Why Code of Conduct Tribunal can’t try CJN, by Emmanuel Jakpa

Word on the street is that the Chief Justice of Nigeria, Honourable Justice Walter Onnoghen admitted guilt to the Code of Conduct investigators and tried to excuse it by pleading mistake.

The next line of argument is that ignorance of the law is not an excuse. I heard it from a layman like Fisayo Soyombo who said that the Honourable Chief Justice of Nigeria has already been convicted in the court of public opinion. Then I heard it from Prof. Oyebode on national television and then from a radical young lawyer I admire so much Mr. Umar Sa’ad. The question really is who is ignorant of the law?

According to the reports in the news, Chief Justice Onnoghen was visited by operatives of the Code of Conduct Bureau (CCB) on 10/1/19 and he admitted in writing that a Standard Chartered Bank Account declared by him in 2016 for the first time was opened sometime in 2011. Going by a strict interpretation of Section 15 of the Code of Conduct Act it ought to have been declared at least 4 years before in 2012 or thereabouts, it is implied. It is this admission in writing that emboldened the CCB and Attorney General in filing charges to file an application for the CJN to resign from office together with the charge. I don’t know how a court can grant a request for a defendant to resign. Maybe it is the defendant that will grant the prayers of the prosecutor? But that is by the way side.

The real question is this; did the CJN’s admission prove that he is guilty of a crime? The law is that he is not guilty of anything and in fact under the Code of Conduct Bureau and Tribunal Act his admission in writing rather than being proof of guilt is in fact a defence – perhaps, the strongest possible defence under the law. Yes, you heard me right!

The Chief Justice’s hasty investigation and botched arraignment made his traducers overlook the law. They were in a hurry to bag their prey, but they got the wrong one. Speed is nothing if you are travelling in the wrong direction. Especially if you are travelling in the opposite direction to the law.

On the 9th of January 2019 the Code of Conduct Bureau received a petition from President Buhari’s sidekick and former party publicity secretary, one Dennis Aghanye. The CCB investigated the petition on the 10th of January 2019 and charged the Chief Justice of Nigeria to the Code of Conduct Tribunal on the 11th. Not to be outdone the CCT fixed the arraignment for the very next working day, the 14th of January 2019. Talk of a rush to an extrajudicial lynching!

I submit that the there is absolutely no basis in law for the charge before the CCT.

Section 3 of the Code of Conduct Bureau and Tribunal Act, Chapter C15, Laws of the Federation of Nigeria 2004 provides as follows;

The functions of the Bureau shall be to –

Receive assets declarations by public officers in accordance with the provisions of this Act;Examine the assets declarations and ensure that they comply with the requirements of this Act and of any laws for the time being in force;Take and retain custody of such asset declarations; andReceive complaints about non-compliance with or breach of this Act 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 sections 20 to 25 of this Act;

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Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary.

Lawyers know what a proviso is. That last part of the section where it says, “provided that where…” is a proviso in law. You can call it a condition precedent or an exception, as the case may be. Black’s Law Dictionary says a proviso is (1) a limitation, condition or stipulation upon whose compliance a legal or formal document’s validity or application may depend. (2) in drafting, a provision that begins with the words provided that and supplies a condition, exception or addition.

If you look at entire Act, you would see that Section 3(d) is the only provision that gives the CCB power to refer cases of investigation to the CCT. And if you look closer, you would also see that the power of the Bureau to refer a person under investigation to the Tribunal for trial is subject to the proviso. But what the proviso clearly says is that once the person under investigation makes a written admission of the breach or non-compliance of which he is accused, the Bureau no longer has power to refer the matter to the Tribunal. The word used is SHALL, a word which lawyers know is mandatory and cannot be interpreted as permissive in this context.

So when commentators like Prof. Oyebode gloat on prime time television that the CJN admitted non-compliance and thereby he finished himself. You can now see why he is the CJN and they are not!

Too many lawyers have started thinking like President Buhari – that you can select what part of the law you want to apply depending on whether your friends or your enemy is concerned.

There are at least three implications of the proviso to Section 3 of the Code of Conduct Act I want to draw attention to. First, that the Bureau has no power to refer the CJN or any person to the tribunal for trial if indeed such a person has admitted to certain non-compliance in writing. Second, without the Bureau’s reference/referral the Tribunal has no jurisdiction to try the CJN for any act of non-compliance. If you look at the legislative scheme, you would notice that there is no independent power of the Tribunal to originate cases. That is to say all cases must come from the Bureau on the condition that the person sought to be tried has denied the non-compliance or breach of the law. Finally, it means that the Bureau failed in its responsibilities to act in line with the provisions of the Act only and violated Section 5 of the Act which obligates a public officer not to allow conflict between his personal interests and his duties and responsibilities.

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By virtue of Section 24(2) only the Attorney General of the Federation or his delegate can prosecute. Thus the Bureau’s power of reference can only be exercised through the office of the Attorney General. My question is did the CCB or the Attorney General read the proviso to Section 3(d). it is the same Attorney General that has now instructed the NFIU to freeze the CJN’s accounts. Under what law?

