Code of conduct tribunal proceedings and related constitutional issues

Servants of the public are themselves masters of themselves. The striking paradox of consequence of corruption has placed a high degree of proof on public officers who retain the level of fairness that match with the degree of the onus. The issue of corruption is not restricted to the dark hallways of government offices but officers who are under duty to enhance the society have rendered in tatters the entire sacrosanct mainstay of common good. This paper attempts to explore the Code of Conduct Bureau and Tribunal Act 2004. For the writer, the procedural form and provisions of the Act has inalienably invited constitutional problems. The case of Nwankwo v Nwankwo that has set a limit of locus in action under the Act was reviewed. The paper identifies widespread discrimination in the enforcement of code of conduct for public officers in Nigeria. As part of recommendations the paper advises that the basic text of strong discipline in public service is the extent to which officials are being trained and tried for uncomplimentary relationship between the code and the judiciary. So the restriction of access to the tribunal at the detriment of individual with a cognizable interest is fatal to a regime committed to instilling discipline in public service.


INTRODUCTION
Failure to declare assets in Nigeria is a rule instead of the exception.The agency powered 2 to collate assets declaration form is the Code of Conduct Bureau.The Code of Conduct Bureau (hereinafter referred to as the "bureau") is a sister agency to the Code of Conduct Tribunal (hereinafter referred to as the "tribunal").The Code of Conduct Bureau and Tribunal Act (hereinafter referred to as the "Act") carries the aura to desit the nauseating odor of corruption in public service in Nigeria and replace same with a system of accountability and responsibility cutting across institutions and arms of government.The monitoring and enforcement of assets declaration by public officers being the primary responsibility of the agency is a constitutional requirement for public officers including members of the executive, judicial and legislative arm of government. 3The declaration of assets by public officers is the fulcrum of compliance to the code of conduct of public officers.A basic text of strong discipline E-mail: kpresident@yahoo.comTel: 234 80 3268 3434 Author(s) agree that this article remain permanently open access under the terms of the Creative Commons Attribution License 4.0 International License in public service is the extent to which officials are being trained and tamed for complimentary relationship between the rules of the code and service.
Trial procedure at the tribunal This is the process by which public officer 4 accused of breach of the code is arraigned and tried. 5Before trial commences, the bureau initiates investigation on its own or after receipt of complaint with necessary investigation, 6 bundle 7 the public officer involved to the tribunal.The pre trial application of the bureau to the tribunal is ex parte in nature and the tribunal is powered by the Act to issue warrant of arrest against the accused based on the face of the allegations filed by the prosecutor. 8he compelling appearance 9 of the accused leaves much to be desired, considering the responsibility of public officers in the development of any nation.The common object of the summary application is to bring the suspect before a Commission of Enquiry (Ikone v Commissioner of Police /1986) and not for the purpose of determining the guilt of the accused.Every citizen is entitled to right of personal liberty 10 under the constitution and no person shall be lawfully denied of this right by means of arrest or detention.An efficient and effective criminal justice administration founded upon the basic principle of law and justice and propelled by a vibrant and seamless judicial process, is without doubt, the sine qua non for egalitarian society.This is a society where respect for rule of law, due process, human rights and democratic ideals holds sway, as envisaged under the Nigerian Constitution (Frank, 2009).
Criminal summons is an alternative to warrant of arrest.It is usually issued in respect of misdemeanour.It may also be issued if the person whose attendance is required is not likely to refuse to attend the court (Bryan; Black's Law Dictionary, 6 th Edition).It is not every case or complaint against a public that deserves the deployment of warrant of arrest.It is my submission that the use of warrant against a public officer is oppressive seeing that the benefit that may flow from enforcement or the penalties that are likely to be ordered may not be justifies by the costs involved in securing attendance.Breach of the code is not a capital offence and any law that creates warrant of arrest for non capital offences goes with bail endorsement. 11An arrest order without a provision for bail bond is an infringement on the constitutional rights of public officers. 12Even though the Act presumes that the accused is guilty of corruption on any allegation of contravention of the code, I submit that it is not at the pre trial stage.
