OrderPaperToday – Two names, to an average Nigerian, are synonymous with the country’s political space for well over a decade – Bola Tinubu and Bukola Saraki.
While the former was a two-term Lagos State Governor and currently the national leader of the All Progressives Congress (APC), Nigeria’s ruling party; the latter served as Kwara State Governor for eight years and later as Senator for same number of years.
Though of different political backgrounds and had only a stint of alliance, the two have something in common – they have both been left off the hook of the country’s Code of Conduct Tribunal (CCT). However, a large segment of the society believe they were let off due to the inadequacy of the CCT law.
Put differently, there appears to be flaws in the Code of Conduct Bureau (CCB) and Tribunal act exploited by these two and other suspects charged with false asset declaration which enables them get off the hook.
It is believed that these loopholes are manipulated because the act has not been amended since its enactment during the military regime.
A stale Act?
The enactment of the Code of Conduct Tribunal (CCT) act can be traced to the late General Murtala Muhammed. However, the act was not in operation until 1988 after General Ibrahim Babaginda’s administration adopted recommendations of a 10-member committee and promulgated Decree 1 of 1989 to give legal backing to the CCB and CCT.
Then in 1999, General Abdulsalami Abubakar’s regime embedded the CCB in the Fifth schedule Part 1, Section 153 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) titled ‘Code of Conduct for Public Officers.’
According to Section 2 of the Code of Conduct Bureau and Tribunal act, the aim and objective of the Bureau “shall be to establish and maintain a high standard of morality in the conduct of government business and to ensure that the actions and behaviour of public officers conform to the highest standards of public morality and accountability.”
The bureau is saddled with the responsibility, in Section 3, to receive assets declarations by public officers, examine the assets declarations to ensure that they comply with the requirements of this Act, take and retain custody of such assets declarations and receive 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” but if a written admission of breaching the act is made, the matter will not be referred to the CCT.
Since enactment, there have been three attempts to amend the Act. The first two attempts were in 2009, sponsored by Senators Smart Adeyemi and Patricia Naomi Akwashiki.
Adeyemi’s amendment sought to give defendants 14 days to respond to invitation while Akwashiki’s recommended 30 days. The current act does not give a stipulated period for response. Another interesting highlight allows citizens to request details of asset declaration. The bills were later thrown out by the Senate.
The last attempt was made in 2016 by Delta North Senator, Peter Nwabaoshi, but it suffered the same fate as the previous. The amendment sought to transfer controlling powers of the CCB and CCT from the Presidency to National Assembly as well as compel the bureau to invite the defendant for questioning before referring the matter to the tribunal.
These amendments got negative reactions from lawyers who argued that the move was illegal and self-serving because Saraki’s trial was ongoing at the time. Also, it was argued that an amendment to CCT act would not be valid without an amendment to the constitution.
The non-amendment of the act since its enactment during the military regime is believed to be hampering the productivity of both the bureau and tribunal, giving room for certain provisions to be abused.
A lawyer, Henry Eni-Otu held that when there is an error in a law and there is no amendment, “the said error will continue to persist and people will continue to exploit it.”
Barrister Inibehe Effiong held similar view specifically pointing out that non review of the CCB act permits some sort of interference from the presidency.
He explained, “It is necessary for the independence of these two agencies to be clearly made out even if the CCB act is listed under section 158 of the constitution, as independent executive bodies. The only way the tribunal can be effective is if it is insulated from political control.”
Inibehe further stated that the current capacity of the bureau and tribunal as obtained in the act limits it from discharging its mandate.
How Tinubu leveraged on the loopholes
Tinubu, who served as Governor of Lagos State from 1999 to 2007 was arraigned before the CCT in November 2007 for allegedly owning and operating foreign bank accounts contrary to provisions of the CCB Act. Section 7 of the CCB prohibits public office holders from maintaining or operating a bank account in any country outside Nigeria.
The charges with suit number, CCT/ABJ/01/11/11 filed against Tinubu by the CCB was dismissed at second appearance by the three-man panel of the tribunal, on the ground that there was no significant case as they were “defective and shoddy.”
Also, the charges was dismissed on the argument that it did not establish a prima facie case against Tinubu meaning that there was no proof of evidence related to the allegation.
“Some (of the foreign accounts) even bear female names…how can the accused be made to answer such charges?” the CCT Chairman, Danladi Umar had said.
