This is the second edition of this discourse. In the first part which was published in Vanguard yesterday, the author argued that the issue of jurisdiction in the Saraki case cannot be settled aright without reference to section 6 of the constitution and the decisions based on it.

By Ben Nwabueze

WHETHER the Supreme Court decision on the issue of the jurisdiction of the CCT has a basis in a law validly made by the National Assembly

Saraki

The Supreme Court decision attributing a quasi-criminal jurisdiction to the CCT was anchored not only on the Constitution itself, but also on the Code of Conduct Bureau and Tribunal Act. The question arising is whether the Act is consistent with the Constitution and valid. From what is said above, the Act is inconsistent with section 6 vesting judicial power in courts listed therein, of whom the CCT is not one.

Apart from being inconsistent with section 6 vesting judicial power in the courts named therein, the Act is inconsistent with the Constitution for another reason, made so manifest by Onnoghen JSC in his lead judgment where he sets out the provisions of paragraph 15(1) of the 5th Schedule to the 1999 Constitution and section 20(1) of the Act, as follows:

Paragraph 15(1) : “There shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons”

Section 20(1) : “There is hereby established a tribunal to be known as the Code of Conduct Tribunal (in this Act referred to as ‘the Tribunal’)

(2) “The Tribunal shall consist of a Chairman and two other members.”

It is obvious on the face of the two provisions that section 20 of the Act is a duplication of paragraph 15 (1) of the Fifth Schedule, a fact so obvious as to make it unnecessary for counsel in their pleading or brief of argument to draw the Supreme Court’s attention to it. As earlier stated, the Supreme Court, as the court of last resort, has the duty, without special pleading or urging by counsel, to ensure that laws enacted by the legislature which it is called upon to apply in the adjudication of cases before it are consistent and not at variance with the supreme law embodied in the Constitution.

Given the obvious fact that section 20 of the Act is a duplication of paragraph 15(1) of the Fifth Schedule to the Constitution, only the legal consequences of such duplication remain to be determined.  And the Supreme Court itself has determined them by its decision in Att-Gen of Abia State v. Att. Gen of the Federation (2002) 6 NWLR (Pt 763) 264 at 369, where the Court, per Kutigi JSC (later CJN), delivering the judgment of the Court, held:

“Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision then the provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative.

Authoritative  statement

The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provisions will be treated as unconstitutional and therefore null and void.” (emphasis supplied). The decision is re-affirmed by the Court in INEC & Anor. v. Balarabe Musa & Ors [2003] 3 NWLR (Pt 806) 72 at page 158, where Ayoola JSC for the Court said:

“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… Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how it has derived its legislative authority to do so from the Constitution itself. In this case, section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtracting and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted.” (emphasis supplied)

The decision of the Supreme Court in these two cases has a good rationale to support it. An inconsistency arises from the different sources of authority for the two provisions, one source of authority, namely the Constitution, being superior to the other i.e. an ordinary law made by the legislature; for this reason, a statutory provision, deriving authority from an inferior source, simply cannot exist and operate together with the same or similar provision in the Constitution which it duplicates.

It makes hardly any sense that something established or existing by the Constitution should be established yet again by an ordinary law which is inferior to the Constitution; the basis of its existence, its character and authority is certainly not changed from the Constitution to the ordinary law, nor will the repeal of the ordinary law terminate its existence and powers under the Constitution.

This rationale finds further support in the decision which, based on the superior authority of a federal law vis-à-vis a state law on a concurrent matter, holds that where the Federal Government has legislated completely and exhaustively on such matter, so as to cover the entire field of the subject-matter, then, a state law on the same matter which duplicates the federal law is void for inconsistency, since the state law, deriving its existence from an inferior authority, cannot exist together with the federal law: Att-Gen of Ogun State v. Att-Gen of the Federation (1982) NSCC 1, particularly pages 11 (per Fatayi-Williams CJN delivering the judgment of the Court) and 28 (per Idigbe JSC).

