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