By Ben Nwabueze
On 11 September, 2015 a deputy director in the Federal Ministry of Justice filed an application in the CCT, Abuja, asking for the commencement of trial of Dr Bukola Saraki, President of the Senate, Federal Republic of Nigeria, on a charge of false declaration of assets, with 13 counts – Charge No. CCT/ABJ/01/2015 dated September 14, 2015.
The application was granted by the tribunal, sitting with its chairman, Mr. Danladi Umar and one other member, Mr Agwadza Atedze, which directed that a summons should be issued commanding the accused to appear before it and plead to the charge. On September 17, Dr Saraki, through his counsel, filed an application praying the tribunal to quash and/or strike out the charge against him. After due hearing, the application was dismissed on September 18, 2015. By its ruling dismissing the application, the tribunal also issued a bench warrant ordering the Inspector-General of Police to arrest and produce the accused in the tribunal on September 21, 2015.
The accused then applied to, and obtained from the Federal High Court, (FHC) Abuja, an order dated September 17, 2015 directing the tribunal to appear before it on September 21, 2015 to show cause why the proceedings before it (i.e. the tribunal) should not be halted. The tribunal refused to comply with the order of the FHC, and went ahead with the trial, which was eventually halted by the Supreme Court.
Eight issues arise from the above stated facts:
Whether the Code of Conduct Tribunal (CCT) is not, in its true character, as it is conceived and established by the constitution of Nigeria 1999, a purely disciplinary body:
1.1 The CCT is a body established by the Fifth Schedule to the Constitution 1999 to deal with contraventions or breaches of the duties laid on public officers by the Code of Conduct enshrined in the said Fifth Schedule. The issue raised here is as to what the true character of the tribunal is – whether it is simply a body to exercise disciplinary control of public officers or a court with criminal jurisdiction. The answer depends on the nature of the duties laid on public officers by the Code of Conduct. Are the duties criminal in nature and effect or purely disciplinary? Or putting it differently is the Code in the nature of a Criminal Code or a Disciplinary Code designed to regulate the way public officers discharge their official duties and responsibilities towards the public, much like the Civil Service Rules?
1.2. This requires that the provisions of the Code of Conduct should be looked at very closely. A close look shows that although some of the provisions are in their terms prohibitory, the Code is merely a body of rules designed to regulate the civil, not criminal, behaviour of public officers. The duties it imposes on public officers are not in the nature of criminal obligations or liabilities. In any case, it is outside the purpose, concern or role of a constitution anywhere in the world to create criminal offences.
1.3. Furthermore, the sanctions or penalties prescribed by the Code for contraventions or breaches of its provisions show that its purpose and intent is disciplinary, not punitive. Under paragraph 18 of the said Fifth Schedule, the CCT is empowered to impose as sanctions the vacation of an office or a seat in a legislative house, disqualification from holding office or such seat, and the seizure or forfeiture to the state of any property acquired in abuse or corruption of office. These are purely disciplinary sanctions or penalties, not punishment for a criminal offence.
1.4. This conclusion is supported by the authority of the decision of the Judicial Committee of the Privy Council in a Ceylonese appeal in Kariapper v. Wijesinha  3 ALL E.R. 485. In 1965 some members of the legislative assembly and the local government councils in Ceylon were found guilty of corruption by a commission of enquiry. The country’s legislature then enacted a law 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. The Privy Council held, relying on a decision of the U.S. Supreme Court in United States v. Lovett (1945) 328 U.S. 303, that the penalties imposed by the law were not punishment for the criminal offence of corruption, but only disciplinary sanctions “to keep public life clean for the public good” at page 491.
1.5. In the view of the Privy Council, there is a difference between a disciplinary penalty and a punishment for an offence, quoting the words of Justice Frankfurter in the United States case, United States v. Lovett (1945) 328 U.S. 303, –
“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.”
The meaning of the word “punishment” in paras 18(1) & (2) as denoting simply “sanction” is brought out clearly by para 18(3) which refers to “the sanctions mentioned in sub-paragraph (2) hereof”. It would distort the entire scheme contemplated by the establishment of the CCT to read “punishment” in the context of para 18 as meaning punishment for a criminal offence rather than as a disciplinary sanction.
