When is a Public Officer Not a ‘Public Officer’?
"I BELIEVE THAT THE LEARNED TRIAL JUDGE, WITH RESPECT, ERRED TO HAVE HELD THAT THE FORMER GOVERNOR WAS NOT A PUBLIC OFFICER. I SUBMIT THAT, THERE IS ONLY ONE CATEGORY OF PUBLIC OFFICERS, AND THAT IS AS PROVIDED IN PARTS I & II OF THE FIFTH SCHEDULE TO THE CONSTITUTION..... I POSIT THAT IN FINDING THAT SENATOR SANI, AS A GOVERNOR, WAS NOT A PUBLIC OFFICER, THE COURT UNWITTINGLY RECOGNISED TWO CATEGORIES OF PUBLIC OFFICERS"
Introduction
This poser is prompted by the recent decision of the Zamfara State High Court, presided over by Hon. Justice Bello Mohammed Tukur, which discharged a former Governor of the State, Senator Ahmed Sani, Yeriman Bakura, of the offence of diversion of public funds, inter alia, on the ground that he was not a public officer at the time he allegedly committed the offence, even though he was the State Governor at the time. It appears that the court based its decision on the meaning of “public officer” under the Interpretation Act, where it is defined as a member of the public service of the Federation or a State under the Constitution.
However, Governors are not members of the public services of States under the Constitution, hence they are not ‘public officers’ – at least as far as that definition goes. This will come as something of a surprise to many observers, given the popular belief that all public officials, whether elected, appointed or career civil servants, are public officers. To the extent that the verdict contradicts this notion, the devil, clearly must be in the detail. So, let’s find out. . .
Background The ever-controversial former Governor, was docked, along with three others for, inter alia, allegedly diverting the sum of N464,820,189 out of a N1 billion loan earmarked for the repair of a dam in Gusau, the State capital. This was said to be contrary to Section 22(5) of the Corrupt Practices and Other Related Offences Act 2000, which provides thus:
“Any public officer who transfers or spends any sum allocated for a particular project or service shall be guilty of an offence under this Act”.
In throwing out the charges, the Court held that since Senator Sani was not a public officer in the eyes of the law, “(he) could not be said or found to have used the public office status that is not available to him to confer any advantage upon another”.
Who, then, is a Public Officer? This is the question unwittingly thrown up by the decision. Section 18(1) of the Interpretation Act defines “a public officer” as “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or of the public service of a State”. On the other hand, Section 318(1) of the Constitution defines “public service of the Federation (or of a State)” as “the service of the Federation (or of a State) in any capacity in respect of the Government of the Federation (or State)”. It then outlines about eight institutions or statutory corporations and government agencies, employment in which qualifies as ‘public service of the Federation or of a State as the case may be.
Curiously, none of those capacities includes a State Governor, or even the President, his Vice, the heads and members of legislative houses either at the Federal or State level, or indeed, the heads of the Judiciary (CJN/PCA, CJs, etc) and any judicial officer whatsoever. This situation is clearly anomalous, given that the holders of all these offices - from the President down to the most lowly clerk, messenger or security guard in a local government - is a public officer for the purposes of the Code of Conduct for Public Officers in Parts I & II of the Fifth Schedule to the Constitution.
Deconstructing the Decision and Resolving the Anomaly
There is no question that the decision effectively de-fanged the provisions of the ICPC Act and other statutes, such as the Penal Code and Criminal Code, in so far as they apply to ex-Presidents/ex-Vicepresidents, ex-Governors, their Deputies and others who, though are regarded as public officers under the Code of Con- duct, however lack that character under the Interpretation Act, for the mere fact that they are not members of the public service by the definition of that phrase in the Act.