Tinubu was also freed because in line with Section 3 of the act which states that ‘before the tribunal begins a trial, the bureau ought to give the defendant the opportunity to reconcile his asset declaration forms.’
The tribunal held that failure to invite Tinubu to explain the discrepancy in his assets forms was fatal to the charge against him. That decision was final because no appeal was lodged.
Our analysis of Tinubu’s case shows that the politician’s legal team leveraged on inadequacies of the CCB Act.
Tinubu was freed because the bureau failed to invite him to clarify the allegation of false asset declaration against him as provided by the act.
The Tribunal relied on Section 3 (d) of the act which stipulates this particular condition that must be fulfilled before a charge is referred to it by the bureau. The act further states that once a public officer admits in writing his/her non-compliance and breach of the constitution and act, it will no longer be necessary to refer the complaint to the tribunal.
Barrister Eni-Otu suggested the section be expunged because it will bring ambiguity and misinterpretation.
He explained: “Generally, in the investigation of criminal allegations, persons investigated are usually invited. It is a common procedure. I see no reason why the law should specifically put it forward because in my opinion, it will slow the wheel of justice.”
He added that Section 36 (5) of the constitution, already presumes that anyone alleged to have committed an offence is innocent and Section 36 (6) (b) states that anyone alleged to have committed an offence, shall be given reasonable time to put up a defence upon given the charge.
“Our law has already covered appropriately issues in respect to allegations or offences said to have been committed. That provision in the act gives room for abuse or misinterpretation. We must give lesser room for misinterpretation of laws by making our law less ambiguous.”
For Barrister Effiong, the constitution already clarified that there is no need to extend invitation before a person can be prosecuted. “It will be good to amend the CCT act of course with these cases we are seeing”, he stated.
Why Saraki triumphed in three courts…
Saraki’s time with the CCT started in 2015 and lasted for three years. The CCB filed an 18-count charge of false asset declaration with suit number CCT/ABJ/01/2015 against the former Senate President. The tribunal noted that Saraki breached the law during his two-term tenure as the Governor of Kwara state.
At the beginning of Saraki’s trial in March 2016, his counsel, Kanu Agabi raised an objection that his client was not invited by the Bureau to deny or accept the allegation in line with the tribunal’s decision in Tinubu’s case. The tribunal however stated that it reached the previous decision in error and accordingly declined to uphold the objection, forcing the former to proceed with the trial.
The Tribunal eventually acquitted Saraki on all the 18 count charges on the grounds that the evidence adduced by the four prosecution witnesses and 49 exhibits were hearsay, hence, cannot grant conviction.
A month later, the Federal Government filed an appeal. At the Court of Appeal, Saraki was cleared of 15 charges and told to return to the tribunal for three.
Saraki being dissatisfied with that judgment appealed to the Supreme Court. The Apex Court held that the entire counts against the defendant had not been proved for him to enter a defence on the ground of evidence, upheld the no case submission then discharged and acquitted him.
The trial which began in March 2016 lasted 1,018 days and ended July 6, 2018.
One of the arguments believed to have paved way for Saraki’s freedom was when he held that the properties acquired were from the proceeds of the sale of rice and sugar, bearing in mind that Section 6 (b) of the CCT Act disallows public officer holders from owning businesses apart from farming.
When Saraki was referred to the tribunal to answer three counts on the purchase of No. 17A and B MacDonald Street, Ikoyi, Lagos worth N260 million, the judge, Justice Tinuade Akomolafe-Wilson who delivered this judgment in the appeal court said the prosecution argued that Saraki did not acquire the property from proceeds of rice and sugar.
Farming as a business is perceived as a safe haven for suspects accused of false assets declaration since the act allows it and the proceeds cannot necessarily be measured.
A similar case is seen between a DSS operative and a prosecution witness, Aminu Ndakpoto during Justice Sylvester Ngwuta’s trial where the latter said the monies found in his apartment were from a palm oil and rice business he did.
Eni-otu described the section on agriculture as “an opening or a leeway for criminally smart people to exploit.”
In a bid to prevent manipulation of this provision, he proposed a juxtaposition of agricultural investment placed by the side with income and earnings within the period of time while the person was in public service and other income spent as an individual.
Barrister Frank Tietie also proposed that the government should increase the financial reporting standards of the public service to make it difficult for a public office holder to siphon money.
