LEGISLATIVE SACRILEGE: PURPORTED AMENDMENT OF THE CCB&T & ACJA ACTS by Senator Babajide Omoworare

Instead of making uninformed contribution on Senate Bill 248 - A Bill for an Act to Amend the Code of Conduct Bureau and Tribunal Act Cap. C15, Laws of the Federation of Nigeria 2004 and for other Related Matters proposed by Senator Peter Nwabuoshi; I have decided to have a deep breath and have a second look at the laws and other ancillary matters. Let me say ab initio without mincing words that I oppose the Bill in toto on points of law and I am averse to same for moral reasons, having taken more than a cursory look at the Constitution, the Code of Conduct Bureau and Tribunal Act, the Bill in question and the Lead Debate of Senator Nwabuoshi.

It is important to note that another Bill is pending before the Senate: Senate Bill 249 - A Bill for an Act to Amend the Administration of Criminal Justice Act, 2015; and for Other Related Matters by Senator Isah Misau. The purport of the amendment is to amend Section thereof and ensure that the ACJA does not apply not only to Court Martial, but also to such other Courts and Tribunals not listed in Section 6 (6) of the Constitution. I have also looked at the ACJA and this Bill and I do not agree with same.

As stated earlier the thrust from my informed perspective of proposed amendment of the Administration of Justice Act, 2015 is to remove the Code of Conduct Tribunal from Courts that the ACJA provisions will be applied. Thus, the Bill provides thus: “(2) the provisions of this Act shall not apply to a court martial and such other courts or Tribunal not being courts created and listed under section 6(6) of the Constitution of the Federal Republic of Nigeria 1999 as amended”. Therefore! the Code of Conduct Tribunal, not expressly listed under section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the provisions of the Administration of Criminal Justice Act, 2015 will not be applicable to it.

The nature of the formal Bill is to ensure that Public Official is invited and he or she gives a written statement before an action is filed by the Bureau before the Tribunal. Senator Nwabuoshi argued in his Lead Debate that doing otherwise is unconstitutional in view of Section 36 (2) (a) of the Constitution. The Bill also purports to amend Paragraph 17 of the Third Schedule of the CCB&T Act. For all intents and purposes, the said Paragraph 17 allows the use of the Criminal Procedure Act (CPA) and the Criminal Procedure Code (CPC) for the Southern and Northern Nigeria respectively. With the promulgation of the ACJA in 2015 by the 7th Senate, CPA AND CPC have been 'substituted' by ACJA. He further argued that going by the Long Title of the extant Act, the Act does not "contemplate" a criminal trial

The foregoing is the essence and the intention of the Distinguished Senators who are the Sponsors of this Bill.

My opposition to the CCB&T Amendment Bill, which has been committed to the Senate Committees on Judiciary, Human Rights and legal Matters; and the Senate Committee on Anti-Corruption, and the ACJA Amendment Bill is that it will make the CCT a glorified Magistrate Court, which it is not. The ACJA will stop applying to it. Whilst I admit that the CCT is not listed in Section 6 of the Constitution, it would have been better to bring an amendment under the Constitution to add it. Already, the CCT exercises criminal jurisdiction. This so because the proceedings before the Tribunal is criminal proceedings similar to the courts listed under Section 6(6).

Usually, trial before the Code of Conduct Tribunal is commenced with a formal charge containing the offences of the accused, it is the State, through the Attorney General of the Federation that normal prosecute any Public Officer that contravenes the Code of Conduct, plea are also taken, the accused usually sit in the Dock "accused box" and most importantly, the Constitution gives the Code of Conduct Tribunal power to impose punishment under paragraph 18(2) of the fifth schedule, part 1 to the Constitution.

The Black’s law Dictionary, eight edition at page 1269 defines "punishment" thus;
“A sanction-such as a fine, penalty, confinement, or loss of property, right, or privilege-assessed a person who has violate the law”.

Glanville Williams in his book Criminal Law of page 575 equally defines "punishment" thus;
“Punishment in all its forms is a loss of right and advantages consequent on a breach of law. When it loses this quality it degenerates into an arbitrary act of violence that can produce nothing but bad social effects”.

