Established in 1989, the Code of Conduct Tribunal is a strikingly unique adjudicatory body created to strengthen integrity in public service by enforcing the Code of Conduct for Public Officers. While the tribunal shares overlapping jurisdiction with ordinary courts in relation to some criminal offences, it has exclusive jurisdiction over particular offences listed in the Nigerian Code of Conduct Bureau and Tribunal Act. The tribunal receives complaints from the Code of Conduct Bureau over breaches of the act. And only the Bureau can refer complaints of non-compliance with, or breach of the act to the tribunal; no other body can.
Alongside this, some of the tribunal’s powers, including the range of punishments it can award offenders upon conviction are also unique and exclusive to it. The tribunal can order convicted persons to vacate office, or disqualify them from holding public offices for a period of up to 10 years or order the forfeiture of ill-gotten property. See Ogbuagu v Ogbuagu (1981) 2 NCLR 680. These features make the tribunal a specially designed vehicle for fighting public sector corruption and abuse of office in Nigeria.
The tragedy, though, is that in spite of its extraordinary powers and strategic importance to the fight against corruption, the tribunal has largely been a light hidden under the bushel, and more than that, a toothless bulldog! Since its establishment in 1989, the tribunal has taken up quite a few cases, but the overall impact of its work has been nickels and dimes, grudgingly below par, which is disappointing given the scale of the afflictions brought about by corruption in Nigeria.
The tribunal should, and can do more. However, it can only make the effort if it is “unshackled” from the Code of Conduct Bureau and given the latitude to stand freely and independently and be a more meaningful anti-corruption asset. Being tied to the apron strings of the Code of Conduct Bureau limits the tribunal only to cases referred to it from the bureau. This co-relative dependency imposes a terrible limitation on what the tribunal can potentially offer Nigeria’s efforts to curtail abuse of public office; it can even facilitate the politicisation of the tribunal’s functions, where, for example, the Bureau has been successfully infiltrated by politically motivated interests.
There is some insistence, even now, that certain high profile cases referred to the tribunal, in the past and present, were, or are politically motivated. This needs to change. The tribunal must not remain the theatre, or stamping ground for proxy political conflicts. If it continues to be, whenever cases involving significant political actors come before it, there will always be a perception that it is politics, and not rectitude that is the driving force, and this perception will overshadow and hurt the important role of this court. The tribunal must be reformed, therefore, to free up access to it by others, such as the other anti-corruption agencies, or even, other civic actors.
Civic actors? Yes! The tribunal is a special place. It has jurisdiction to determine, among other things, whether public officers have abused their power; it has power to ban them for up to 10 years where they have. Abuse of power can take a variety of forms and would ordinarily include the gross misuse of power. It could include, for instance, the failure to comply with court judgments; it could also include a claim, where proved, that a military officer directed armed troops to summarily kill protesters blocking a highway to enable a general’s convoy pass through.
Arguably! The tribunal could possibly offer a platform where civic actors can canvass their convictions that those who exercise power have misused it to such an extent that they are not fit to continue in public office. If this happens, if this opportunity is granted, it should be a glorious dawn for the rule of law and good governance in Nigeria.
This will also be consistent with the trend we are witnessing in other climes. In Ghana for instance, its constitution provides, for example, that any person may apply to the Supreme Court for a declaration that anything done by any person is a breach of the constitution, and the court may give any orders appropriate to its declaration on the matter. It is a “high crime” to fail to obey or carry into effect the order of the court. This crime can fetch up to 10 years imprisonment, and a person convicted may further face up to 10 years ban from holding a public or elective office. The tribunal could play a similar role in Nigeria.
Another reason the tribunal is malfunctioning is its leadership and the way the authority of that leadership is appropriated. Danladi Umar’s tenure as chairman of the tribunal has been characterised by fractious antagonisms with tribunal staff and board members, a morale-depleting politicisation of the tribunal’s work environment, brutal victimisations of “disloyal” staff and widespread allegations of corruption and financial malpractices.
This is not the kind of atmosphere that achieves much result.
It is therefore, no longer tenable for Danladi Umar to continue in office as the chairman of the tribunal given all this, in addition to the harm, public ridicule and embarrassment he has brought to the image of the tribunal and the Judiciary in Nigeria. The Code of Conduct Tribunal needs a new leadership that will restore public trust in it, provide purposeful leadership for the staff and put its powers to effective use.
The tribunal’s legal framework is also faulty; for a start, operating under the executive arm of government is quite a setback. As a judicial body with adjudicative functions, the Tribunal appropriately “belongs” to the judicial branch of government. That said, it should be made accountable to judicial oversight bodies such as the National Judicial Council and not be under the Presidency. This will offer the tribunal greater independence and ensure more effective oversight of the performance of its members and staff, enhance its performance standards and make the tribunal a more accountable anti-corruption institution.
The current framework also suffers from its failure to safeguard against arbitrary control of the tribunal by the chairman. There needs to be clearer demarcation and allocation of powers among members of the board of the tribunal (i.e. the chairman and two members) and better clarity of decision-making powers amongst them. The chairman should not enjoy or exercise any “casting vote” privileges as is the practice now.
The tribunal also needs powers to make its rules of practice and procedure and amend same whenever is necessary to meet the exigencies of its mandate without needing to have an amendment of the parent legislation anytime this need arises.
The powers of the board of the tribunal as well as those of heads of unit heads within the tribunal should be strengthened to give them more independence from the tribunal chairman. Also, the powers to transfer staff of the tribunal, interdict them, audit their performance and make promotional decisions should be clearly spelt-out and divided between the board and different unit heads.
President Buhari’s pledge to fight corruption needs a full-court press to achieve desired results as well as the contribution of every facet of our anti-corruption infrastructure. The public excitement generated following the referral of some high profile cases to the tribunal of late has put the spotlight on the flaws of an agency that has remained under the radar for so long. This is an opportune moment for the Buhari administration to take far-reaching action to re-model the tribunal, transform it fundamentally and rebuild public trust in its ability to fight corruption. This is the thrust of Access to Justice’ new publication, ‘The Bump on a Log: Why the Code of Conduct Tribunal Malfunctions and How it can be Reformed’.
Joseph Otteh and Lazarus Chinwokwu are staff of Access to Justice.
Access to Justice is a non-profit that defends rights of equal and non-discriminatory access to impartial institutions of justice.
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