Like Onnoghen, Unlike Ngwuta
Sylvester Ngwuta, a Supreme Court judge, was first arraigned before the CCT on a 12-count charge bordering on money laundering, age falsification and possession of multiple international passports in 2017.
His residence was in October 2016 raided by operatives of the Department of State Service (DSS). The operatives discovered huge sums of cash in various denominations in the house. In his defence, the justice said the cash were proceeds of his palm oil and rice business.
On February 10, 2017, the Office of the Attorney-General of the Federation (AGF) filed a 10-count charge against Ngwuta at the tribunal and in May of that year, the CCT quashed the charges and discharged him on the ground that he could not be tried unless he had first been subjected to disciplinary processes of the National Judicial Council (NJC).
In Ngwuta’s case, the major contention is on the ground of being a judicial officer and a public office holder. He was deemed a judicial officer who should not be tried based on provision of Section 153 of the 1999 Constitution (as amended).
The section provided that only the National Judicial Council, a judicial protection body, has the jurisdiction of disciplining judicial officers.
Since his case was not earlier considered by the council, it was dismissed by the tribunal.
Prior to Ngwuta’s, there was a case between Justice Hyeladzira Nganjiwa, a judge and Federal Republic of Nigeria with suit number CA/L/969/2017 at the Court of Appeal, Lagos division for unlawfully enriching himself as a public official by allegedly receiving a total of $260,000 and N8.65m through his bank account between 2013 and 2015.
The court, in Nganjiwa’s case, held that for the judicial officer to be investigated or prosecuted, the NJC must first probe the allegation and make a decision before the charge can be prosecuted. For this reason, the case was dismissed.
That judgement was given in 2017 and only two years after, the CCT made a stand in conflict with that of the Appeal Court in the case of former Chief Justice of Nigeria, Walter Onnoghen, who was arraigned on the 11th of January 11, 2019 at the tribunal on a six count charge of an alleged failure to declare his assets and was found guilty which resulted to his dismissal.
However, in Onnoghen’s case, CCT argued that it had powers to try the judicial officer contrary to the appeal court’s ruling in Ngwuta’s case.
The defect in these trials are largely as a result of inconsistency in the application of rulings which permitted the first two judicial officers off the hook. Onnoghen’s case is largely perceived as politically motivated, a reason many have advanced for the difference.
Barrister Daniel Bwala said that the above flaw is caused by inconsistencies in the application of law.
“Inconsistency is an issue such that the same reason Ngwuta was acquitted is the same reason Onnoghen was convicted. The laws are not actually the fault but interpretation of the laws which aligns with the inconsistencies in the application of the law. Most of the time we say our laws are faulty but even those that are clear we find judges give inconsistent interpretation”, Bwala said.
Reacting to this, Barrister Eni-Otu held that the decision of the appeal court in Nganjiwa’s trial should be challenged at the Supreme Court to get the real position of the law in future and similar cases.
Other loopholes outside the three cases…
Section 10 (3) of the act provides that “public officer shall only accept personal gifts or benefits from relatives or personal friends to such extent and on such occasions as are recognised by custom: provided that any gift or benefit to a public officer on any public or ceremonial occasion shall be treated as gifts or benefits to the appropriate institution represented by the public office…”
This section is fluid and erroneous such that a bribe can be termed a gift when presented during a ceremonial occasion.
An instance is seen in Onnoghen’s trial when the Economic and Financial Crimes Commission (EFCC) traced $30,000 to his account, paid by a Senior Advocate of Nigeria, Joe Agi but Onnoghen stated that the money was not a bribe but gifts for his daughter’s wedding.
Eni-Otu suggested the provision be reviewed as it is unrealistic to determine what constitutes gifts and bribe.
He also suggested an amendment to the constitution to allow the tribunal be of equal status with superior courts of record and allow it possess the powers to prosecute and convict.
“The powers of the tribunal should be stated expressly to be of equal status with superior court of record as it relates to the breach to the Code of Conduct Tribunal”, he stated.
Bwala advised that the position of chairmanship of the tribunal be headed by a retired Justice of the Supreme Court which will invariably give an element of significance to the tribunal’s proceedings and rulings.
“On CCT Chairman Seat, the best person to head the CCT is a retired Justice of the Supreme Court. If you bring a retired Justice of the Supreme court as the Chairman of CCT, I am telling you if you bring any judge before him, they will take it serious”, he said.
‘This report was supported by The Premium Times Centre for Investigative Journalism’