By Ebun-Olu Adegboruwa
The clash between judicial and executive powers has been a constant source of anxiety in all contemporary societies which are committed to the principles of the Rule of Law. It is this same anxiety that has induced such writers as John Locke and Montesquieu to conceive the idea that political liberty would be an illusion ifpowers were not demarcated and placed in different hands.
powers were not demarcated and placed in different hands. So far, it has been indicated that powers which may conveniently be described as legislative, executive and judicial, have been conferred on the administration and in some cases, power has been given “not even to known and ascertainable individuals, but to vast departments of the state, huge administrative organizations employing thousands of anonymous civil servants”. In other cases, power is vested on various tribunal or agencies established to execute the policies of the government.
For the purpose of this paper, the main focus is on the powers of the code of conduct tribunal which by discharging these powers and functions clashes with judicial powers rendering its constitutional authority almost ineffective.
i.By paragraph 15 (2) of the Fifth Schedule to the Constitution, only the Chairman of the CCT is required to possess the qualification and training of a judge. The other two members can be anybody, including doctors, accountants, surveyors, traders, politicians, etc.
(ii)By section 6 (6) (b) of the Constitution, judicial powers to resolve disputes are vested exclusively in the courts, manned by judicial officers only.
(iii)Sections 153 and 158 of the Constitution creates and empowers the National Judicial Council as the sole body responsible for the discipline and control of judicial officers, as confirmed in the case of Nganjiwa v FRN.
(iv)Judicial officers have been arraigned before the CCT without reference to the NJC.
(v)The Chairman and Members of the CCT claim immunity from the NJC, even though the Chairman is a judicial officer.
(vi)The CCT has created a situation whereby those performing judicial functions are doing so outside the mandate, supervision or control of the NJC, which is the only body solely recognized by the Constitution for all judicial officers.
(vii)The other scenario created by the CCT is that it is possible to appoint non judicial officers as members thereof, to discharge or carry out judicial functions.
(viii)The funding of the CCT is not routed through the judiciary but rather the Executive, which goes to the issue of loyalty, as he who pays the piper dictates the tune.
The Concept of Separation of Powers
The concept of separation of powers is a model for the governance of a state. Under this model, a state’s government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.
The doctrine of separation of powers comes from the work of Montesquieu for the preservation of political liberty. While describing the doctrine of Separation of Powers, Montesquieu said:
“Political liberty is to be found only when there is no abuse of power. But constant experience shows us that every man invested with power is liable to abuse it and to carry his authority as far as it will go…To prevent this abuse, it is necessary from the nature of things that one power should be a check on another….When the legislative and executive powers are united in the same person or body….there can be no liberty …. Again, there is no liberty if the judicial power is not separated from the legislative and executive …There would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers”.
The whole purpose of the concept of separation of powers is to avoid a tyrannical government, a government that could make laws, enforce such laws and adjudicate over the breaches of such laws to suit its own purpose either politically, economically or socially, to the detriment of others.
The importance of the concept of separation of powers has in recent times been judicially emphasized in Liyanage v. The Queen (1967) AC 259 where the Judicial Committee of the Privy Council pointed out that there exists under the Ceylonese Constitution a tripartite division of powers – legislative, executive and judicial – and that it would be unconstitutional if judicial functions were allowed to be interfered with by the Legislature by means of an Act of Parliament. Again, in Lakanmi v. Attorney General (Western State of Nigeria) (1971) 1 UILR 201, the Supreme Court ruled that Decree No. 45 of 1968 was ultra vires since it was ‘nothing short of legislative judgment, an exercise of judicial power’. The court pointed out that in Nigeria there exist a division of powers – legislative, executive and judicial.
The concept of separation of powers is so fundamental and must be recognized. It is to define the powers of the legislature that the Constitution is written and the purpose is that such powers that are left with the Legislature be limited and that the remainder be vested in the Courts. It must be clearly stated that our Constitution is based on the concept of Separation of Powers – the Legislature, the Executive and the Judiciary and in the distribution of powers, the Courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the state. These powers as vested by the Constitution are highlighted as follows:
Section 4 – Legislative Powers
By the provision of section 4 of the Constitution, the Legislative powers of the Federal Republic of Nigeria are vested in the National Assembly which consists of a Senate and a House of Assembly who have powers 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 1 of the Second Schedule to the Constitution.
Also, the legislative powers of a State of the Federation shall be vested in the House of Assembly of the State to make laws for the peace, order and good government of the State with respect to any matter not listed in the Exclusive Legislative List.
- Section 5 – Executive Powers
By the provision of section 5 of the Constitution, the Executive powers of the Federation is vested in the President and executive functions may be exercised by him directed or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation and shall extend to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make laws.
