirement of chapter 2 of the constitution to promote the principles of democracy and social justice and prevent such authorities from engaging in abuse of power. This includes the power to define the extent and limits of the discretionary power conferred on the CCB and thereby provide criteria for the courts in determining whether the discretion has been properly exercised in furtherance of the court’s power of judicial review.
Furthermore, as the constitution has under Paragraph 3, Third Schedule Part I 1999 Constitution reserved the legislative power to the National Assembly to confer on the CCB additional functions which under section 308 of the constitution also includes powers, therefore it can be argued that the issue of defining the extent or limitations of the discretionary powers of the CCB is incidental or supplementary to the powers of the National Assembly to make laws conferring additional functions or powers on the CCB. Such a definition or limitation is equally incidental or supplementary to the powers of the National Assembly to make laws for the peace, order and good government of Nigeria or any part thereof, in respect of the matters under the Exclusive Legislative List already identified above, namely, Items 60(a), 67 and 68.
For the avoidance of doubts, Part III of the Second Schedule in defining incidental and supplementary matters uses the legislative word “include”, which shows that the definition is not exhaustive and equally recognizes that incidental and supplementary matters have a wider generality than the definition employed in the constitution.
Some of these provisions have been interpreted by the Supreme Court. An example is the decision of the Supreme Court in Attorney-General of Ondo State v Attorney-General of the Federation  6 NWLR (Part 772) 1, 54-55, where it held:
“Item 67 under the exclusive legislative list read together with the provisions of section 4, subsection (2) provide that the National Assembly is empowered to make law for the peace, order and good government of the federation and any part thereof. It follows, therefore, that the National Assembly has the power to legislate against corruption and abuse of office even as it applies to persons not in authority under public or government office. For the aim of making law is to achieve the common good.”
On a final note it is important to mention that the Court of Appeal had remarked in Saraki’s case that;
“It is also clear that while section 3(d) of Code of Conduct Bureau and Tribunal Act gives to the Bureau functions to receive complaints only in respect of non-compliance or breach of the Act, paragraph 3(e) of the Third Schedule to the Constitution empowered the Bureau to investigate the complaint and refer any matter of investigation appropriately to the Tribunal.”
This further buttress the fact that it was not the intention of the legislature in promulgating section 3(d) of the CCBT Act to duplicate or replicate the provisions of paragraph 3(e) of the Third Schedule of Part 1 of the 1999 Constitution.
In defining the nebulous “where appropriate”, to mean “where the Bureau considers it necessary”, it did not abrogate the powers of the CCB to investigate a complaint, where it considers it necessary to do so. Thus, where an investigation of a complaint is necessary in order to achieve the desired purpose of the Code of Conduct for Public officers, the CCB’s power of investigation may be exercised either before or after the invitation to Public Officer to make representations in writing in relation to the complaint.
It is however apparent that if the proviso is interpreted literally it will lead to the anomalous and awkward situation envisaged by the Court of Appeal and the CCT which defeats the intention for promulgating the Code of Conduct for Public officers. Equally without filling in the lacuna in the proviso, the power of investigation will also be extinguished immediately the Public Officer has made an admission in writing of a breach or non-compliance with the asset declaration of the Code of Conduct. Therefore, it is important to highlight and address the lacuna in this proviso, which calls for either a legislative amendment or an authoritative interpretation from the Supreme Court. This lacuna will be highlighted, and possible interpretations of the proviso examined, after a critical review of the Court of Appeal decision in Saraki’s case.
Nonso Robert Attoh is a law lecturer and writes from Enugu, Nigeria