Whether a reasonable man acting without passion or prejudice would fairly have suspected the arrestee of having committed an offence is determined by the application supported with summary of evidence and affidavit made by the prosecutor and also the explanation of the suspect.Where the suspect reasonably explains the situation and contradicts the application of the prosecution, at least at the material time, any detention in that circumstance has no foundation on reasonable suspicion and it may be unlawful.Agree that the proof of reasonable suspicion is on probability but the onus rest comfortably of the prosecution.An examination of the powers, provisions and trial procedural in the Act show the trappings of a criminal trial. 13The essence of developing a gauge for reasonable suspicion and arrest is to prevent abuse of powers and infringement of rights and undue harassment, victimization and sustenance of judicial esteem.In the tribunal proceedings, the witness seems to be of more value than the accused person.In Ikonne v COP 14 the Supreme Court held that the conduct of the Judge in issuing the warrant of arrest upon what was obviously a fictitious reason, had the undesirable effect of denigrating the judiciary in the eyes of the public and of eroding the confidence of people in judicial process and the rule of law.The deterrence value becomes uncertain particularly if the persons most likely to be prosecuted are without resources or standing.The tribunal must allow suspects to access their counsel at the point of arraignment. 15This right is the gate way to the realistic exercise of all other rights of citizen. 16It must also be noted that the suspension of a public officer by the bureau pending the decision of the tribunal will not amount to breach of right to fair hearing, (Esiaga v UNICAL ( 2004)) 17 so long as the suspension was running before the charge was made in the tribunal.

Frame of fair hearing at the code of conduct tribunal
Fair hearing is not only a common law requirement but also inherent in rule of law and attracts the aura that inaugurates natural justice characteristic of a judicial process.It is a statutory and constitutional right. 18The foretaste of this rule in Nigeria was made manifest in Garba v UNIMAID where the Supreme Court held that the rules of natural Justice must be observed in any adjudication process by any court or tribunal established by law. 19Fair hearing under the Act means that the accused shall not only have the opportunity to present evidence in his favor, but shall be expose to the evidence of the prosecution challenging his own, so that at the conclusion of the hearing, the tribunal may be in a position to know all of the evidence on which the matter is to be decided 20 The absence of judicial division of the tribunal accounts for the cross-country and laborious trial for the accused which in turn affects substantially the rights of the accused under the law.A public officer who breaches the code in state other than its present posting cannot all be tried in Abuja.All actions against a public officer and suits for penalty or forfeiture is commenced and tried in the Judicial Division of the Court in which the cause of action arose. 21The essence of trial within a jurisdiction where action arose culminates in a stress free environment.I submit that it is not only a constitutional requirement but a subtle condition for fairness.In the case of R v Benbrika and Ors 22 the Supreme Court of Victoria held that the circumstance in which the defendants were being transported meant that they were subjected to undue stress such that the conditions rendered the trial unfair.
All public officers are mandated under the law and the Constitution 23 to declare all his properties, assets and liabilities and those of his spouse or unmarried children under the age of 21 years.Where a tribunal finds a public officer guilty of contravention of any of the provisions of the code, the tribunal shall impose upon that officer any of the punishment specified in par 18(2) of the 5 th Schedule 1999 Constitution which include: -(a) Vacation of office or seat in any legislative house as the case may be; (b) Disqualification from membership of any legislative house, as the case may be, holding of any public office for a period not exceeding 10 years and (c) Seizure and forfeiture to the state of any property acquired in abuse or corruption of office. 24ill it be fair for the tribunal to order for forfeiture of money traceable to an account bearing a separate name from that of a public officer without hearing from the bearer of the account?It is my submission that children's gift cannot be said to be assets of the parents, save tied to or linked with assets declaration form or proceeds of office of the accused.It will also be unfair and unconstitutional for a tribunal to make an order against the assets of a spouse or child not joined as a party in the suit.In similar vein, the thought that assets of unmarried children or children below the age of 21 years 25 are that of the parents militates against the right of children to own immovable property in the Constitution. 26It is no doubt that where a public officer has corruptly enriched himself the appropriate authority 27 would direct under the law that the funds so misappropriated be refunded by such an officer (Tyonzughul v A.G. Benue State (2005).Various laws 28 empowers agencies in Nigeria to invite public officers to furnish them a statement on oath on how they own, posses any interest in property which is excessive having regards to his present, past emoluments and all other relevant circumstances. 29There is a presumption of corrupt enrichment on all public officers. 30he court or relevant tribunal has the power to order for the forfeiture of property or proceeds of crime of all public officers who failed to rebut the presumption of corrupt enrichment, breach of the code and abuse of office.A significant increase in the assets of a government official that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions is nothing less than corrupt enrichment.The onus to prove that the property own by family member of a public officer is corruptly acquired is on the prosecution, this is so because the right of an individual to own property is President 19 fundamental right.The burden of proving of infringement of fundamental rights is on the infringing authority and in this case the prosecution (SSS V Agbakoba (1999).The tribunal is under the constitution mandate to investigate assets declaration made by public officers, investigate the assets acquired in the name of family members and sue them appropriately 31 and respectively 32 .Specially, where the forfeited property constitutes evidence of the subject matter of the offence, there will be forfeiture of the proceeds of crimes to the state under the Act and Criminal Code. 33This is in addition to additional penalty that may be imposed. 34For an order of interim forfeiture to be granted by the court, the onus to prove the link between the alleged offence and the property is on the prosecutor. 35The variations of conviction based forfeiture in Nigeria are forfeiture of proceeds of assets acquired through proceeds derived from the offence of conviction.
