The question now is, are the punishment contained in the code of conduct too wide or too narrow? Should public servants of the middle and lower cadres be included? Is the restriction on the individual freedom of enterprise and of acquisition too severe? What is to be the reasonable balance between the need for individual initiative and the prevention of exploitation? Is the loss to the nation resulting from the exclusion of “leaders” from entrepreneurial initiative a reasonable price to pay for the prevention of exploitation?
The Code of Conduct Bureau and the Code of Conduct Tribunal are both military inventions. They are part of the military legacy imposed on this nation by four military regimes – those of Muritala Muhammed, Olusegun Obasanjo, Ibrahim Babangida and Abdusalam Abubakar.
If one looks at the 1966 constitution, there is no reference to the two bodies. The nearest reference on oath is in Section 96 of the 1963 Constitution of the Federal Republic of Nigeria. When the idea of a code of conduct was adopted in the Constitution Drafting Committee in 1975, Nigeria was following the footsteps of Tanzania and Zambia. For, apart from Tanzania and Zambia and of late Ghana, there are no other countries in the world where such bodies exist.
In 1967, the Tanzania leadership code was part of the Arusha Declaration during the tenure of Dr. Julius Kambarage Nyerere (1922-1999), the Mwalimu simply referred to as the ‘TEACHER’. Originating therefore as a resolution, the code of conduct was adopted at a party meeting and became incorporated into the constitution and rules of the party binding on party members who are within the definition of a “leader”. To rest its binding force on a party resolution would have made it unenforceable against leaders who are not party officials or whose officers are not dependent on party membership. “For this reason it was thought necessary to incorporate it into Constitution of the country. This was done by means of a constitutional amendment. However the constitutional provisions have a limited application to persons; they apply only to members of the National Assembly, operating as a condition of eligibility for election or appointment to, and membership of, the Assembly, subject however to certain exceptions and safeguards. For example, the consequences of breach of the Code are not self-operating. They entail an action in the High Court instituted by the Attorney-General. Only if the Court finds the allegation of breach established, does the sanction of disqualification or vacation of seat follow.
The various regulations governing civil servants, councilors and officers of parastatal organisations were similarly amended to incorporate the code. Thus, the source of authority of the code differs for the various categories of leaders: for the M.Ps and ministers it is the Constitution, for public servants the appropriate regulations, and for party officials the party resolution. The enforcement machinery is also different for each category of leaders.”
In Zambia, on the other hand, the Constitution is the source of the authority of the Code for all categories of leaders. The Constitution establishes a Leadership Committee, and authorises it to draw up a Code in the form of regulations which are to have effect as if enacted in the Constitution. Compliance with the code is a condition for election, nomination, or appointment to offices specified therein, though the President may, if of the opinion that to do so would be necessary or desirable in the public interest, authorise the nomination or appointment of a person otherwise disqualified, on condition that he complies within three months. Breach of the Code by the holder of a specified office (other than the office of the President, judge of the Supreme Court, judge of the High Court, investigator-general, director of public prosecutions and auditor-general) operates to vacate the office, if it is established either on a written admission or by the decision of a tribunal established by the Constitution with a right of appeal to the Supreme Court. The tribunal consists of a chairman appointed by the Chief Justice and two other persons appointed by the President; the Chairman must be a judge or a person qualified to be a judge of the High Court. (The exemption of the President, Judge, etc. from the sanctions of the Code is because the Constitution provides other machinery for their removal from office).
In both Tanzania and Zambia, the Code applies only to leaders, defined so as to cover wide categories of persons: ministers, M.Ps, all party officials, senior officials of organisations affiliated to the party and of parastatals and the Universities, councilors and civil servants in high and middle cadres.
The purpose of the Code is that a leader should not put himself in a position where his personal interest conflicts with his responsibility as leader, or which enables him to exploit others. With certain exceptions, the Code therefore forbids a leader or his spouse to draw more than one salary, to employ workers in connection with any trade, business, profession or vocation, including the running of a hotel, boarding House or like establishment for gain or profit; to own a house let out on rent to others; to be shareholders or directors in a privately-owned enterprise.
The tribunal was designed to function hence it was implanted in the constitution. It was not setup as a joke. The tribunal is not under the Supreme Court. It is totally independent. It can bark and bite. The earlier the tribunal makes a scapegoat, the more will it be taken seriously.
These were the prayers of the Sub-Committee on National Objectives and Public Accountability under Professor Ben Nwabueze in 1975. The committee also made provision for the Ombudsman. General Olusegun Obasanjo implanted the code of Conduct bureau and the Code of Conduct tribunal into the 1979 constitution but jettisoned the creation of an Ombudsman.
If you look at the fifth schedule of the 1979 Constitution, from section 1 to section 21, they contain the recommendations of Professor Nwabueze. In 1980, President Shehu Shagari appointed Alhaji Isa Keita (1912-1994), the Waziri of Katsina as Chairman of the Code of Conduct Bureau but Alhaji Shagari did not appoint the members of the Code of Conduct tribunal, hence the non-functioning of the bureau.
In 1988, General Ibrahim Babangida appointed a ten-man code of conduct bureau with Reverend Cannon Mohammed as its chairman and Dr. Rex Akpofure as its Secretary. In 1998, a Constitutional panel review under Justice Niki Tobi was appointed by General Abdusalam Abubakar.
Justice Niki Tobi panel lifted word for word, line by line the contents of the 1979 constitution on the code of conduct bureau and code of conduct tribunal to be part of the 1999 Constitution and they are contained in the fifth schedule of the Constitution from section 1 to section 19. The present members of the Code of conduct bureau are still Mr. Sam Shaba as chairman. The tenure of the board of Mr. Sam Shaba has expired since April this year. President Muhammadu Buhari is yet to reconstitute new members of the code. Other members are Dr. Christy Ekoja, Dr. Ademola Adebo, Alhaji Disha Muhammed, Alhaji Ibrahim Mazo, Mr. Okechukwu Nwadinobi, Chief Stephen Bekefala while Mr. Choo Tony Salle Kyanni is the Secretary.
The question now is, are the punishment contained in the code of conduct too wide or too narrow? Should public servants of the middle and lower cadres be included? Is the restriction on the individual freedom of enterprise and of acquisition too severe? What is to be the reasonable balance between the need for individual initiative and the prevention of exploitation? Is the loss to the nation resulting from the exclusion of “leaders” from entrepreneurial initiative a reasonable price to pay for the prevention of exploitation?
In 2003, the Code of Conduct Tribunal and the Independent Electoral Commission were put under the office of the Secretary to the Government of the Federation in other to guarantee their independence. The tribunal was designed to function hence it was implanted in the constitution. It was not setup as a joke. The tribunal is not under the Supreme Court. It is totally independent. It can bark and bite. The earlier the tribunal makes a scapegoat, the more will it be taken seriously.
Eric Teniola, a former Director at the Presidency, stays in Lagos.