However, there are very interesting things or powers the Code of Conduct Tribunal enjoys under the fifth schedule, part 1 to the 1999 Constitution of the Federal Republic of Nigeria (as amended) which makes of the constitution of the Federal Republic of Nigeria 1999 (as amended).

So we can see that the word “punishment “is used in relation to criminal proceedings it is a consequence on a commission of crime.

Hence the proceeding before the Code of Conduct Tribunal is Criminal in nature and as such there must be Rules of Procedure to guide the proceeding before it. More importantly, appeal from the Code of Conduct Tribunal, like the above mentioned courts, lies at the Court of Appeal. Paragraph 18(4) of the fifth schedule, part 1 to the 1999Constitution of the Federal Republic of Nigeria provides thus;
“Where the Code of Conduct Tribunal gives a decision as to whether or not aperson is guilty of a contravention of any of the provisions of this code, 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.”

Whilst the foregoing has shown enough that provision of punishment indicates that CCT is a Criminal Court, more importantly Item 18 (2) (a) (b) (c) show that acts of vacation of office or seat; disqualification from holding legislative office or public office for a period not exceeding 10 years and seizure of properties acquired in abuse or corruption of office; amount to "punishment".

The most interesting jurisprudential point of law however seems to be that the same facts that form the cause of action in the matter in the CCT, may form the cause of action in another Criminal court for further actions (for instance, prosecution to conviction and sentencing) without amounting to "Res Judicata", "Plea of Autrefois acquit or convict" ( See Section 277 ACJA 2015), or "Double Jeopardy" (Item 18 (3) Fifth Schedule of the Constitution).

The Long Title of a Bill, not containing "Crime" is no conclusive argument that the CCB&T Act does not envisage criminal proceedings at CCT, in fact, as can be gleaned from the above, the converse is true situation.

Furthermore, the Supreme Court had ruled against the Senate President that the Code of Conduct Tribunal is a court of law.

If Administration of Justice Act, 2015 is not applicable to the proceedings of the Tribunal, which rules of procedure will be applicable? So there will be a serious lacuna if the Sponsors of this Bill succeed in seeing that the amendment is passed and becomes law.

In addition to the foregoing, the CCT even though not among the courts listed under section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999, is my humble submission of the same status as the Federal High Court, State High Court and the National Industrial Courts. Items 67 and 68 of the Exclusive Legislative List are quite wide enough to accommodate same.

Be that as it may, instead of amending the Administration of Criminal Justice, Act 2015, why can’t we amend the Constitution to list the Code of Conduct Tribunal among the courts listed under section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The concomitant effect of the proposed amendments is to exclude the use of the ACJA in the matters relating to CCT. Less we forget, the ACJA passed by the 7th Senate enables matters to be expeditiously prosecuted. Trials are now meant to be taken "day by day" instead of the grant of long adjournments ( see Section 396 (3) & (4)). Furthermore, gone were the days when an interlocutory appeal is filed and a stay of proceedings is obtained until the interlocutory appeal is dispensed with (see Section 306 ACJA 2015).

Penultimately, I will like to address the issue of the effect in the unlikely event of the passage of these Bills. Any matter pending at the moment can not be affected by any amendment! A law with criminal flavor cannot have retrospective effect! Section 4(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) states as follows:
“Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.”

My position therefore is that these amendments to both the CCB&T Act and the ACJA Act amount (as seen above) not only strange in law, but remains morally a legislative desecration of the hallowed red chambers and ethically a parliamentary sacrilege of all known urbane tenets of a civil society. The timing seems injurious and the acts seem self seeking and self regarding. I take an immediate note that the Deputy Senate President sat on the day the Second Reading came up; without impugning on Order 53 Rule 7 of the Senate Standing Rules - which forbids imputation of "improper" motives to any other Senator, this alone does not satisfy the strict test of nemo judex in causa sua (a judge does not sit in his own cause) on the part of the Senate President, but also on the part of the entire Senate. The Senate President and the Senate as a whole will be judged in the public space has suffering from desperation of no small proportion.

Source: Babajide Omoworare CON is the Senator Representing Osun East Senatorial District and the Chairman Senate Committee on Rules and Business