Recently, the Chairman of the Code of Conduct Tribunal, CCT Danladi Umar was issued a query by the National Judicial Council, NJC, arising from a petition against him by the Incorporated Trustees of the Centre for Justice and Peace Initiative which was directed to the NJC. However, in his reply, the CCT Chair declined to answer the query on the ground that he is not answerable to the ‘NJC’ but rather to the ‘Presidency’. This is a law check to verify, strictly on the basis of the law (and legal precedents, if applicable), the veracity of the statement.
#1. BACKGROUND: CCB AND NJC AS EXECUTIVE BODIES
Section 153(1) of the Constitution established 14 special bodies at the federal level which were designated as “certain Federal Executive Bodies”. Number one on that list is the Code of Conduct Bureau, CCB. The National Judicial Council is listed as number 9 (paragraph i). Other bodies on that list are the Council of State, Federal Character Commission, Federal Civil Service Commission, Federal Judicial Service Commission, Independent National Electoral Commission, National Defence Council, National Economic Council, National Population Commission, National Security Council, Nigeria Police Council, Police Service Commission and Revenue Mobilisation Allocation and Fiscal Commission.
Notably, the CCT was not listed as part of the ‘Executive Bodies’.
According to established canons for interpreting the Constitution, each of the listed Executive bodies set up directly by the Constitution would be deemed normatively equal to the others except where expressly or by inference (after a holistic review of all relevant provisions of the Constitution) shown to be designated as inferior to any of the others.
Under section 154(2), the composition of three of them -Council of State, National Defence Council, NDC and the National Security Council, NSC – are made entirely subject to the President’s discretion. These three, it is submitted, are properly the ‘Executive Bodies’ that can be deemed as belonging under the ‘Presidency’ without jeopardizing their constitutionally designated objectives as provided. For instance, while the latter two – NDC and NSC – relate to matters under the President’s indisputable control of the national security apparatus as Commander-in-Chief, the Council of State (a body made up entirely of ex-officio members: President, Vice President, all former Heads of State, all former Chief Justices, Governors of the Federating units, President of the Senate and Speaker of the House of Representative and the Attorney-General of the Federation) – is arguably a panel containing enough ‘equals’ that should be able to exude the personal gravitas required to uphold enough measure of independence for the Council of State to effectively advance the sensitive national imperatives given to it.
Aside from those three bodies, it is a bit far-fetched, looking at the Constitution as a whole, to assert that any of the other ‘Executive Bodies’ can be designated as being under the ‘Presidency’ without besmirching the institutional integrity required to deliver on their constitutional objectives. Indeed, within the texts and spirit of the relevant constitutional provisions are found careful effort to give suitable distance between each of them and the ‘Presidency’. For instance, except for ex-officio members, appointment to the chairmanship and membership of all the other remaining executive bodies including the CCB and NJC are to be made by the President only after confirmation of the President’s nominees by the Senate. In addition, for INEC, NJC, FJSC and NPC, the President is required by section 154(3) of the Constitution to consult the powerful Council of State even before forwarding a nominee to the Senate.
Another way that the Constitution secured the independence of the Executive Bodies – and put reasonable distance between them and the Presidency – is through the tenure framework connected with each of them as outlined under section 155(1). For instance, the President has no power to sack the Chairman of the NJC (headed by the Chief Justice) or other Executive Bodies chaired or composed of ex-officio public officers without first securing the removal/suspension/recall of that officer from the substantive or qualifying office. And where membership of an Executive Body is gained by virtue of retirement from a named public office, the President was expressly denied the power under any circumstances to, in any way affect the tenure of such a person – a key way the Constitution empowered ‘elder statesmen’ to uphold the values of the nation through appropriate Executive Bodies instead of through the pages of newspaper.
RELATIONSHIP BETWEEN THE CCB & NJC AND CCB & THE PRESIDENCY
Even though, unpopular with lawyers and judges, the combined effect of Section 153 – 158 of the Constitution of the Federal Republic of Nigeria is that normatively, the NJC and the CCB are equals – designated for different spheres of the Nigerian national life. They are also ‘executive bodies’ regardless of the fact that the NJC addresses itself to Nigeria’s judicial circuit. In other words, both are bodies or platforms which the founders deliberately set up to enable the exercise of critical executive powers which the Federation and the People of Nigeria did not want its buck to stop or even pass through the table of the President.
