The Constitutional Validity of Section 3(D) of the Code of Conduct Bureau and Tribunal Act and Its Notorious Proviso (Part 1) – Nonso Attoh

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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.

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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.

  1. 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.

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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

  1. 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.
  2. 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.
  3. 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?
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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 the argument of the inconsistency was based on the fact that the Commonwealth law he 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 and 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. They 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.

  1. 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

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