WHY DR. BUKOLA SARAKI'S SURREPTITIOUS EX-PARTE IS FUTILE AND A NULLITY
The news that charges have been filed against the Senate President, Dr. Bukola Saraki at the Code of Conduct Tribunal was received by many with shock. The expectation, however, was that the accused would be in haste to clear his name, as honourable men are wont to.
On the contrary, Dr. Saraki filed an application before the Federal High Court seeking to stop the scheduled trial at the Code of Conduct Tribunal. The application was granted ex-parte.
The ex-parte application and its grant represent the two of the most frustrating avenues through which justice is frustrated and judicial process abused in our country's courts of 'justice'. The fact that the number three man in our political hierarchy is the perpetrator in this case is profoundly disappointing.
More importantly, however, is the fact that the grant of the application was in manifest error of trite law such that keen watchers may be pardoned for suspecting that something underhand was involved in the entire process.
In the first place, no court of law has the powers to interfere with, or in any way restrain the exercise of the judicial powers of another court of co-ordinate jurisdiction. This is trite and well established in accordance with the principles of the doctrine of judicial precedent. In this case, the Federal High Court and the Code of Conduct Tribunal are courts of coordinate jurisdiction: appeals from the decisions of the Code of Conduct Tribunal lie to the Court of Appeal (s.23 (4) of the Code of Conduct Bureau and Tribunal Act) and appeals from the decisions of a Federal high Court lie to the court of Appeal (s. 243, Constitution of the Federal Republic of Nigeria, 1999).
In the second place, The Code of Conduct Bureau is not a prosecuting authority; under section 3 of the Code of Conduct Bureau and Tribunal Act, it is merely an administrative and investigative authority and its role in the prosecution of defaulters under the Code of Conduct Bureau and Tribunal Act is limited to recommending persons for prosecution. The prosecuting authority in respect of offences under the Code of Conduct Bureau and Tribunal Act is the Office of the Attorney General. Thus section 24 (3) of the Code of Conduct Bureau and Tribunal Act provides the Attorney General or any one nominated by him may bring charges in respect of offences under the Act.
In the third place, it is incorrect for Dr. Saraki to hinge the basis of his ex parte application on the fact that there is no incumbent Attorney General capable of instituting actions against him or any criminal action whatsoever. This line of legal reasoning, once regularly cited, has since been discredited by the Supreme Court in a number of cases and, most recently, in the case of Federal Republic of Nigeria v. Senator Adewunmi where the Supreme Court, per Umaru AltuKalgo, JSC said: “There is no doubt at all that the power to institute criminal proceedings against any person in the 1999 Constitution lies on the Attorney-General of the State or the Federation as the case may be, but such power may be exercised by the Attorney-General himself or through any officers of his department. See Sections 174 and 211 of the 1999 Constitution. These sections though very similar in content do not require that the officers can only exercise the power to institute criminal proceedings if the Attorney General expressly donated his power to them. The provisions of the sections presume that any officer in any department of the Attorney General’s office is empowered to initiate criminal proceedings unless it is proved otherwise.”
Furthermore, section 25(3) provides that the question whether any authority has been given in pursuance of this section requiring the Attorney General to donate his prosecutorial powers under the Act, “shall not be inquired into by any person”.
The decent course for an accused, if he has concerns, is to raise preliminary objection(s) before the tribunal where he has been charged. Dr. Saraki is advised to so do if he is to remain qualified to remain as the number one lawmaker in this country.
On September 18, 2015, following Dr. Bukola Saraki's failure to appear before the Code of Conduct Tribunal as charged, the Tribunal, on the application of the prosecutor, issued a bench warrant for the arrest of Dr. Saraki. This power is inherent in any tribunal having the full powers of a court of law, such as the Code of Conduct Tribunal. Furthermore, sections 2 and 14 of the 3rd Schedule to the Code of Conduct Bureau and Tribunal Act empower the tribunal to compel the attendance of accused persons and witnesses.
Under section 23 of the Code of Conduct Bureau and Tribunal Act, if found guilty, the tribunal is empowered to impose any of the following punishments:
(a) Vacation of office or any elective or nominated office, as the case may be;
(b) Disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and
(c) Seizure and forfeiture to the State of any property acquired in abuse or corruption of office.
Furthermore, trial or conviction under the Code of Conduct Bureau and Tribunal Act does not preclude a separate trial under any other applicable criminal law (Section 24 Code of Conduct Bureau and Tribunal Act).
Written by Barrister Idahosa Anthony.