It is clear that the true intention of the Code of Conduct Act is to enforce disclosure of the assets of public officers. It does not only punish false disclosure and non-disclosure it positively rewards truthfully disclosure even if done late. It is thus clear that Section 3 overrides Section 15 of the Act.

Section 15 of the Act provides,

A public officer shall, within fifteen months after the coming into force of this Act or immediately after taking office and thereafter –At the end of every four years;At the end of his term of office; andIn the case of a serving officer, within 30 days of the receipt of the form from the Bureau or at such other intervals as Bureau may specify

Submit to the Bureau a written declaration in the Form prescribed in the First Schedule to this Act or, in such form as the Bureau may, from time to time, specify all his properties, assets and liabilities and those of his spouse or unmarried children under the age of twenty one years.

It is this section that is relied upon to say that the CJN ought to have declared his Standard Chartered Account opened in 2011 at least in 2012 and hence his admission that he did not do so until 2016 is proof that he breached the Act.

Assuming that his non-declaration in 2012 is a breach of the Act, the proviso to Section 3(d) provides that if he admits as much in writing, the Bureau SHALL not refer his case to the Tribunal.

What the CCB and Attorney General of Federation has done is to divorce Section 15 from Section 3 and treat the categories of offences created by Section 15 as strict liability offences. I submit that it is impossible to do so without doing violence to the law, unless an exception can be found to the proviso to Section 3(d).

By standing the law on its head, the CCB and the Attorney General maybe encouraging public officers to break the law. A public officer who declares an asset after the due date (going by Section 15) instead of making an additional declaration and admitting in writing this non-compliance, will be encouraged to retrieve his early declaration and retrospectively declare.

Anyone familiar with the process of filing assets declaration forms, know that it is signed before a high court judge. A corrupt senior judge who makes a mistake would have retrieved the earlier one and destroyed it and commissioned another one. Which high court judge would not jump at the opportunity to be of assistance to MiLord, the Chief Justice of Nigeria? If the CJN had done this in 2016 when he realized his error and removed the earlier ones, no one would have embarrassed him today. But he did the right thing.

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Section 3(b) of the Act says the Bureau’s functions include examining the assets declarations and ensuring they comply with the requirements of law. Read together with the proviso, it follows that if in the course of examining the assets declaration forms the Bureau finds any lapse it can draw the attention of the declarant to the fact and if he admits in writing that the observation is true, that is the end of the matter. That was how the law was meant to function.

Until President Buhari came along, that is. Nowadays, those parts of the law which are exculpatory are ignored and the entire legislative scheme distorted. Isn’t it interesting that we have yet to see a single serious anti-corruption legislation made by the Buhari Presidency? Maybe they will do something before May 29, 2019.

The essence of the Code of Conduct Act is to ensure that public officers declare their assets and not to punish them for doing so (even if late, since that is a non-compliance with the time frame requirements). The proviso to Section 3 is a breakwater that the Bureau cannot pass over, unless the person being investigated denies the act of non-compliance. Section 15(2) buttresses that point, when it provides that “any statement in any declaration that is found to be false by any authority or person authorized in that that behalf to verify it, shall be deemed to be a breach of this Act.”

For a statement in a declaration to be actionable it must have been found to be false by the authority or person authorized to verify it. In other words, after the person has been given opportunity to deny or admit and he denies, the verifying authority (the Bureau) can investigate and prove it was false. It is in such cases and such cases alone that the person is referred to the Tribunal. However in cases like the CJN’s where he has admitted his non-compliance since 2016 the Bureau was wrong to refer his case to the Tribunal.

Why then did the CCB overstep its boundaries in the face of the clear provisions of the law? Politics.

Mr Dennis Aghanya who wrote the petition said it all, in his petition to the Bureau referenced the forthcoming elections and said we are only 30-something days away from the general elections in which the CJN will play an important role. The motive was political. It was a two way gamble, on the one hand if the CJN is stampeded into resigning, he would be removed from office and whoever takes over after him would be made more pliable by the climate of fear created by this unusual event. The biggest beneficiary of such a seismic event would be the sitting President. If on the other hand the CJN refuses to resign but chooses to fight on in court, the Buhari media octopus can then pillory him all over the place. This would impede the smooth functioning of the judicial arm. Every act whether administrative or judicial that he performs as Chief Justice of Nigeria would be considered fair game. In the event that an election petition comes to the Supreme Court and the judicial outcome is not in favour of President Buhari or his party, we are likely to witness massive protests or other acts which will imperil national security.

Having acted in ignorance of the law or in bad faith or both, the entire Bureau ought to resign. The Attorney General who is saddled with the task of commencing prosecutions but did not bother to read the law and proceeded with haste to institute proceedings should equally fall on his dagger. But then, am being carried away, this is Naija. They will not.

Emmanuel Jakpa, a legal practitioner wrote in from Warri

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