- Section 6 – Judicial Powers
By the provision of section 6 of the Constitution, the judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation and for a State and each court have all the powers of a superior court of record as follows: a. The Supreme Court of Nigeria,
- The Court of Appeal, c. The Federal High Court, d.The High Court of the Federal Capital Territory Abuja, e. The High Court of a State, f. The Sharia Court of Appeal of the Federal Capital Territory, Abuja, g. A Sharia Court of Appeal of a State,h. The Customary Court of Appeal of the Federal Capital Territory, Abuja, i. A Customary Court of Appeal of a State.
From all of these constitutional powers, the role of the courts therefore is to ensure that powers are exercised within the statutory and constitutional limits and this is achieved through the general principles of construction which they employ as was stated by Oputa, J.S.C thus: “…The Courts should never grow docile or apathetic and should never abdicate their constitutional responsibility of being Guardians of the Constitution as well as Guardians of the Sovereignty of our people. The Doctrine of Separation of Powers is necessary in a written Constitution. The carefully guarded balancing of powers among the three branches of government should be maintained by the courts not abdicating their proper and constitutional role. When the courts fail to exercise independent super-intendency role, things will surely fall part, leading to injustice”. See Oputa J.S.C, The Place of the Judiciary in the Third Republic – a Commentary – All Nigerian Judges Conference, Abuja, 1988.
Functions and Powers of the Code of Conduct Tribunal
POWERS OF THE CODE OF CONDUCT TRIBUNAL: By virtue and pursuant to section 23 of the Code of Conduct and Tribunal Act, CAP 15, Laws of the Federation, 2010, the Tribunal have to impose punishment as follows:– (i) Where the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, is shall impose upon that officer any of the punishments specified under subsection (2) of this section.(ii) The punishment which the Tribunal may impose shall include any of the following – a. Vacation of office or any elective or nominated office, as the case may be; b. Disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and c. Seizure and forfeiture to the State of any property acquired in abuse or corruption of office.
(iii) 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,
(iv) Where the Tribunal gives a decision as to whether or not a person is guilty of a contravention of any of the provision of this Act, an appeal shall lie as of right from such decision or from any punishment imposed on such person to the Court of Appeal at the instance of any party to the proceedings.
(v) 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,
(iv) Nothing in this section shall prejudice the prosecution of a public officer punished under the section or preclude such officer from being prosecuted or punished for an offence in a court of law,
(v) 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 provisions of this section.
Conflict of Powers Between Code of Conduct Tribunal and the Doctrine of Separation of Powers
The clash of powers between the tribunal and the courts violates the principles of separation of powers which can only be dichotomized by streamlining the powers of the tribunal with conductinginvestigations and filing reports or recommendations, leaving the courts with the duty of pronouncing judgments and applying appropriate sanctions or punishment.
The judiciary is an independent organ of the government which requires no interference from the executive or the legislature.
The major problem as I see it stems from the lumping together of the Code of Conduct Bureau, which ordinarily is an agency of government, with the Code of Conduct Tribunal, which should be a judicial body, performing judicial functions. Or else how do we clothe non-lawyers with powers of pronouncing guilt upon citizens.
The way forward: Independence of the Court and Judicial Officers from the Oversight Functions of the Code of Conduct Bureau
Nigerians have before now canvassed the need to strengthen the judiciary and position it as the ultimate interpreter of the Constitution and defender of the rights of the Nigerian people. They have identified a number of problems facing judiciary, including poor funding, lack of infrastructure, overlapping jurisdiction between Federal and State High Courts, over-centralization of the control of the judiciary at the Federal level and the procedure for the appointment and removal of judicial officers. In this regard, the following suggestions are proffered:
1.All members of the Code of Conduct Tribunal should be judicial officers or legal practitioners.
- The mode of appointment should be retained, that is by President on the recommendation of the National Judicial Council.
- The Code of Conduct Tribunal should be totally separated from the Code of Conduct Bureau and be totally removed from the Presidency.
- The procedure for discipline and removal of its members should follow that of judicial officers, under the National Judicial Council.
- Decisions of the Code of Conduct Tribunal should be final with a right of appeal directly to the Court of Appeal.
- The Code of Conduct Tribunal should, in line with the 4th Alteration to the Constitution, be allowed independence and control of its own funds, as a first line charge on the Consolidated Revenue Fund.
- The Code of Conduct Tribunal should be allowed a measure of independence to make its own rules of proceedings.
- There should be a merger of the Code of Conduct and Tribunal Act and the Fifth Schedule to the Constitution in relation to the establishment and powers of the Tribunal.
- The Nigerian Bar Association should as a matter of urgency, in line with the Theme of the 2019 Annual General Conference, initiate a Bill to propose an amendment to the Constitution in relation to the Code of Conduct Tribunal to align with the above suggestions.