Strengthening The Code of Conduct Bureau Presented By Prof. Yemi Osinbajo, S.A.N

Introduction The Code of Conduct for Public Officers is a component of the Nigerian anti-corruption and transparency framework. It is perhaps the first formal legislation creating offences and sanctions for official corruption and other acts in breach of the prescribed ethics for public officers. Of considerable significance is the fact that the entire code of conduct regime under Nigerian Law is provided for in the Constitution. The Constitution provides for the Code of Conduct itself, the categories of public officers who are subject to its provisions, the Code of Conduct Bureau, which is to enforce compliance with the Code of Conduct, and the Code of Conduct Tribunal-which is to try cases of infraction of the Code of Conduct. This is both its strength and its weakness.

Contd The entrenchment in the Constitution means that it cannot be altered at all as might an Act of the National Assembly. This also means that amendments to the provisions establishing the Code of Conduct Bureau and Tribunal is not possible by an Act of the National Assembly without an amendment to the Constitution itself. It is in fact unconstitutional to repeat constitutional provisions verbatim in another Law of the Legislature. [A.G Abia State V. A.G Federation (2002) 6 NWLR (Pt. 763) 264 SC.] However Section 15 (4) of Part 1 of the 5 th Schedule of the Constitution to the effect that National Assembly may confer on the Code of Conduct Tribunal such additional power s as may appear necessary to enable it more effectively discharge the functions conferred on it by the Schedule. It is also noteworthy that some of the provisions in several other anti- corruption legislation overlap the Code of Conduct provisions of the Constitution.

Code of Conduct Provisions of The Constitution Vs. Code of Conduct Bureau and Tribunal Act The Constitutional provisions for Code of Conduct of public officers is very elaborate (see: Part 1, 5 th Schedule CFRN 1999) Various sections of the Code of Conduct Bureau and Tribunal Act are in conflict with the Constitutional provisions on the subject matter e.g: – The non-liability and indemnity clause enuring for the benefit of the Chairman and Members of the Bureau in any action or litigation against them for liabilities incurred in the course of the discharge of their offices is not recognised by the Constitution (see Section 19 of the Act) – unlike the Act, the Constitution obliges the Bureau to make declaration of assets of public officers available for inspection of any Citizen of Nigeria on terms to be determined by an Act of the National Assembly (Compare Para 3 (c) Part 1, 3 rd Schedule CFRN and Section 3 (c) of the Act

Code of Conduct Provisions of The Constitution Vs. Code of Conduct Bureau and Tribunal Act (Contd) – While under the Act, the Bureau’s powers is limited to receiving complaints about non-compliance with the Code of Conduct and referring same to the Tribunal, the Bureau has powers to investigate such complaints, ensure and enforce compliance with the Code under the CFRN (Compare Para 3 (d) & (e) of the CFRN and Sec 3 (d) of the Act) – The proviso to Section 3 (d) of the Act in respect of waiver of reference on admission is not recognised under the Constitution. – While the National Assembly is mandated to make laws for the discipline of staff of the Bureau in the Constitution, the Act mandates the Presidents to make rules in that respect (Compare Section 4 of the Act and para 3 (f) Part 1 Schedule 5 of the Constitution)

Code of Conduct Provisions of The Constitution Vs. Code of Conduct Bureau and Tribunal Act (Contd) – Under the Constitution, the public officers prohibited from owning foreign bank accounts are restricted to political office holders and do not include members of the judiciary while the Act makes a sweeping generalisation in that respect. (Compare par 3 Schedule 5 of the Constitution with Section 7 of the Act) – The age of the declarant’s children whose properties must also be declared vary. Under the Constitution, the age limit is 18 years while the Act peg the age at 21 years. (compare par 11 Schedule 5 of the Constitution with Section 15 of the Act) – There is no provision in the constitution in respect of declaration of asset by a serving officer similar to Section 15 (c) of the Act. – Under the Act, the Tribunal’s power to impose the penalty of vacation of office is in respect of all public offices whereas the penalty can only be meted in respect of legislative offices (Compare par 18 (2) (a) & (b) of the Constitution with Section 23 of the Act. – The power of the Tribunal to issue search warrants under Section 25 of the Act is not stipulated for under the Constitution.  These and other provisions of the Act are void for being inconsistent with and duplicating the provisions of the Constitution.

Lacunae In Constitutional Code of Conduct Provisions – No provision for enforcement of compliance mechanism in respect of powers granted the Bureau in paragraph 3 (d) Part 1 Schedule 3 of the Constitution. – Providing for a “without prejudice” prosecution contrary to the “double jeopardy” prohibition provision Section 36 (9) of the Constitution. (see par 18 (6) Schedule 5 of the Constitution) – Non-inclusion of coercive powers of the Code of Conduct Tribunal as contained in the Section 25 of the Act – Disregarding the immunity clause in its power-of-prosecution provisions (see Attorney General of the Federation V. Atiku Abubakar (2007) 8 NWLR (Pt 1035) 117. – Limiting the penalty of vacation of seats only to Legislative Houses members. – Excluding judicial officers from the prohibition from maintaining foreign accounts.

Focus of any Prospective Legislation on Code of Conduct – Conditions for inspection of assets declaration forms of public officers by any Nigerian Citizen – Legal Regime for the appointment, promotion, dismissal and general disciplinary control of staff of the Bureau – Additional functions of the Bureau in addition to those conferred by the Constitution. – Expansion of the list of public officers prohibited from maintaining foreign accounts – Exemption of any cadre of public officers from the provisions of paragraphs 4 & 11 of the Code of Conduct. – Conferring wider powers on the Tribunal to enable it carry out its functions more efficiently – Expanding the scope of punishments to be meted by the Tribunal for infraction of the Code of Conduct – Enacting rules for the Practice and Procedure of the Tribunal.

Thank You