Code of conduct enshrined in Nigeria’s constitution and its importance in fight against corruption

Justice Uwaifo

Justice Uwaifo

Whether the Code of Conduct Tribunal is right in refusing to grant a request for stay of proceedings in the case before it, and whether the presence of bias or a likelihood of it and a lack of impartiality does not vitiate the proceedings.

. There are three other related papers assigned to very distinguished presenters. I bear in mind that all four papers have the possibility, to what extent can hardly be foreseen, of dovetailing in some aspects. I have made efforts to stay within limits in laying out the essence of my paper.

. In my considered approach, the paper assigned to me can best be discussed, and perhaps appreciated, when in two parts as follows:

. Whether the Code of Conduct Tribunal is right in refusing to grant a request for stay of proceedings in a case before it.

. Whether the presence of bias or a likelihood of it and a lack of impartiality does not vitiate the proceedings.

. The refusal as indicated in part 2 (a) above, to grant a stay of proceedings by Code of Conduct Tribunal might, it seems to me, to have been predicated in some measure, upon the provision of section 306 of the Administration of Criminal Justice Act 2015which says: “An application for stay of proceedings in respect to a criminal matter before the court shall not be entertained.”

. I have not had the opportunity of seeing the ruling of the Tribunal in this regard to be certain about its reliance on the said provision of that Act. Or else, if it did not rely on it but was a matter of impunity, that could well be understood to have a bearing on what is implied in Part (b) above.

. If the said section 306 was relied on, it presupposed that the Tribunal presumed two factors, namely: (i) that what was before it was a criminal offence in the true sense or, at any rate, that there are some criminal elements which would have to be resolved and, if need be, punished; and (ii) that the Code of Conduct Tribunal is conferred with criminal jurisdiction which was open to it to exercise (in this case before it ) as if a court of law.

. Let me quickly make a point I consider germane in these matters by referring to the Administration of Criminal Justice Act 2015. That Act states its purpose in section 1 thus:

“1-(i) The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interest of the suspect, the defendant, and the victim.

(2) The courts, law enforcement agencies and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of this Act for the realisation of its purpose.”
2.5 it is pertinent to also refer to the Explanatory Note of the Act which reads interalia:
“An act to make provisions for the Administration of Criminal Justice and for related matters in the courts of the Federal Capital Territory and other Federal Courts in Nigeria…”

This is sufficiently definitive that the Act is for criminal justice administration in courts mentioned in the Explanatory Note. So it is plain that the Code of Conduct Tribunal cannot come into focus under criminal justice administration, not being a court in any sense. It follows as well that the Tribunal could not rely on section 306 of the Administration of Criminal Justice Act to refuse to grant stay of proceedings. Therefore, it is desirable to attempt to delimit its jurisdiction and enunciate what its powers are by the Act which created it.

3.1 It seems to me this can be done in a two-way approach. The first is that we ought to be influenced in a matter of this nature by the jurisprudence established from well thought-out legal principles expressed in timeless pronouncements, as guiding lights, by some of the highest courts in the western hemisphere, practising liberal democracy which is sustained through tested justice administration under independent judiciary. We must not adopt any myopic interpretation fashioned on our unaided personal understanding to reach a decision lacking in credibility.

3.2 The second approach is to examine and understand the structure of the Act in question as it is and interpret it with what is usually called verbal skills for the sake of clarity.

4.1 The Code of Conduct Tribunal was established under and by virtue of the Fifth Schedule to the Constitution 1999 to deal with certain contraventions or breaches of the duties laid upon public officers thereunder. The important question is whether the Tribunal is simply a body to exercise disciplinary control of public officers or is a tribunal or court with criminal jurisdiction.

4.2 Let us make reference, for example, to the Ceylonese case of Kariapper v. Wijesinha (1967) 3 All E.R. 485 decided on appeal by the Privy Council. In 1965 some members of the legislative assembly and local government councils in Ceylon were found guilty of corruption by a commission of enquiry. The country’s legislature (the Parliament of Ceylon) the enacted a law, known as Imposition of Civil Disabilities (Special Provisions) Act, vacating their seats in parliament and in the local government councils and also disqualifying them for seven years from being voters or candidates in any parliamentary or local government elections.

