Before the President assents to the CCB/CCT Bill

ACCORDING to media reports, the National Assembly, on Thursday, October 27, 2016, arrogated to itself the powers to control the Code of Conduct Bureau and the Code of Conduct Tribunal via a Bill which purportedly amended sections 12 (1) (2), 21 (1) and 22 (1) of the Code of Conduct Bureau and Tribunal Act, 2004. Section 12 (1) of the Act provides that “12 (1) The President may by order exempt any cadre of public officers from the provisions of this Act if it appears to him that their position in the public service is below the rank which it considers appropriate for the application of those provisions.” Subsection (2) thereof empowers the President to confer “on the Bureau such additional powers as may appear to it to be necessary to enable it to discharge more effectively the functions conferred upon it under this Act.”

Section 21 of the said Act provides, “21 (1) The tenure of office of the staff of the Tribunal shall, subject to the provisions of this Act, be the same as that provided for in respect of officers in the civil service of the Federation.” Section 22 (1) then unambiguously states that “…a person holding the office of chairman or member of the Tribunal shall vacate his office when he attains the age of seventy years.”

It would be clear presently that the above provisions were lifted almost ipsissima verbis from the Constitution of the Federal Republic of Nigeria 1999 (as amended), which, in its section 157 (1) states that the Chairman and members of the Code of Conduct Bureau may only be removed from office by the President acting on an address supported by two-thirds majority of the Senate. In paragraph 1 of Part 1 of the Third Schedule thereof the Constitution expressly provides that “The Code of Conduct Bureau shall comprise the following members (a) a Chairman; and (b) nine members, each of whom…shall vacate his office on attaining the age of seventy years.” But the new Bill reduces the tenure of the Chairman and of all members of the Code of Conduct Bureau to a term of five years subject to the confirmation of the Senate! In the language of the new Bill, “The Chairman and members shall serve for a term of five years, subject to renewal for one further term.” Yet, sub-paragraph (1) of paragraph 16 of Part 1 of the Fifth Schedule to the Constitution unequivocally provides that “The tenure of office of the staff of the Code of Conduct Tribunal shall, subject to the provisions of this Code, be the same as that provided for in respect of officers in the civil service of the Federation”, whilst sub-paragraph (1) of paragraph 17 thereof categorically states that “a person holding the office of Chairman or member of the Code of Conduct Tribunal shall vacate his office when he attains the age of seventy years.” A civil servant retires after thirty-five years in office or attains the age of sixty years, whichever is earlier.

Sub-paragraph (4) of paragraph 17 emphasizes that “A person holding the office of Chairman or member of the Code of Conduct Tribunal shall not be removed from office before (the) retiring age (i.e. age 70) save in accordance with the provisions of this Code.”
Sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) enshrine the doctrine of separation of powers by delimiting the powers of the three arms of government, the Legislature, the Executive and the Judiciary. The assigned powers in the said sections cannot, and should not, be transcended, mistaken or forgotten by any of the arms of the government because they are defined and limited by a written constitution. Any attempt by any arm of government to intrude into the province of the other arm and/or to intermeddle with the prerogatives of the other(s) would be unconstitutional, null and void.

In the classic case of William Madbury vs. James Madison (1803), a cause célèbre, Honourable Chief Justice John Marshall had cause to ask, “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” He added, with approval, “Certainly, all those who have framed the written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”

As if to dramatize the self-serving nature of the Bill, a portion of it makes it compulsory for a breach of, or non-compliance with the Code of Conduct Act to be brought to the notice of the alleged offender to enable him to make a written admission of such a breach or non-compliance, and where such is done, there should be no reference to the Tribunal! This strange provision forecloses the need for a Code of Conduct Tribunal. Or can there be a good law without sanctions?

The National Assembly knows, or should know, that without amending the 1999 Constitution with regard to those provisions of the Code of Conduct Bureau and Tribunal Act, 2004, which it purportedly amended, its amendment thereof would be unconstitutional and of no effect. The questions the National Assembly should ask itself should include the following: did it comply with the provisions of section 9 of the 1999 Constitution (as amended) regarding the mode of altering the provisions of the Constitution before amending the provisions of the Code of Conduct Bureau and Tribunal Act, which is rooted in the Constitution? If the country is governed by the Rule of Law and by the Due Process of the Law, how can the National Assembly amend the Constitution or any law derived therefrom and appropriate the powers conferred on the Executive by the Constitution in utter disregard of Due Process? Or is there any zone of twilight in which the National Assembly and the Constitution of the Federal Republic of Nigeria 1999 (as amended) possess concurrent authority? The President would be right to return this Bill, the CCB/CCT Bill, to the National Assembly for reconsideration.

• Chris Akiri is a legal practitioner in Lagos.