By Eze Onyekpere
The challenges encountered in the anti-corruption war especially in using the judicial and quasi-judicial systems to make public officers accountable provide an opportunity for reform. In this case, reforming the system deepens the democratic agenda, increases transparency and accountability in governance and strengthens oversight institutions and mechanisms. Social improvement and transformation are usually forged in situations where systems and mechanisms have been challenged to deliver services taken for granted by taxpayers.
The Code of Conduct Bureau and the Code of Conduct Tribunal have been in the eye of a storm of controversies since the arraignment and trial of the Senate President, Bukola Saraki, before the CCT. These controversies are pregnant and provide the opportunity for a systemic reform. The CCB is established as an executive body under Section 153 of the constitution of the Federal Republic of Nigeria 1999 comprising of a chairman and nine other members appointed by the President and subject to the confirmation of the Senate. By the Third Schedule to the Constitution, the CCB is, inter alia, to receive complaints about non-compliance with the provisions of the Code of Conduct or any law in relation thereto, investigate the complaints and where appropriate, refer such matters to the CCT. The CCB is also to ensure compliance with, and where appropriate enforce the provisions of the Code of Conduct or any law relating thereto.
The CCT is established by Paragraph 15 of the Fifth Schedule, Part One of the constitution and it consists of a chairman and two other persons. The members of the CCT are appointed by the President on the recommendation of the National Judicial Council. The NJC is to make its recommendations to the President on the advice of the Federal Judicial Service Commission. The chairman is by law a person who has held the office of a judge of a superior court of record in Nigeria or is qualified to hold such office. The chairman and members of the CCT enjoy security of tenure and retire at the age of 70 and are entitled to pension for life at a rate equivalent to their last annual salaries in addition to other retirement benefits they may be entitled. This is related to the pension rights of judicial officers provided in Section 291 of the 1999 Constitution.
To fill any procedural void, the CCT is empowered to use the Criminal Procedure Act or the Criminal Procedure Code as the case may be, if there is a lacuna in its rules. Upon finding a public officer guilty of contravening the provisions of the Code of Conduct, the CCT has powers to impose punishment as follows: vacation of office or seat in any legislative house as the case may; disqualification from membership of legislative house and from holding of any public office for a period not exceeding 10 years and seizure and forfeiture to the state of any property acquired in abuse or corruption of office. Essentially, we have a CCT that has powers to impose a variety of far-reaching punishments. For instance, a politician who is barred from politics for 10 years is effectively shoved out of contention – at 50 or 60 years of age, the political career of such a politician is virtually eclipsed. The mere pronouncement of guilt makes the person an ex-convict and forfeiture of properties is a serious indictment.
The implication of the foregoing is that we have a court by whatever name called and dressed with full powers to pronounce far-reaching sanctions. By Paragraph 14, Part One of the Third Schedule to the 1999 Constitution, the appointment procedure for the CCT chair and members starts like the procedure for nominating persons for appointment to the offices of the Chief Justice of the Federation and Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court.
Appeals lie from the decisions of the CCT to the Court of Appeal at the instance of any party to the proceedings. The sanctions to be imposed by the CCT are without prejudice to other penalties that may be imposed by any law if a crime is revealed. Thus, a public officer may still be prosecuted and cannot be heard to plead that he has been tried and punished before as a bar to the criminal proceedings. And the frightening aspect of the powers of the CCT is that the punishment it pronounces, though subject to appeal, is not subject to the prerogative of mercy.
However, whilst Paragraph 13 (b) of Part One of the Third Schedule to the constitution states that the Federal Judicial Service Commission may recommend to the NJC, the removal from office of a number of judicial officers including the chair and members of the CCT, Paragraph 21 (a) and (b) of the same Third Schedule omits the CCT chair and its members from the list of persons that the NJC should recommend their appointment to the President or exercise disciplinary control over. Thus, the CCT with its enormous powers to punish for the contravention of the Code of Conduct is not under the disciplinary oversight and purview of the NJC. This is further compounded by Section 318 of the constitution which omits the CCT chair and members of the Tribunal from the list of judicial officers. Also, the CCT chair and members do not subscribe to the judicial oath before assumption of office. Herein lies the contradiction that a body exercising judicial functions is not supervised by the NJC but by the Presidency. In the circumstances, the removal of the CCT chair and members is left to the President acting upon a prayer by two thirds majority of each House of The National Assembly praying that such a member be removed for inability to discharge the duties of office whether arising from misconduct or infirmity of mind or body or for the contravention of the Code of Conduct.
The foregoing lays a solid foundation for the amendment of the constitution and related laws to transfer the CCT to the judiciary and designate its chair and members as judicial officers who will be subject to the disciplinary oversight of the NJC. The funding of the CCT should also come from the judicial purse so as strengthen its independence and ability to function without looking over its shoulders in fear. A body exercising judicial powers for the implementation of the highest standards of ethics in government such as the CCT should be constituted by men and women of the highest ethical standards. It should not be left to the mercy of men, women and institutions it is supposed to check.
In the instant case of the Senate President’s trial before the CCT, both the leadership of the executive and legislative arms appear to have an interest in the matter and even with a series of allegations publicly made against the CCT chair, it has become extremely difficult for the National Assembly or the President to act as required by law whilst the NJC stands with its hands constitutionally tied to its back. The time has come for the reform of the CCT to improve its effectiveness.