4.3 In referring to the implication of the disabilities suffered by the persons affected by the Act the Privy Council observed inter alia at page 491 that “the disabilities imposed by the Act are not, in all the circumstances, punishment….the disabilities are not linked with conduct for which they might be regarded as punishment but, more importantly, the principal purpose which they serve is clearly enough not to punish but to keep public life clean for the public good.”

4.4 As to what punishment implies in situations similar to the matter of false declaration of assets, the observation of Justice Frankfurter in United States v. Loveth (1945) 328 US 303, which the Privy Council quoted in the Ceylonese, is that:
“Punishment presupposes an offence, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by government authority does not make it punishment.

Figuratively speaking all discomforting action may be deemed punishment because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony…. or because he is no longer qualified…. ‘The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.’’’

. It ought to be said that an understanding of the way this somewhat dialectical reasoning plays out is key to such matters as we are confronted with at this seminar.

5.1 This now takes us to the Code of Conduct Bureau and Tribunal Act 1989, the date of commencement being 1st January, 1991.
Part I of the Act deals with the Code of Conduct Bureau while Part II deals with the Code of Conduct Tribunal. The aims and objectives of the Bureau, as stated in section 2 of the Act, ‘’shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability.” This in a sense reflects what the Privy Council said in the Ceylonese case that the principal purpose of the Act which gave rise to that case was not to punish but to keep public life clean for the public good.

5.2 The functions of the Bureau are purely administrative, namely to receive assets declaration, examine the declarations to ensure compliance with the law, take and retain them, receive complaints about non-compliance with, or breach of the Act; and if need be, refer them to the Code of Conduct Tribunal.

5.3 It would appear that assets declaration and matters related thereto as per section 3 are the real fulcrum upon which the Bureau may make reference to the Tribunal, not other matters, in my view, having some bearing with crime. This is worthy of note because the proviso to that section says: “Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary.” If crime had been involved and admission is made does that proviso imply that the crime be condoned?
6.1 There are some sections of the Act which have nothing to do with assets declaration. But section 23 is what confers powers on the Tribunal and it is pertinent to set out the provisions as follows:

“23. Powers of the Tribunal to impose punishment
. Where the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, it shall impose upon that officer any of the punishments specified under subsection (2) of this section.
. The punishment which the Tribunal may impose shall include any of the following-
. vacation of office or any elective or nominated office, as the case may be;
. disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and
. seizure and forfeiture to the State of any property acquired in abuse or corruption of office.

1. The punishments mentioned in subsection (2) of this section shall be without prejudice to the penalties that may be imposed by any law where the breach of conduct is also a criminal offence under the Criminal Code or any other enactment or law.

. Where the Tribunal gives a decision as to whether or not a person is guilty of contravention of any of the provisions of this Act, an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Count of Appeal at the instance of any party to the proceedings.

. Any right of appeal to the Court of Appeal from the decision of the Tribunal conferred by subsection (4) of this section shall be exercised in accordance with the provisions of the rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

. Nothing in this section shall prejudice the prosecution of a public officer punished under this section, or preclude such officer from being prosecuted or punished for an offence in the court of law.

. The provisions of the Constitution of the Federal Republic of Nigeria 1999, relating to prerogative of mercy, shall not apply to any punishment imposed in accordance with the provision of this section.”

6.2 It is my firm view that section 23, when carefully considered and properly understood as to its import– whether in its wording or structural layout –denies or restricts or restraints or limits the Tribunal from the exercise of any criminal jurisdiction under or by virtue of the provisions of the Act howsoever expressed.
6.3 It is helpful to begin the analysis of the said section 23 by putting the opening words of subsection (2) thereof in their proper perspective.

The words are: “The punishment which the Tribunal may impose shall include any of the following” and then the three aspects of punishments are set out. That means that the punishment the Tribunal may impose shall be any or all of those three aspects of punishment, which said aspects clearly constitute a limitation on the jurisdiction of the Tribunal.
• Uwaifo, (CON.) a former Justice of the Supreme Court presented this paper at the inaugural seminar of Ben Nwabueze Centre for Studies in Constitutional Law and Related Subjects held at Nigeria Institute of International Affairs (NIIA), Victoria Island Lagos on March 24, 2016.

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