But see the judgment of Eso JSC who, dissenting on this point, holds that the identical state law is only in “abeyance” or in suspension, but not void: at page 35. Even on Justice Eso’s dissenting view that the duplicating state law is merely in abeyance or suspension, the provisions of the Code of Conduct Bureau and Tribunal Act, Cap 56 LFN, that duplicate those of the Constitution, being in abeyance or suspension, cannot be used as authority for the trial by the CCT of the offences charged against the Dr Saraki.

But there is another, perhaps stronger, reason for the unconstitutionality and nullity of an ordinary law that duplicates the provisions of the Constitution. Duplication, even when the duplicating provision in the ordinary law does not in terms purport to do so, imports by implication the supersession or supplantation of the provisions of the Constitution.

Supersession  or supplantation

To supersede or supplant means, according to the definition of the two words in Webster’s Dictionary of the English Language, “to replace in power, authority or use; to succeed to the position, function or office of.” By duplicating the provisions of the Constitution, therefore, the Act purports to make itself the governing power or authority in place of the Constitution as the governing law in use for all purposes.

In fact nearly all the provisions of the Act have the clear effect and manifest a clear intention of superseding or supplanting the provisions of the Constitution. Such, for example, are the provisions:

(i) establishing the CCB and the CCT (sections 1 and 20);

(ii) authorising the National Assembly to “confer on the Tribunal such additional powers as may appear to it to be necessary to enable the tribunal to discharge more effectively the functions conferred on it under this Act” (section 20(5); emphasis supplied); since they include the trial and imposition of punishment for a criminal offence, “the functions conferred on [the CCT] under this Act” are much greater than the functions conferred on it by the Constitution.

(iii) authorising the Tribunal to impose “any of the punishments specified under subsection (2) of this section” upon a public officer whom “it finds guilty of contravening any of the provisions of this Act” (section 23(1); emphasis supplied);

(iv) relating to the manner for exercising “any right of appeal to the Court of Appeal from the decision of the Tribunal conferred by subsection (4) of this section” (section 23(5); emphasis supplied);

(v) excluding “any punishment imposed in accordance with the provisions of this section” from the provisions of the Constitution relating to the prerogative of mercy.

The clear meaning and effect of these provisions and similar other provisions in most sections of the Act, such as those in sections 3, 6, 7, 9(1), 10(2), 15(1), (2) & (3), 16, 17, 18(1) & (2), 19, 21(1), & (2), 22(1), (3) & (4), 23, 24 and 25 is to replace the authority or use of the Constitution for this purpose with that of the Act. The Constitution ceases, to all intents and purposes, to be relevant or applicable, and is superseded or supplanted by the Act.

Definition of  ‘the Tribunal’

On this ground, therefore, the Act, together with Charge No. CCT/ABJ/01/2015 based on it, is unconstitutional, null and void. The definition of “the Tribunal” in section 26 to mean “the Tribunal established by and under section 20 of this Act” is conclusive on this point.

The Act is even more glaringly unconstitutional and void because some of its provisions also purport to vary the provisions of the Constitution which they duplicate, as with the provisions establishing the Code of Conduct Bureau (CCB) and prescribing its functions. The provision of section 1(2)(a) of the Act that “the Bureau shall consist of…persons of unimpeachable integrity in the Nigerian society” is an addition to, and a variation of, the qualifications prescribed in section 156 of the Constitution.

Section 3(d) of the Act is at variance with paragraph 3(e) of the Third Schedule to the Constitution. For, whereas the latter empowers the CCB to “receive complaints about non-compliance with or breach of the provisions of the Code of Conduct…, investigate the complaint and where appropriate refer such matter to the Code of Conduct Tribunal”, (emphasis supplied) the Act omits the power to “investigate the complaint” and replaces the phrase “where appropriate” with the words “and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of section 20 to 25 of this Act.” (emphasis supplied).