The second is where statute imposes pecuniary penalty or authorizes the forfeiture of assets equivalent to the penalty from the offence.And lastly, subject to forfeiture all traceable assets of the convicted person (Adedeji Adekunle 2011).Under our law, convict of financial crime may forfeit to the Federal Government properties obtained directly or indirectly as a result of such offence not disclosed on assets declaration form. 36The constitutionality of forfeiture was put to test in Nwaigwe v FRN 37 The court held that forfeiture of property by accused is constitutional since the court can revoke the order anytime.The primary essence of forfeiture order is to stop the accused from transferring or disposing off the proceeds of crime (Abacha vs FRN (2006). 38The guiding principle is that the action and parties must be before the appropriate court or tribunal.

Burden of proof placed on the accused: constitutionality or otherwise
Abuse of power has assumed both national and international priority (Niki Tobi 2008).In an ideal society the profligates that we have in the wheel of governance in the name of public officers cannot be there.It is no news that the pulling force of citizens to appointive or elective offices is spur by an endless and mindless cash kitting.
According to Oyebode 39 all most everybody in Nigeria is corrupt; they all leave above their income.The struggle for the control of state power is largely to enhance the predatory access to resource windfall (Olowu, Kayode 1995).Hardly a day passes without some new and shocking evidence emerging that corruption is alive and well in public service.Public officers are proud to hear of their complicity and the resultant hatred the people which they wear like a badge.So the Act in his magnanimity presumes all public officers to be the looters of the national treasury unless the contrary is proved. 40The onus of proof that the accused is guilty still lies on the bureau at the time of making the complaint to the tribunal.
A petition on oath that is idle and unproved requires timorous denial for same to establish a case of damages against the prosecuting agency.Though those who disregard the oath of office have the onus of prove to be fit to continue to discharge the trust reposed on them, yet the presumption of innocence of an accused is sacrosanct in any offence under Nigeria laws.The Court of Appeal in Wabara and 2 Ors v FRN 41 while commenting on section 53 (1) of the ICPC Act 2000 held that the presumption of corruption is unconstitutional being odd with the requirement of section 36 (5) of the constitution.While I agree that accused persons as long as he remains guilty needs equal protection as other victims of crime or other accuser of its status, It is my humble submission that civil proof of probability by the accused to rebut allegation of abuse of office or failure to declare assets is allowed to prove that the property or assets acquired was not in contravention of the code. 42here a public officer asserts that he complied substantially with the code of conduct, he has the evidential burden of proving same.The tribunal takes judicial notice 43 of the effortless confetti of guilt worn around by public officers.A public officer charged with offences relating to failure to declare his assets cannot be prevented from disputing the incorrectness by offering evidence like assets declaration form and or pay slips.Arguably where failure to declare assets is used in the counts, the mens rea of the offences charged is embedded and disclosed therein. 44It will whet the edge of venality if the guilt of an accused over failure to declare assets is on the prosecution.
