The Supreme Court will, on February 5, decide whether the Code of Conduct Tribunal (CCT) can try Senate President Bukola Saraki for alleged false asset declaration. ADEBISI ONANUGA reviews the case.

On February 5, the Supreme Court will decide whether the Code of Conduct Tribunal (CCT) can adjudicate on the criminal proceedings instituted against Senate President Bukola Saraki for alleged false declaration of assets by the Code of Conduct Bureau (CCB). Being the highest court in the land, its decision on the matter is crucial. It will determine whether CCB can proceed in the matter.

The Senate president had approached the Supreme Court following the Court of Appeal, Abuja Division's split decision which dismissed his appeal over his trial before the CCT. Presiding Justice A. A. Adumien Moore and Justice Mohammed Mustapha dismissed the appeal; Justice Joseph Ekanem delivered a dissenting judgement.

Saraki is praying the apex court to set aside the criminal charges. His contention is that the CCT is not competent to try him. He argued that it is constitutionally mandated that any CCT panel must comprise three members as against the two which the tribunal set up to try him is composed of, among other issues.

Because of the serious constitutional issues raised by Saraki's counsel Joseph Daudu (SAN), the Supreme Court has empanelled the full court of seven justices to adjudicate on the matter.

If the apex court goes by the majority decision of the Court of Appeal, it will uphold the trial of the Senate President by the CCT. The court, in reference to section 28 of the Interpretation Act will also hold that the tribunal led by Justice Danladi Umar could sit with the chairman and one other member and restate the position of the lower court that the CCT and CCB Act and the Constitution did not talk about a quorum.

But in the matter of the minority decision of the Court of Appeal, the apex court will have to contend with three key issues viz: the interpretation of paragraph 15 (1) of the Fifth Schedule of the 1999 Constitution regarding the composition of the tribunal; the issue of whether the CCT is a court of criminal jurisdiction as well as finding answer as to whether a lawyer in the office of the Attorney-General of the Federation (AGF) can file charges at the tribunal without the AGF’s express authorisation as contained in Section 174 (1) of the 1999 constitution, as amended.

Paragraph 15 (1) of the Fifth Schedule provides that the CCT shall consist of a Chairman and two members. It reads: "There shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons". And in respect of the number of persons making up the tribunal, Section 20 (2) of the CCB and CCT Act, simply says "consist of" and not "quorum".

Since its judgment of last October 30, there have been diverse opinion from legal minds on the decision, most of them centering on whether or not the CCT is a court of records, whether or not it has power to try criminal matters and whether or not it is inferior to a high court.

For instance, a retired justice of the Supreme Court, Justice A. G. Karibi-Whyte in his analysis of the provisions said it appears from the enabling law that the jurisdiction of the Code of Conduct Tribunal (CCT)is confined and limited to the conduct clearly outlined in paragraphs 1 - 13 of the Fifth Schedule.

He noted: "It is pertinent to observe that the law which enables the CCT to try persons who have contravened the provisions of the Code have carefully avoided the use of the expression 'criminal' to describe the conduct so punished. It does not contemplate any other conduct. Rather it provides in paragraph 18(3) that the sanctions in paragraph 18 (2) may be imposed, without prejudice to the penalties in any law where the conduct is also a criminal offence."

He said the expression, public officer, public office have also been defined. On the limited jurisdiction of the CCT, Justice Karibi-Whyte said: "Its jurisdiction is limited to the subject matter listed therein and a prescribed by the National Assembly. "The Code of Conduct Tribunal has not been vested with exercise of criminal jurisdiction even by implication of the scope allowed in the sanction it can impose." A former Nigerian Bar Association (NBA) president Olisa Agbakoba (SAN) referred to Section 6 of the Constitution which listed the superior courts and emphasised that the CCB and the National Industrial court are not listed.

He concluded that since CCB is not listed as a superior court, then it is an inferior court, adding that because of its being an inferior court, it is amenable to the judicial review jurisdiction of a superior court of record, such as the Federal High Court. But to another lawyer, Vincent Okwechime, whether or not the CCT established under Section 15 of Part 1 of the Fifth Schedule to the 1999 Constitution is an inferior court is debatable.

"It seems to me that the CCT is also a Superior Court of Record with specific jurisdiction in certain matters, viz, violations of the Conduct of Conduct prescribed for public officers outlined in the self-same Fifth Schedule. In this regard, it seems to be a Superior Court of Record similar to and having coordinate jurisdiction with the High Courts (including the Federal High Court) established in Chapter VII. Accordingly, the CCT is not a mere administrative/quasi-judicial body like the NJC and other such institutions established by various schedules to the Constitution," he argued.

Okwechime wondered where a High Court would derive its power to interfere in proceedings of the CCT. He said the only conceivable provision that may considered as according such powers to high courts is Section 46 of Chapter IV on Fundamental Rights which empowers such courts to entertain matters in which the applicant is alleging past, actual or potential breaches of his/her fundamental rights.

He contended that the case against anyone in the CCT has nothing to do with fundamental rights. To him, the assertion of a fundamental right is no defence to a charge before the CCT nor can a court empowered under Section 46 use that section of the Constitution as a cover for interfering in the functions of the CCT.

According to him, the CCT is a court of coordinate jurisdiction empowered by Section 46. He said litigants, aided and abetted by some courts, hide under section 46 to frustrate legitimate trials. He contended, however, that the same method cannot be used against the CCT using the instrumentality of a High Court or Federal High Court.