Dear Mr. Speaker,
Re: Proposed Amendment of the Code of Conduct Bureau and Code of Conduct Tribunal Act by the National Assembly
Our attention has been drawn to the ongoing moves by both chambers of the National Assembly to amend the Code of Conduct and Code of Conduct Tribunal Act (Cap. C15) Laws of the Federation of Nigeria, 2004. (hereinafter referred to as “the Act”). Although the House of Representatives has not commenced deliberations on the Bill for the amendment of the Act, the Senate passed it for the second time last week, barely 48 hours after its presentation by its sponsor, Senator Peter Nwaoboshi.
In view of the ongoing trial of the Senate President, Dr. Bukola Saraki before the Code of Conduct Tribunal over the alleged failure to declare his assets the hasty move to amend the Act is insensitive, suspicious, self-serving and opportunistic. It is also illegal and unconstitutional in several respects. Firstly, to the extent that the proposed amendment is designed to serve the interests of an individual, it is a violation of section 4(2) of the Constitution which has empowered the National Assembly to make laws “for the peace, order and good government of the Federation or any part thereof…”
Secondly, notwithstanding that the Senate President has decided not to preside over the plenary in the Senate whenever the bill is being debated the whole exercise is a clear violation of paragraph 1 of the Code of Conduct for Public Officers enshrined in Part 1 of the Fifth Schedule to the Constitution which stipulates that “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.”
Thirdly, section 3 of Act which the National Assembly seeks to amend has become spent. Senator Nwaoboshi was reported to have said that he was proposing an amendment to section 3 of the Act to provide “for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.” With respect, section 3 of the Act is in pari materia with Paragraph 3(e) of Part 1 of the Third Schedule to the Constitution. To that extent, section 3 of the Act is inoperative and invalid in every material particular. In Attorney-General of Abia v Attorney-General of the Federation (2001) 17 WRN 1 the Supreme Court held:
“Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.”
In the light of the authoritative pronouncement of the Supreme Court on lack of legislative powers on the part of the National Assembly to enact laws which have similar provisions to those of the Constitution section 3 of the Act has become a duplication of the relevant constitutional provision. Consequently, its proposed amendment is illegal and unconstitutional. In other words, without amending the relevant provisions of the Constitution the proposed amendment of the Act is an exercise in futility. As the proposed amendment cannot alter, enlarge or curtail the relevant provisions of the Constitution the Senate ought not to continue to waste precious time and resources on the illegal exercise.
Since the Constitution has prohibited the enactment of ex post facto laws in circumstances of this nature the National Assembly ought to know that the ongoing moves to amend the Act cannot have any effect on the celebrated trial of the Senate President. Having solemnly sworn to strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution the members of the National Assembly should stop subverting the obligation of the Federal Government to “abolish all corrupt practices and abuse of power.”
In view of the foregoing, we are compelled to urge the House of Representatives ably led by your good self not to lend its weight to the illegal amendment of the Act. You may wish to remind your colleagues in the House that when the Corrupt Practices and other Related Offences Act 2000 was amended in 2003 on account of the investigation of allegations of corrupt practices involving the leadership of the Senate the Federal High Court set aside the amendment as it violated the Constitution. As the same fate certainly awaits the Bill to amend the Code of Conduct Bureau and Code of Conduct Tribunal Act it is hoped that the House will persuade the Senate to terminate further debates on it.
Being a letter to Yakubu Dogara, the Speaker of the House of Representatives, by Lagos-based lawyer and human rights activist, Femi Falana (SAN). It was also copied to Dr. Abubakar Bukola Saraki, the Senate President.