This burden of proof enunciated by the Act may be discharged as soon as the accused introduces acceptable evidence showing balance of assets and income or reasonable compliance with the code of the conduct.The burden of proof shifted on the accused does not violate existing law in our practice and the law of evidence, but proof as to any particular facts lies on that person who wishes the court to believe in its existence. 45imilarly, even though an accused is presumed corrupt until the contrary is proved, breach of the code cannot be established by looking at only the charges or documentary exhibits tendered. 46In the case of Ereku v Queen, 47 the court in one of the first corruption charges in Nigeria held that failure to call or explain the absence of a witness one who had been requested to do the bribery, receipt of which formed the subject matter of the count of corruption was fatal to the count.It is needful that petitioner or investigative officer in the bureau be invited to the tribunal to give evidence failure of which may render the allegation fatal and unproved.The accused with the leave of court will be allowed to adduce further evidence to rebut the evidence of the prosecution on a new issue arisen even after they both closed their case. 48here are two distinct and frequently confused meaning of burden of proof.There is proof in the sense of introducing evidence and proof as a matter of law and pleadings (Buhari v INEC (2008).As regards the burden of proof in this Act, for the accused to discharge the onus, recourse will be made to the substance of the offence.Where the accused is charged of illegal accumulation, the item or facts constituting the ingredient of the offence are peculiarly within the knowledge of the prosecution and the burden of proving same lies on him 49 independent of the merit of the exercise.It is only at the discharge of this onus by the accused that the court would come to the conclusion that the alleged breach was not done with the aim of earning or accumulating wealth illegally or that the assets profile of a public office is not influenced by ill-wealth (Swem vs Dzungwe (1960).This position is neither trite nor arid but a basis of contemporary judicial precedence.With an élan of informed jurist in an arcane world of practice and procedure, Niki Tobi JSC in a paper titled 'the rule of law and anti-corruption crusade in Nigeria (9 th Justice Idigbe Memorial Lecture held at Akin Deko Hall, University of Benin, on 6 th of August 2008) drove a comprehensive nail on the intractable ghost of onus of proof in anticorruption cases.He has this to say; The burden of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt.The same cannot be said of section 3(2)(3)of the Money Laundering (Prohibition) Act 2004 which provide that individual and body corporate shall be required to provide proof of identity in money laundering related cases.The above principle is consistent with section 139 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who whishes the court to believe in its existent.
It is my sube4rd4344mission that the constitutionality of burden of proof on the accused is a mixed canvass of virtue and villain.Section 15 (3) of the Act save in limited exceptional cases is not inconsistent with the constitutional presumption of innocence, 50 since the discharge of the onus does not depend on proof beyond reasonable doubt or preponderance of evidence but on moral certainty or balance. 51A conviction of honour and good sense is sufficient, the accused need not establish a prima facie case of compliance to the code, evidence of reasonable or prospective compliance with the code should not be disregarded by the tribunal unless there are stronger proofs of evidence against it.
Another justification for the onus of proof on the accused denotes that the tribunal cannot come to the conclusion only on the evidence of the prosecution to confirm the guilt of the accused.Since the tribunal is bound by its own rules there should be a fragile onus of disprove of facts within the knowledge of the accused.For instance false declaration and non compliance with the code is by their nature imputation of crime.The production of certified true copies of assets declaration form discharges and shifts the perennial onus of moral allegiance on the prosecution.Similarly, an allegation that a public officer is a cultist must require the prosecution to prove that the public officer promotes a cause or purpose that foster his or her personal or group interest without due regard to merit or fair play (Orji v Ugochukwu (2009).The reverse will culminate in breach of fair hearing and can vitiate the entire trial for non compliance with the rules of natural justice. 52

Non applicability of immunity in code of conduct tribunal proceedings
Immunity is available for certain elected officers 53 with the aim of ensuring that public officers are not distracted from performing their statutory roles with frivolous litigations.The proceeding of the code of conduct tribunal is allergic to immunity.In IMB Security PLC v Bola Tinubu 54 where the court held that the defendant who was then a state governor was immune from legal proceedings. 55In the case of FRN v Kalu 56 the accused was charged for breach of the code in his capacity as a serving governor of a state.The tribunal in her ruling dismissing the application held that the accused was not protected by the immunity clause in the constitution. 57reach of code, abuse of office or corruption is a crime against the state like other criminal offences and the perpetrators deserve no discriminatory persecution.Many public officers have by abuse of power so massively enriched themselves that they wield enormous social and political power and have become threat to stability of the nation's polity. 58For a country where the colour of her passport describes corruption 59 and constant as the Northern star on the world corruption index(Igbinovia .P. Edobor 2003).A frail understanding of the scope of code of conduct may culminate in miscarriage of justice as corruption is breach of code but breach of code is not exactly corruption.

