Matters arising from the Supreme Court judgment in the Saraki case (2)

Continued from yesterday

THE decision was re-affirmed by the Court in Garba v. University of Maiduguri [1986] 1 NWLR (Pt 18) 550 where some students involved in acts of rioting and arson were expelled from the University. The Supreme Court, reversing the Court of Appeal and affirming the trial court, declared the expulsion null and void: first, since the expulsion was based on criminal offences alleged to have been committed by the students, only the court, but not the Visitor, Vice-Chancellor or the investigating panel set up by the University, is, by virtue of sections 6 and 33(1), (4) and (13) of the 1979 Constitution, competent to adjudicate upon the guilt or innocence of the students for the alleged criminal offences; second, whilst the University authorities may expel a student for misconduct not amounting to a criminal offence, yet as a disciplinary body, they are bound to act judicially, comply with the constitutional requirement of fair hearing and observe the other requirement of the rule of natural justice; in this case, the students were not given a fair hearing, and as the Deputy Vice-Chancellor, being a victim of the students’ rampage (his house was burnt down), his chairmanship of the investigating panel created a real likelihood of bias in that he was thereby put in a position of being both a witness and a judge all at the same time.

It is remarkable that, in Justice Onnoghen’s 37-page lead judgment, section 6 of the Constitution and the Supreme Court’s previous decisions in Sofekun v. Akinyemi (supra) and Garba v. University of Jos (supra), based on that section were not cited or considered. They were also not cited or considered in any of the other judgments delivered in the case. The judgments must be taken to have been given per incuriam, with the consequences noted later below. But the public deserves to know why. The issue of jurisdiction in the Saraki case cannot be settled aright without reference to section 6 and the decisions based on it.
WHETHER THE SUPREME COURT DECISION ON THE ISSUE OF THE JURISDICTION OF THE CCT HAS A BASIS IN A LAW VALIDLY MADE BY THE NATIONAL ASSEMBLY  

The Supreme Court decision attributing a quasi-criminal jurisdiction to the CCT was anchored not only on the Constitution itself, but also on the Code of Conduct Bureau and Tribunal Act. The question arising is whether the Act is consistent with the Constitution and valid. From what is said above, the Act is inconsistent with section 6 vesting judicial power in courts listed therein, of whom the CCT is not one. Apart from being inconsistent with section 6 vesting judicial power in the courts named therein, the Act is inconsistent with the Constitution for another reason, made so manifest by Onnoghen JSC in his lead judgment where he sets out the provisions of paragraph 15(1) of the 5th Schedule to the 1999 Constitution and section 20(1) of the Act, as follows:

Paragraph 15(1): “There shall be established a tribunal to be known as Code of Conduct Tribunal which shall consist of a Chairman and two other persons”
section 20(1): “There is hereby established a tribunal to be known as the Code of Conduct Tribunal (in this Act referred to as ‘the Tribunal’)

(2) “The Tribunal shall consist of a Chairman and two other members.”

It is obvious on the face of the two provisions that section 20 of the Act is a duplication of paragraph 15(1) of the Fifth Schedule, a fact so obvious as to make it unnecessary for counsel in their pleading or brief of argument to draw the Supreme Court’s attention to it. As earlier stated, the Supreme Court, as the court of last resort, has the duty, without special pleading or urging by counsel, to ensure that laws enacted by the legislature which it is called upon to apply in the adjudication of cases before it are consistent and not at variance with the supreme law embodied in the Constitution.

Given the obvious fact that section 20 of the Act is a duplication of paragraph 15(1) of the Fifth Schedule to the Constitution, only the legal consequences of such duplication remain to be determined. And the Supreme Court itself has determined them by its decision in Att-Gen of Abia State v. Att-Gen of the Federation (2002) 6 NWLR (Pt 763) 264 at 369, where the Court, per Kutigi JSC (later CJN), delivering the judgment of the Court, held:
“Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision then the provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act, which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provisions will be treated as unconstitutional and therefore null and void.” (emphasis supplied).

The decision is re-affirmed by the Court in INEC & Anor. v. Balarabe Musa & Ors [2003] 3 NWLR (Pt 806) 72 at page 158, where Ayoola JSC for the Court said:

“Where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject…Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtracting and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted.” (emphasis supplied)

The decision of the Supreme Court in these two cases has a good rationale to support it. An inconsistency arises from the different sources of authority for the two provisions, one source of authority, namely the Constitution, being superior to the other i.e. an ordinary law made by the legislature; for this reason, a statutory provision, deriving authority from an inferior source, simply cannot exist and operate together with the same or similar provision in the Constitution which it duplicates. It makes hardly any sense that something established or existing by the Constitution should be established yet again by an ordinary law which is inferior to the Constitution; the basis of its existence, its character and authority is certainly not changed from the Constitution to the ordinary law, nor will the repeal of the ordinary law terminate its existence and powers under the Constitution.

This rationale finds further support in the decision which, based on the superior authority of a federal law vis-à-vis a state law on a concurrent matter, holds that where the Federal Government has legislated completely and exhaustively on such matter, so as to cover the entire field of the subject-matter, then, a state law on the same matter which duplicates the federal law is void for inconsistency, since the state law, deriving its existence from an inferior authority, cannot exist together with the federal law: Att-Gen of Ogun State v. Att-Gen of the Federation (1982) NSCC 1, particularly pages 11 (per Fatayi-Williams CJN delivering the judgment of the Court) and 28 (per Idigbe JSC). But see the judgment of Eso JSC who, dissenting on this point, holds that the identical state law is only in “abeyance” or in suspension, but not void: at page 35. Even on Justice Eso’s dissenting view that the duplicating state law is merely in abeyance or suspension, the provisions of the Code of Conduct Bureau and Tribunal Act, Cap 56 LFN, that duplicate those of the Constitution, being in abeyance or suspension, cannot be used as authority for the trial by the CCT of the offences charged against the Dr. Saraki.

But there is another, perhaps stronger, reason for the unconstitutionality and nullity of an ordinary law that duplicates the provisions of the Constitution. Duplication, even when the duplicating provision in the ordinary law does not in terms purport to do so, imports by implication the supersession or supplantation of the provisions of the Constitution. To supersede or supplant means, according to the definition of the two words in Webster’s Dictionary of the English Language, “to replace in power, authority or use; to succeed to the position, function or office of.” By duplicating the provisions of the Constitution, therefore, the Act purports to make itself the governing power or authority in place of the Constitution as the governing law in use for all purposes.

To be continued

•Prof. Nwabueze is a constitutional lawyer