I believe that the court’s construction of the phrase, is contrary to public policy. It is settled that where a statutory provision is capable of two interpretations, the alternative that is consistent with the smooth working of the system which the statute seeks to regulate, is preferable to that which will cause confusion, uncertainty or friction in the system: ut res magis valeat quam pereat. See YABUGBE v COP (1992) 23 NSCC pt. 1 pg. 651 @ 671 It is also the law that the provisions of the Constitution should be read and interpreted as a whole, in that, related Sections (in this case, the definitions of “public service” in Section 318(1) and “public officer” in the Fifth Schedule thereto) should be construed together: TUKUR v GOVERNMENT OF GONGOLA STATE (1989) 20 NSCC pt. III Pg. 225 @ 273.
Furthermore, it has never been the case in our law, that the provisions of an ordinary statute (in this case, the Interpretation Act), would render nugatory a relevant provision of the Constitution: A.C.B v LOSADA (1995) 7 NWLR pt. 405 Pg. 26 @ 52. I submit that the definition of “public officer” adopted by the court, is contrary to one of the “twelve commandments” of constitutional interpretation enunciated in ATTORNEY-GENERAL OF BENDEL STATE v ATTORNEY-GENERAL OF THE FEDERATION (1982) 3 NCLR Pg. 1 @ 132, which is that “the principles upon which the Constitution was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its operation”. I believe that those principles (and the purposes of the Constitution) can be gleaned from its Preamble, and they include “the promotion of good government and welfare of all persons (as well as) freedom, equality and justice”.
I believe that the decision raises a number of issues. Is the dichotomy between the definition of public officer under the Code of Conduct in the Constitution and the Interpretation Act valid? Is it right that the clearly salutary provisions of the Constitution in respect of the Code of Conduct for public officers, should be subverted (or at least abridged) by being restricted to only “officers in the public service” as so narrowly defined in the Interpretation Act? To the extent that those provisions diverge significantly from the manifest intention of the makers of the Constitution, which is to ensure probity in the conduct of public life, should they be allowed to stand? I submit that, the answers to all these questions is a resounding ‘No’.
To start with, the Interpretation Act itself makes it plain (in Section 1 thereof) that it is applicable “except in so far as the contrary intention appears” either in the Act itself or “the enactment in question”. There is no doubt that this includes the Constitution. However, as if to make assurance doubly sure, Section 37(2) of the Act categorically provides that “nothing in (the) Act shall be construed as purporting to prejudice the provisions of the Constitution”.
I believe that the learned trial Judge, with respect, erred to have held that the former Governor was not a public officer. I submit that there is only one category of public officers, and that is as provided in Parts I & II of the Fifth Schedule to the Constitution. This is clear from the fact that all members of the public services of both the Federation and the States as contained in Section 318(1) of the Constitution, are also named as public officers for the purposes of the Code of Conduct in the Fifth Schedule to the Constitution.
I posit that in finding that Senator Sani, as a Governor, was not a public officer, the court unwittingly recognised two categories of public officers. To the extent that the second category is based on a flawed construction of the Interpretation Act vis-à-vis the Constitution (which in effect, placed it on a higher pedestal than the Constitution), I submit that it negates the Code of Conduct for public officers under the Constitution, as it pertains to ex-Governors like Senator Yerima, et al, who, under the Interpretation Act, are not public officers - even though under the Code of Conduct as aforesaid, they are. This obvious anomaly can, however, be reconciled when it is recalled that, in ATTORNEY- GENERAL OF THE BENDEL STATE v ATTORNEY-GENERAL OF THE FEDERATION, supra, the Apex Court held that “a constitutional provision should not be construed so as to defeat its evident purpose”.
Conclusion The import of the of the decision should not be lost, coming on the heels of the recent judgement of the Court of Appeal which effectively insulated serving judicial officers from being investigated or prosecuted by law enforcement agencies like the Corrupt Practices and Other Related Offences Commission, as this case. Unfortunately, the impression created by both decisions is that the war against corruption is on something of a back-foot. Suffice it to say that, given the public disquiet that has trailed their pronouncement, both decisions have clearly raised more questions than answers.