For the NJC and CCB, the Constitution outlines a framework, which effect is that in the performance of their duties, none of them was to be tainted by the long shadows of the Presidency – except to the extent provided under section 160(1) (relating to the requirement to seek and obtain the consent of the President before adopting any rules/mode for the self-regulation of its powers and functions). Each of the Executive Bodies is expressly empowered under section 158 of the Constitution to make appointments (as to staff) and exercise disciplinary control over persons independent of the “direction or control of any other authority or person”. ‘Authority’ is defined under section 318 of the Constitution to include ‘government’ a term that necessarily covers the Presidency/Presidency of the Federal Republic of Nigeria.
Going by the laws, stricto sensu, in contradistinction to practices that have evolved unchallenged, it would be a flagrant breach of section 158 of the Constitution for the Presidency to assume control or a superintendent’s position over the operations of the CCB. The reason for that is immediately obvious: the Presidency represents a major constituency of ‘public officers’ over whom the CCB is required to exercise its powers so as to deliver on its constitutional/statutory objectives which under section 2 of the Code of Conduct and Tribunal Act reads: “The aims and objectives of the Bureau 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.” Public Officers under Part II, Fifth Schedule to the Constitution include the President, Vice President, Secretary of the Government, Attorney-General, Cabinet members, Permanent Secretaries, all persons in the Federal Civil Service, Ambassadors, High Commissioners, all officers of the Nigerian Missions abroad, all members of the Armed Forces, government security agencies, etc.
The corollary to that is this: the NJC has zero basis to assume it can issue disciplinary directives to a staff or member of the Code of Conduct Bureau, CCB (in contradistinction to the Code of Conduct Tribunal, CCT). In fact, in so far as it relates to members of the NJC who are public officers (active or retired), the NJC is under the regulatory purview of the CCB with respect to the enforcement of the Constitutional Code of Conduct for Public Officer.
This naturally raises the question, if the NJC cannot supervise the functions of the CCB, can it assume the same authority over the CCT? It is a question best answered by first exploring the relationship between the CCB and CCT
RELATIONSHIP BETWEEN THE CCT AND THE CCB
Relevant provisions of the Constitution [majorly Third Schedule (Item A, Part I) and Fifth Schedule] and the Code of Conduct Bureau and Tribunal Act, 1991 discloses that the Code of Conduct Tribunal, CCT is not, institutionally, part of the CCB. Instead, it is established as a sui generis (special) tribunal expressly established like all the conventional ‘Superior Courts of Records’ by the Constitution. It is a permanent tribunal – unlike the Election Tribunal which operation, constitutionally, is of a quasi ad-hoc nature.
Functionally, the jurisdiction of the CCT is limited (to the Constitutional Code of Conduct for Public Officers) and it is a jurisdiction that lies dormant until activated by only one authority – the CCB – through a referral which must relate to complaints received against only one category of persons in Nigeria – public officers.
Uniquely, the CCT enforces an ‘Offence’ Code higher than any other Code in Nigeria – including the Criminal/Penal Code – being the only Code directly embedded into the Constitution via the Fifth Schedule to the Constitution. The CCT is also the only tribunal whose punitive decisions or ‘convictions’ cannot be wiped off or neutralized by executive discretion by virtue of the Prerogative of Mercy (see s. 18(7), Part I, Fifth Schedule to the Constitution).
Instructively, the CCB is constitutionally restrained from activating the grave jurisdiction of the CCT against any public officer except where the specific public officer fails, when confronted with the complaints against him/her, to make a written admission that specifically and technically qualifies as an ‘admission’. The purpose of that provision contained as the proviso to section 3(d) of the Code of Conduct and Tribunal Act, it is submitted, is to reduce the cost of litigation on both sides (CCB and the accused public officer); reduce public exposure and opprobrium which a public trial guarantees for a contrite public officer; and allow the CCB to attach commensurate consequences directly to the offences as determined and admitted without involving the CCT (as the CCB has powers to directly attach consequences to admitted offences as such).
Properly addressed within the larger purposive reading of the Constitution, the CCT is, therefore, not an appendage of the CCB. Too many of its unique features under Part II of the Fifth Schedule to the Constitution establish that unambiguously.
