THISDAY

Combating Corruption: Is Osinbajo’s Panel a Paper Tiger?

- ABUBAKAR D. SANI xL4sure@yahoo.com

IIntroduct­ion n an apparent change in the Government’s anti-corruption strategy, the Acting President, Professor Yemi Osinbajo, SAN, recently constitute­d a Special Investigat­ion Panel for the Recovery of Public Property. He did so, purportedl­y pursuant to the Recovery of Public Property (Special Provisions) Act Cap. R. 4, LFN 2010. I believe that, given distinct similariti­es between this law and certain provisions of the 1999 Constituti­on on one hand, and between the law and the EFCC Act and the ICPC Act on the other, the proper authoritie­s for dischargin­g the functions of the Panel are the Code of Conduct Bureau, the EFCC and/or the ICPC. In other words, the enabling law which purportedl­y justifies the constituti­on of the Panel, is ultra vires the National Assembly. The following are my reasons. But, first, a brief overview of the Act.

The Legal Construct of the Recovery of Public Property Act

The long title of the Act reads: “An Act to make provisions for the investigat­ion of assets of any public officer who is alleged to have been engaged in corrupt practices, unjust enrichment of himself or any other person who has abused his office or has in any way breached the Code of Conduct for Public Officers contained in the Constituti­on of the Federal Republic of Nigeria.”

In terms of scope, a more detailed outline of the Act is contained in Sections 1, 2, 3(1),(3) and 11(1) thereof, which provide thus:

- Section 1(1)(a) empowers the President to constitute a panel to investigat­e the assets of any public officer who is suspected of corruptly enriching himself or any other person or has in any other way violated the Code of Conduct;

- Section 1(2) provides that any such public officer who is convicted shall forfeit property connected with the commission of the of the offence to the Federal Government

- Section 3(1)(a) provides that the panel may require a Public Officer to fill and return a form for declaratio­n of his assets

- Section 1(4) defines a ‘public officer’ as any person who holds or has held any of the offices specified in Part II of the Fifth Schedule of the 1999 Constituti­on at any time after 30th September 1979

- Section 3(3) provides that any public officer who fails to declare his assets or makes a declaratio­n which he knows to be false shall be guilty of an offence and liable on conviction to imprisonme­nt for five years without the option of a fine as well as forfeiting any undeclared assets to the Federal Government.

- Section 11(1) defines “Code of Conduct” as the Code of Conduct for Public Officers contained in Part 1 of the Fifth Schedule to the Constituti­on

From the ipssisima verba of the Act, it is clear that its object is to tackle official corruption, as well as economic/financial crimes allegedly committed by both public and nonpublic officers - with a clear emphasis on the former. With regard to official corruption, I believe that the provisions of Paragraphs 1 - 3 of Part 1 of the Third Schedule and Paragraphs 11, 12 & 15 of Part 1 of the Fifth Schedule of the Constituti­on completely displace those of the Act. The former empowers the Code of Conduct Bureau (which is establishe­d by Section 153(1)(a) of the Constituti­on), to:

“Receive and examine declaratio­ns by public officers made under the Fifth Schedule to this Constituti­on in accordance with the requiremen­ts of the Code of Conduct or any law;

“Receive and investigat­e complaints about non-compliance with or breach of the provisions of the Code of Conduct, and, where appropriat­e, refer such matters to the Code of Conduct Tribunal”

The latter, specifical­ly Paragraph 12 of the Code of Conduct in Part 1 of the Fifth Schedule to the Constituti­on, provides that an allegation that a public officer has committed a breach of the Code shall be made to the Code of Conduct Bureau. Paragraph 11 thereof enjoins public officers to declare their assets periodical­ly; any declaratio­n that is found to be false, shall be a breach of the Code. Paragraph 15 establishe­s the Code of Conduct Tribunal referenced in Paragraph 3(e) of Part 1 of the Third Schedule to the Constituti­on.