1.6. The decision of the Privy Council in this case shows clearly that the Code of Conduct Tribunal is conceived and established by the Constitution as a disciplinary body, and that the power given to it by paragraph 18 of the Fifth Schedule are intended, not really to punish, but to discipline and, in the words of the Privy Council, to “keep public life clean for the public good”.
1.7. The view of the provisions in paragraph 18(1) (2) & (3) as disciplinary sanctions rather than punitive derives support from the provision in paragraph 18(6), which says:
“Nothing in this paragraph shall prejudice the prosecution of a public officer punished under this paragraph or preclude such officer from being prosecuted or punished for an offence in a court of law”.
The provision in paragraph 18(6) seems conclusive that paragraph 18(1), (2) and (3) creates no criminal offences, and that the sanctions therein mentioned are not punishment for a criminal offence, as otherwise it will contradict or conflict with the prohibition against double jeopardy in section 36(9) of the Constitution, which says:
“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”.
1.8. The view of the matter here canvassed is also supported, and is certainly not contradicted, by paragraph 18(3), which says that “the sanctions mentioned in sub-paragraph (2) hereof shall be without prejudice to the penalties that may be imposed by any law where the conduct is also a criminal offence.” This again suggests that the conduct proscribed by the Code is not thereby made a criminal offence. Paragraph 18(3) also clearly contemplates trial and punishment by a court, not the Code of Conduct Tribunal, “where the conduct is also a criminal offence.” A distinction is here drawn between sanctions for contraventions or breaches of the Code of Conduct, which are merely disciplinary, and punishment for criminal offences.
1.9. Finally, the character of the CCT as a purely disciplinary body under the Constitution is reflected in the procedure provided in paragraph 3(e) of the Third Schedule to the Constitution for invoking its powers; they can only be invoked by the Code of Conduct Bureau (CCB) referring to it a complaint about non-compliance with, or breach of, the provisions of the Code of Conduct. The CCB is also a disciplinary body authorised, not only to receive complaints, and investigate them, but also to “ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct”: paragraph 3(d), Third Schedule; (emphasis supplied).
1.10. Accepting the arguments and conclusions above about the character of the CCT as a purely disciplinary body, the Federal High Court, per Justice Jonah Adah, in the Dariye case held that:
“The Code of Conduct Tribunal is conceived by the Constitution as a disciplinary body, and that the power given to it by paragraph 18 of the Fifth Schedule are intended, not really to punish, but to discipline and, in the words of the Privy Council, to ‘keep public life clean for the public good’. I am entirely in agreement with this position of Professor Nwabueze (SAN) as the exact intendment of the Constitution relating to the Code of Conduct Tribunal. This is manifestly clear from the provision of paragraph 18(6)” – at page 15 of his judgment: Fed Republic of Nigeria v. Chief Joshua Chibi Dariye.
1.11. The CCT itself has affirmed that, under the Fifth Schedule to the Constitution, it is a purely disciplinary body, with no power to try criminal offences – see Federal Republic of Nigeria v. Dr Orji Uzor Kalu (judgment delivered on April 26, 2006 – a case in which Dr Orji Kalu, former governor of Abia State, was arraigned before the CCT on a charge of corruption, and in which the former governor pleaded in defence, his immunity under section 308(1) of the Constitution. The CCT, speaking through its then chairman, Justice Constance Momoh, held the immunity inapplicable as a defence to the suit, on the ground that the Tribunal (i.e. the CCT) is not a court, but a purely disciplinary body, that it has no power to try criminal offences, and that proceedings before it are sui generis and are not civil or criminal proceedings to which alone section 308(1) applies, see Federal Republic of Nigeria v. Dr Orji Uzor Kalu, Charge No. CCT/NC/ABJ/KW/03/3/05/MI.
1.12. It follows from all what is said above, in particular the decisions noted in paragraphs 1.4, 1.10 and 1.11, that it is unconstitutional, null and void for the Code of Conduct Bureau & Tribunal Act to change the character of the CCT from that of a purely disciplinary body to a court, with power, albeit limited power, to try criminal cases and, on conviction, sentence persons for criminal offences. The point is fully argued under Issue Two below wherein the discussion on the true character of the CCT is continued. Continues on Sunday
Ben Nwabueze is a distinguished professor of law and a leading scholar of constitutional law.