For one, its members are not drawn from or designated as staff of the CCB. Instead, the CCT is designed as an fully-staffed independent body made up of a Chairman and two members for the Panel – who between them have the power to appoint other members of staff of the CCT. Specifically, appointment of the Chairman and the two other members of the CCT judicial panel follow a unique framework which suggest that the Constitution envisaged a recruitment standard arguably as high, if not higher, than the minimum prescribed for Nigeria’s regular Court of Records including the Supreme Court of Nigeria. For instance, while the Constitution prescribes a legal practitioner of no less than 15 years post-call standing (with or without any judicial experience) for membership of the Supreme Court, in the case of the CCT Chairman, only a person who has held (or is qualified to hold) office as a Judge of a Superior Court of Record (a list which includes the Court of Appeal or Supreme Court) may be considered.
Again, CCT’s Rules of Procedure, unlike those of the aforementioned ‘Executive Bodies’ (including the CCB) are not left to its members to draw up (subject to the approval of the President), rather CCT’s rules were directly provided for under the Third Schedule to the Code of Conduct and Tribunals Act by the National Assembly (the People’s elected representatives). A perusal of those legislated rules of procedure showcases the CCT, unlike the CCB, to be, indisputably, a judicial platform complete with powers to summon any accused persons (including the President or the Chief Justice) to appear before it; take pleas like a proper criminal trial; entertain suits brought in the name of the Federation through the office of the Attorney-General directly, issue summons and warrants, take and evaluate evidence, issue findings, ensure the taking and securing of records of its proceedings and so on. Instructively, it has the powers, where necessary, to invoke the provisions of the Criminal Procedure Act/Code with such modifications as the circumstances may allow.
The CCB is thus, unambiguously, a sui generis judicial body established by the Constitution to give effect to the Code of Conduct enshrined in the Constitution when activated by the CCB (upon the refusal of any public officer to admit any complaint of infraction of the Code made against him/her). The CCB (in concert with the Office of the Attorney General), acts as no more than a prosecuting authority/platform that activates the jurisdiction of the independent CCT.
RELATIONSHIP BETWEEN THE CCT AND THE NJC
The CCT is a judicial tribunal of record, directly designated and empowered as such by the highest law of the land: the Constitution. A relevant question that arises is: is the CCT, like other superior courts of records, under the regulatory powers of the National Judicial Council?
First, there needs to be conceded the fact that the Constitution left room for a plausible argument in the positive to be made with regard to the question as it expressly mandated that the Chairman and the other two members of the CCT with judicial functions shall be “appointed in ACCORDANCE with the recommendation of the National Judicial Council [NJC].” However, unlike Judges of regular tribunals, “recommendation” is as far as the NJC’s involvement goes in relation to the affairs of the CCT. When it comes to removal and disciplining of members of the CCT with judicial functions, NJC is given no powers both under the Constitution and the Code of Conduct Bureau and Tribunal Act. Indeed, the Constitution seems to have reinforced the high level of independence it envisages for the proper straddling of the judicial functions of the CCT by requiring under paragraph 17(3) of Schedule V to the Constitution that “ a person holding the office of Chairman or member of the Code of Conduct Tribunal shall not be removed from his office or appointment by the President except upon an address supported by two-thirds majority of EACH HOUSE OF THE NATIONAL ASSEMBLY [Senate and House of Representatives] praying that he be so removed for inability to discharge the functions of his office…” In contrast, under s.253 of the Constitution, only a two-third majority of the Senate is required to remove the Chief Justice or any Justice of the Supreme Court.
However, while operationally and administratively the CCT is established to be independent of the organogram of the federal judiciary of Nigeria, its decisions is immersed within the appellate stream of all the Courts of Nigeria as its decisions are subject to the appellate jurisdiction of the Court of Appeal and the Supreme Court.
CCT’s establishment as designed, therefore, represents a constitutional restraint or limitation on the advisory/interventionist powers of the NJC over the appointment and disciplining processes in relation to persons carrying out judicial functions in Nigeria. CCT’s existence also is proof that there is a difference the Judiciary and the NJC – a line often blurred by lawyers and legal scholars. Most importantly, the CCT is proof-positive that the Constitution recognizes a distinction between the key dynamics or infrastructure that make up the Nigerian judiciary: judicial and non-judicial personnel, physical infrastructure, records, processes and of course decisions/orders/judgment. The CCT is only a part of the rest of the judiciary when it comes to the key issue of decisions/orders/judgment – and no more.
