Sunday, April 17, 2016

Falana to Speaker Dograra: Don’t support Senate’s ploy to amend anti-corruption law

Femi Falana

A senior lawyer, Femi Falana, has called on the Speaker of the House of Representatives, Yakubu Dogara, not to support the move to amend the Code of Conduct Bureau and Code of Conduct Tribunal Act, saying passing such a legislation will be illegal and unconstitutional.

In a letter dated April 15 and addressed to Mr. Dogara, Mr. Falana said the fact that the National Assembly is commencing deliberation on amending the CCB and CCT Act at a time the Senate President, Bukola Saraki, is being prosecuted under the same statute is improper.

“In view of the ongoing trial of the Senate President, Dr. Bukola Saraki before the Code of Conduct Tribunal over the alleged failure to declare his assets the hasty move to amend the Act is insensitive, suspicious, self serving and opportunistic. It is also illegal and unconstitutional in several respects,” Mr. Falana wrote.

The Senior Advocate of Nigeria also argued that Mr. Saraki’s decision to remove himself from presiding over the Senate whenever the body wants to deliberate the amendment is not a sufficient excuse to make the process legal.

“Secondly, notwithstanding that the Senate President has decided not to preside over the plenary in the Senate whenever the bill is being debated the whole exercise is a clear violation of paragraph 1 of the Code of Conduct for Public Officers enshrined in Part 1 of the Fifth Schedule to the Constitution which stipulates that “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities,” he said.

Mr. Falana said the amendment, if passed into law, will be illegal because its objectives had already been addressed in the Constitution.

“Thirdly, section 3 of Act which the National Assembly seeks to amend has become spent. Senator Nwaoboshi was reported to have said that he was proposing an amendment to section 3 of the Act to provide ‘for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.’ With respect, section 3 of the Act is in pari materia with Paragraph 3(e) of Part 1 of the Third Schedule to the Constitution. To that extent, section 3 of the Act is inoperative and invalid in every material particular. In Attorney-General of Abia v Attorney-General of the Federation (2001) 17 WRN 1 the Supreme 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 new 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 provision or provisions will be treated as unconstitutional and therefore null and void.

“In the light of the authoritative pronouncement of the Supreme Court on lack of legislative powers on the part of the National Assembly to enact laws which have similar provisions to those of the Constitution section 3 of the Act has become a duplication of the relevant constitutional provision. Consequently, its proposed amendment is illegal and unconstitutional. In other words, without amending the relevant provisions of the Constitution the proposed amendment of the Act is an exercise in futility. As the proposed amendment cannot alter, enlarge or curtail the relevant provisions of the Constitution the Senate ought not to continue to waste precious time and resources on the illegal exercise.

“Since the Constitution has prohibited the enactment of ex post facto laws in circumstances of this nature the National Assembly ought to know that the ongoing moves to amend the Act cannot have any effect on the celebrated trial of the Senate President. Having solemnly sworn to strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution the members of the National Assembly should stop subverting the obligation of the Federal Government to “abolish all corrupt practices and abuse of power,” he said.

Mr. Falana, therefore, prevailed on Mr. Dogara to desist from giving the bill any backing, adding that doing so will be an exercise in futility. 

“In view of the foregoing, we are compelled to urge the House of Representatives ably led by your good self not to lend its weight to the illegal amendment of the Act. You may wish to remind your colleagues in the House that when the Corrupt Practices and other Related Offences Act 2000 was amended in 2003 on account of the investigation of allegations of corrupt practices involving the leadership of the Senate the Federal High Court set aside the amendment as it violated the Constitution. As the same fate certainly awaits the Bill to amend the Code of Conduct Bureau and Code of Conduct Tribunal Act it is hoped that the House will persuade the Senate to terminate further debates on it.”

The National Assembly has been criticised since Mr. Nwaoboshi (PDP-Delta State) moved a motion last week to amend the CCT and CCB Act which guides conduct of public office holders.

Many Nigerians argued that the lawmakers are trying to change the law to save one of their own, Mr. Saraki, who has been standing trial for alleged false asset declaration since September 2015.

“If you don’t assist your neighbour when his house is burning, it will extend to yours,” PREMIUM TIMES reported Senator Biodun Olujimi (PDP-Ekiti State) as saying, during the second reading of the bill on Thursday.

Source: Premium Times

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