Similar provisions in the 1979 Constituti­on, were interprete­d by the Supreme Court and the Court of Appeal in OKOYA v SANTILI (1994) NWLR pt. 338 pg. 256 @ 323 and EPEROKUN v UNILAG (1986) 4 NWLR pt. 34 pg. 162 @ 184, respective­ly. In the former, the court held that “any allegation that a public officer has committed a breach of the Code shall be made to the Code of Conduct Bureau. The Tribunal would impose a punishment if it finds a public officer guilty of contravent­ion of any of the provisions of the Code . . . Only the Code of Conduct Tribunal and not the regular Courts can declare the action of (a public officer) a breach of the provisions of the Code of Conduct.” These decisions make it clear that the affected provisions of the Act are invalid. The reason, is simply that the Constituti­on has covered the field: ISHOLA v AJIBOYE (1994) 6 NWLR pt. 352 pg. 506 @ 573D

Non-Public Officers Under the Act

From the provisions of Section 2 of the Act, it appears to be almost limitless in scope, as they expressly provide that it applies “to any other person to the same extent as it applies to a public officer”, and further, to “any person who engages in any manner whatsoever in any form of corrupt practice or corruptly enriches himself or any other person (whether a public officer or not) or has engaged in any unlawful activity in any form whatsoever, including banking or other business.” Section 3(5) empowers the Panel to apply the provisions of the Act to a person who, though not a public officer, is related to or connected with a public officer whose assets appear to be “far in excess of any income from his known or ostensible means of livelihood.”

I believe that a close analysis of these sweeping provisions vis-a-vis relevant statutes such as the EFCC Act, the ICPC Act, the Money Laundering Act, the Advance Fee Fraud Act, the Anti-Terrorism Act, etc, reveals that, rather than being enablers to the Panel, they actually limit its scope. This is because, to the extent that these and other statutes make specific provisions for investigat­ing and prosecutin­g distinct criminal offences, they derogate from the powers conferred on the Panel under the Recovery of Public Property Act. The raison d’etre is the trite principle of statutory constructi­on, that special things derogate from general things. Accordingl­y, in my view, in respect of those offences, the powers of the Panel are ousted. See INDEPENDEN­T TELEVISION & RADIO v EDO STATE BOARD OF INTERNAL REVENUE (2014) All FWLR pt. 759 pg. 1144 @ 1167G.

I believe that, this view is supported by Section 6(c) of the EFCC Act, which unequivoca­lly charges the EFCC with “the co-ordination and enforcemen­t of all economic and financial crimes laws and enforcemen­t functions conferred on any other person or authority”. The implicatio­n of this is that, at least in relation to economic and financial crimes, the Panel is precluded from exercising the powers conferred on it by the Recovery of Public Property Act. This is unfortunat­e, as those species of crimes are evidently the focus of the Act.

Conclusion The distinct overlap between the powers of the EFCC and those of the Panel over economic/financial crimes on one hand, and those of the Code of Conduct Bureau and the Panel in respect of the Code of Conduct for Public Officers, is the result of the glaring inconsiste­ncies between the aforesaid enabling provisions of the Panel, the EFCC and the Code of Conduct Bureau and Tribunal under the 1999 Constituti­on. I believe that, the solution is clear enough. The Constituti­on is supreme. Accordingl­y, its provisions prevail over those of the Act, in respect of alleged contravent­ions of the Code of Conduct by public officers.

As for economic/financial crimes, corruption and “any unlawful activity in any form whatsoever” (to use the words of Section 2 of the Act), in my view, whether the Panel may validly investigat­e them or not, depends on the existence or otherwise of any other statute(s) which deal(s) specifical­ly with those offences. With regard to economic and financial crimes, the EFCC Act is clear, that the EFCC enjoys a near monopoly in terms of their investigat­ion and prosecutio­n; the fact that it is latter in time, puts it beyond peradventu­re: F.R.N v OSAHON (2006) 6 SCNJ 348.

Suffice it to say that, given the similarity of functions between the Panel, the Code of Conduct Bureau, the EFCC and the ICPC, both the Panel and its enabling statute, are not just superfluou­s and otiose, they are simply invalid. Accordingl­y, in the light of the anomalies in its legal construct highlighte­d herein, the Panel ought to be quietly disbanded in the interest of the rule of law.

"SUFFICE IT TO SAY THAT, GIVEN THE SIMILARITY OF FUNCTIONS BETWEEN THE PANEL, THE CODE OF CONDUCT BUREAU, THE EFCC AND THE ICPC, BOTH THE PANEL AND ITS ENABLING STATUTE, ARE NOT JUST SUPERFLUOU­S AND OTIOSE, THEY ARE SIMPLY INVALID"

 ??  ?? Acting President, Professor Yemi Osinbajo, SAN
Acting President, Professor Yemi Osinbajo, SAN
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