Locus standi rule: Infraction on public interest litigation
It is the Attorney-General of the Federation (AGF) or other officers in the ministry 60 that has the locus standi to prosecute a case of breach of code of conduct. 61rosecution for offences under the Act will be deemed to be done with the consent of the Attorney General. 62The earliest case to establishing locus standi to institute action relating to code of conduct was in Nwankwo v Nwankwo. 63The fact of this case is that the parties were divorced couple and one of the matters in dispute was the proprietorship of a registered firm.When dispute arose the wife contended that since the husband is a civil servant by par.2(b) of the 5 th Schedule to the Constitution, he should not engage or participate in the management and running of any private business, profession or trade.The Plaintiff (wife) asked for an President 21 injunction restraining the husband from interfering in the management of the firm.The Supreme Court held that the constitution do not create a private right or interest for which the plaintiff could claim a relief.The people's involvement in the fight against corruption has numberless legal and administrative bottleneck (The  Guardian, Tuesday, August.21, 2007).Any law that restricts the participation of the people in the process of judicial resolution aids corruption and judicial abuse. 64It leaves adjudication in the hands of politically constrained public authorities which may be tempted to priotize public interest litigation according to logistics and political selection.In Nwankwo's case, despite the justiceable claim, the plaintiff was restrained by statute. 65The legal issue around conflict of interest was unanswered owing to want of standing.It is reiterated that by par.2(b) of the 5 th Schedule to the Constitution that no private citizen can enforce a right under the Act against a public officer.I am tempted to state assiduously that the plaintiff satisfied the traditional standi doctrine under the Act.There is no dispute as to the fact that there was mixed fund between the parties, also that the transaction between the parties was contractual and statutory 66 and lastly that the interest of the plaintiff was higher and greater above that of the general public. 67Therefore the right of the plaintiff to sue to protect his interest is not only unassailable but the established injuries by the plaintiff also demand a remedy. 68Seeing that the plaintiff raised issues which deserve judicial resolution, par.2(b) of the 5 th Schedule to the constitution is ultra vires as same made the private rights of the plaintiff vulnerable.Any statute or part of it that inhibit a legitimate interest in obtaining a decision against an adverse party in public law related proceedings can be declared unconstitutional by the court. 69he constitutional priority that citizens observe the law should require the tribunal to enforce the law whenever she is seized of proceedings which establish that a public officer has disregarded the code of conduct; because all citizens have unpliable interest in being loyal and promoting rule of law.To permit no one to claim is to simply allow possible illegality to continue.As far as Nwankwo's case is concerned, the option open to the tribunal was to strike out the paragraphs challenging proprietary rights of the claimant 70 and decide the constitutional issues bothering on the code of conduct for public officers.

RECOMMENDATION
The Act bestowed the tribunal with the sole duty of determining the rights and duties of parties where the need arises.The law encourages the bureau to "cabalize" the process and effectively frustrate any interested party in code of conduct related proceedings.Enforcement of code of conduct for public officers in Nigeria has a widespread anti-people status.Striking features of countries were assets declaration is a culture is that the tribunal or courts have become an important arena for the pursuit of economic rights for developmental outcomes with lenient criteria for locus standi.This scum provision is undemocratic, satanic and a threat to right of access to court in the constitution.

CONCLUSION
The space should be widened to allow individuals file a case against a public officer in the code of conduct tribunal for cases relating to breach of the code.The right to access the tribunal should depend on the grant of leave by same upon the receipt of petition and disclosure of evidential proof.This will obviously sieve the wasteful petitions which could scoop the judicial process of its resources.The restriction of access to the tribunal at the detriment of individual with a cognizable interest is fatal to a regime committed to instilling discipline in public service.The constitutional priority that citizens should observe the law requires court or tribunal to enforce the law by ensuring adequate number of judicial officers in each tribunal in various states for effective and timely running of proceedings.
The onus of proof on a public officer knocks off the bottom out of natural justice in the Act.The Act should replace onus of "prove" with "disprove".The sublime effect of this adjustment is that even in the absence of the accused, the tribunal cannot come to the conclusion only on the evidence of the prosecution to confirm the guilt of the accused.To discharge this onus of "disprove" of moral uncertainty it will be sufficient that the accused deploy circumstantial evidence which may be slender but compellable.A measure of proof by the accused is inevitable for an anti-corruption effort to flounder noticeably.For the trial proceeding in the tribunal to be balance, the onus on the accused should be that of disprove which undoubtedly is canonical and will wear down the resistance of the accused but will not play down on its constitutional protection.