CCT AND THE PRESIDENCY
From the fore-going, it seems apparent that the Constitution intended that there be a very wide gap between the Presidency and the CCT as anything less would disable, factually and perception-wise, the ability of that critical institution to perform its functions with regards to one of the largest constituency of persons designated as public officers by the Constitution. It is thus a very serious misnormer when such a body is not only established, administratively, as part of the Presidency but also finds itself chaired by a personality able to assert rightfully, CCT’s independence from the direct supervision of the NJC, but feels himself beholden to the review powers of the Presidency (except in so far as it is merely an acknowledgment that the President retains the power to initiate a CCT member’s removal from office subject to the confirmation separately, of two-thirds of the members of the Senate and House of Representatives). By the same token, it is very unfortunate to have had a Chief Justice who did not only fail to appreciate the very critical judicial powers and functions carried out by the CCT – but also, in directing that CCT’s judicial panelists not be accorded the titular status of ‘judicial officers’ (so as to preserve the list-led definition outlined under s.318) failed to seize the opportunity to advance the purposes of the Constitution by using language and phrasing that reinforced, (instead of ridiculing or detracting from) the substantive judicial functions constitutionally imposed upon the CCT by the Constitution.
This bears remembering: long before the EFCC and ICPC were established, the CCB/CCT constitutional framework had been embraced in the 1999 Constitution to tackle endemic corruption among public officers. Who knows, if the CCB and CCT had lived up to the high pedestals set up for them under the Constitution whether the nation would have had a need to subsequently set up the EFCC and the ICPC in their present forms. Continuing refusal to embrace and implement key parts of the 1999 Constitution by successive governments despite oaths to the contrary is clearly to be blamed. Aside from escalating inefficiencies across the levers of government, it increases the cost of governance through the duplication of personnel for the performance of functions not being done by existing personnel hired for them who had been rendered, administratively, redundant.
With the benefit of hindsight, the Judiciary, specifically, the Office of the Chief Justice of Nigeria should have proactively requested and undertaken the incubation of the CCT post 1999 to enable it grow properly into the independent judicial body with jurisdiction over every public officer in every arm of government – including the President of the Federation and other members of the Presidency, the Chief Justice and all the other members of the Judge-clan and the National Assembly with all its principal members. It is unfortunate that the office of successive Chief Justices of Nigeria failed in that regard (indeed a one-time sitting Chief Justice is on record to have ordered lawyers not to address members of the CCT as Justices as, in his opinion (distinguishable from the opinion of the Supreme Court properly empanelled) the CCT does not qualify as a Court of Record (a position which, it is submitted, does not accord with common sense grasp of hat a Court of Record is as the CCT definitely is obligated to keep all the transmissible records necessary for its decisions to be reviewed by the Court of Appeal). That negligence, contributed significantly in moving the CCt into the incubation column of the Presidency where it received the platform and support, administratively and financially to find its voice and signification as constitutionally mandated to the point where every other arm and level of government now recognises its once-dormant stature/threat and therefore great possibility for abuse if left as a proxy of the political battles of the presidency.
The incubation period, however, is over. The CCT, and the CCB, need to quickly exit the administrative shadowing of the Presidency and be seen to have come of age as Nigeria’s constitutionally established Independent platforms for the adjudication and investigation/prosecution of offences under the Constitution Code of Conduct respectively.
If there is anything good to come of the debacle that the trial of the Chief Justice of Nigeria at the CCT has become, it is this: it presents an opportunity for the people of Nigeria to rescue the CCB and CCT from the Presidency and from every other institution very happy to copulate with the CCB/CCT and thus compromise their effectiveness. It is time to strengthen them as designed under the Constitution to fight abuse of office at the roots without fear or favour – no matter how highly placed and regardless of the arm of government involved. That is the function designed by the Constitution for the CCB and CCT. As presently operated, administratively, it cannot fulfil those functions. Those entrusted with defending the Constitution in all three arms of government and the People of Nigeria should demand nothing less.
[Sam Eleanya, a legal and policy strategist, is the publisher of LawNigeria.com; Preambles Before the Preamble, Policy, Practice & Publishing Law Reports and We the Young People He is the father of three pikins. ]