Reforming the Code of Conduct Tribunal (2)

The third challenge that should be resolved in reforming the constitutional Code of Conduct is based on the interpretation of the Constitution and the Code of Conduct Bureau and Tribunal Act (CCBTA) on the quorum of the CCT and what is deemed as the proper constitution of the CCT. The Courts have consistently held that by S.28 of the Interpretation Act, for the CCT to be properly constituted, it must consist of a chairman and one member. This presupposes that at each sitting, the chairman must mandatorily be a member.

In the case of Owolabi v Federal Republic of Nigeria [(2018) LPELR – 44959 (CA), pp. 21-24.], where a conflict of interest scenario was made out against the chairman of CCT by an appellant, the Court of Appeal held that the charge against the appellant should be struck out pending when the CCT is reconstituted with another chairman. This scenario means that the accused person cannot be prosecuted at the CCT until the chairman retires or is removed from office, which may mean waiting for a period of more than ten years. This scenario provides a basis for the amendment of the Constitution to ensure that the CCT can sit without the chairman and that a quorum can be formed without just one person in the whole Federation of Nigeria.

Recall that recommendations have been made for the CCT to operate divisions like the Court of Appeal, each division of three members should have a quorum of two members to be led by the most senior member and there would be no circumstance when the CCT will be stalled due to the unavailability of one member, especially when one member is asked to recuse himself. This will also call for the amendment or expunging of S. 12 of the CCBTA to bring it in conformity with the Constitution. The section requires the chairman or any other member of the CCT authorised by the chairman to take notes in writing of the oral evidence or so much thereof as he considers material in a book and the book is to be signed by the chairman and not less than two other members of the CCT at the conclusion of each day’s proceedings. If the quorum is two members, then the provision for two other members signing the record of proceedings will only arise if all three members are present. Also, the wordings of a part of the section “not less than two other members” suggests that the membership is more than three which is not the case.

Assuming that the chairman and one other member are sitting and the third member is absent and indisposed to be part of proceedings, and the chairman and the other member disagree on a decision, how would the diversity of opinion be resolved. Alternatively, assuming the two members take a position different from the learned chairman, how would this diversity be resolved? It seems the law did not anticipate diversity of opinion in reaching a decision among only two members of the CCT or a two to one scenario where the chairman takes a different position. It seems that the wording of the Constitution and the CCBTA gives pre-eminence to the chairman of the CCT. An explicit constitution amendment or statutory provision addressing this challenge is imperative.

The fourth challenge is on the status of the CCT chairman and members of the CCT- whether they are judicial officers under the National Judicial Council (NJC) or not. S.17 (3) of the Code of Conduct provides as follows: “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 praying that he be so removed for inability to discharge the functions of the office in question (whether arising from infirmity of mind or body) or for misconduct or for contravention of this Code. A person holding the office of Chairman or member of the Code of Conduct Tribunal shall not be removed from office before retiring age save in accordance with the provisions of this Code”.

Thus, the process of removal from office shows the high regard in which the Constitution holds the chairman and members of the CCT. They are not to be removed at the whims and caprices of the President or any other authority. It needs the collaboration of the two houses of the National Assembly – the Senate and House of Representatives as well as the concurrence of the President. Misconduct has been defined in the interpretative S.19 of the Code as follows: “Misconduct” means breach of Oath of Allegiance or Oath of Office of a member or breach of the provisions of this Constitution or misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities or conviction for treason or treasonable felony”.

Paragraph 13 (b) of Part One of the Third Schedule to the Constitution states that the Federal Judicial Service Commission may recommend to the National Judicial Council, the removal from office of a number of judicial officers including the chairman and members of the CCT. However, paragraph 21 (a) and (b) of the same Third Schedule omits the CCT chairman and members from the list of persons that the National Judicial Council 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 National Judicial Council.

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. Here lies the contradiction that a body exercising judicial functions and powers is not supervised by the NJC but by the Presidency. In the circumstances, the removal of the CCT chairman and members is left to the President acting upon a prayer by two thirds majority of each House of NASS praying that such 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 Constitution needs to be amended so that the CCT chairman and other members are recommended for appointment to the President by NJC and they should be brought under the disciplinary purview of the NJC as well as being designated as judicial officers. This will be in tandem with Third Schedule Part 1, paragraph 13 of the Constitution which gives the Federal Judicial Service Commission power to advise the NJC in nominating persons for appointment as the chairman and members of the CCT.

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Reforming the Code of Conduct Tribunal (2)

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