- SERAP drags upper chamber to UN
By Omololu Ogunmade, Paul Obi in Abuja and Gboyega Akinsanmi in Lagos
The Nigerian Labour Congress (NLC), human rights lawyer, Mr. Femi Falana and an advocacy group, Friends in the Gap Advocacy Initiative (FGAI), yesterday condemned the Senate over its attempt to amend the Code of Conduct Bureau (CCB) and Code of Conduct Tribunal (CCT) Acts
They accused the Senate of setting a wrong precedence with the amendment of the two acts, stating that the move portends a dangerous trend in the polity.
The Senate had last week began the process of amending the CCB and CCT Acts by initiating two bills.
The first amendment bill, sponsored by Senator Peter Nwaboshi, (Delta North) and entitled: ‘Code of Conduct Act Cap C15 LFN 2004 (Amendment) Bill 2016,’ was first laid before the Senate last Tuesday. However, the bill curiously passed the second reading last Thursday barely two days after initiation.
The second bill, sponsored by Senator Isah Misau (Bauchi Central) and tagged: ‘A bill for and Act to amend the Administration of Criminal Justice Act, 2015 and other related matters,’ seeks to remove the CCT from the list of courts statutorily empowered to initiate criminal proceedings against accused persons. Debate on the second bill has been slated to commence this week in the Senate.
But NLC President, Ayuba Wabba, explained that the timing of the amendment was fraught with ulterior motive, taking cognisance of the ongoing trial of the Senate President, Bukola Saraki.
According to the NLC, the stiff opposition the amendment had received from ranking members of the Senate like Deputy Senate President, Ike Ekweremadu, and Senator Yahaya Abdullahi is a signpost of misgivings associated with the purported bill.
Wabba stated that: “In the past one week, the Senate initiated a process for the amendment of the Act establishing the CCB and the CCT.
“It cited as reasons for the amendment, the need to give every public officer (appearing before the tribunal) a fair hearing, justice and equity (in line with the provisions of Section 36 [a] of the 1999 Constitution (as amended) and the need to remove from political control, the two bodies which now play a critical role in the administration of criminal justice system.”
The NLC president expressed labour’s reservation, particularly, on the speedy reading of the bill on the floor of the Senate.
“In furtherance of its objective, the Senate fast-tracked the process of this amendment via two readings (first and second) within 48 hours. It has also set in motion the process for removing the jurisdictional powers of CCT on criminal matters via the amendment of the Administration of the Criminal Justice Act.
“In consideration of the fact that sometimes in most climes, corruption trials are triggered by reasons other than corruption, it makes a lot of sense to create legislations that guarantee fair trial and justice for the accused. Secondly, legislative amendments are part of the constitutional functions or duties of the National Assembly,” Wabba added.
While condemning the special interest at display on the bill, NLC stressed that the bill is dangerous and would not be in interest of the Nigerian public.
“However, we at the NLC hold the view that the noble intention of the Senate notwithstanding, the timing is suspect and fraught with danger.
“It is quite intriguing that it took the trial of the Senate President for the Senate to discover these flaws in the law(s). Putting it bluntly, in spite of the spirited defences by the Deputy Senate President to the contrary, not a few believe that this legislative move is a desperate attempt to scuttle the trial of the Senate President, Saraki, at CCT,” the congress stated.
NLC also queried the attempt by the Senate to extend the privileges of principal officers of the upper chamber using the CCT amendment as a platform.
Wabba stated that: “We do not think the privileges of the Senate President extend to exemptions from civil or criminal trials. At the moment, only the president and his vice, the governor and his deputy enjoy this rare privilege. Thus, what the Senate is trying to do is no more than a legislative ambush.
“We need not remind the Senate that we are all equal or ought to be equal before the law, in spite of our stations in life. We similarly believe that the fight against corruption should be total and not selective. If this amendment therefore is allowed to scale through, it would have set a dangerous precedent.
“Accordingly, the Senate would do well to listen to one of their own, Senator Yahaya Abdullahi of APC, representing Kebbi North. Timing is of essence here.”
Meanwhile, the NLC said it was still studying details of the $6 billion Chinese deal recently signed by President Muhammadu Buhari and his Chinese counterpart, Xi Jinping.
Speaking to THISDAY, NLC Secretary General, Dr Peter Ozo-Ezon, explained that, the deal would assist Nigeria in scaling up the country’s infrastructure.
He said: “We are pleased that the deal will help Nigeria in infrastructure. It’s really a positive deal in that direction. It is something that is desirable.”
Ozo-Ezon told THISDAY that considering the “volume of trade Nigeria and China have, the currency swap aspect of the deal will help Nigeria in engaging with Chinese in a more broad way.”
Though, the NLC scribe hinted about a possible disaffection about the deal in the West, he however explained that western countries like United States, United Kingdom and Germany have not been forthcoming, embracing China is therefore the best option for Nigeria.
“That has always been there; the West doesn’t want us to move to China. You know, concessionary funding only emerged because of China’s emergence on the global stage.
“The west shouldn’t dictate to us where we go to. The west has not been forthcoming, so if China opens up to us, we should take the advantage,” Ozo-Ezon maintained.
On his part, Falana in a letter he addressed to the Speaker of House of Representatives, Yakubu Dogara and copied the Senate President, Dr. Bukola Saraki, said the National Assembly lacked legislative powers to alter any section of the CCB) and CCT Acts without amending some provisions of the 1999 Constitution.
He consequently argued that the proposed amendment of the Act that scaled through the second reading within 48 hours “is an exercise in futility.”
Falana in a two-page letter he authored, argued that the 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.”
He provided different reasons the proposed amendment would not stand, citing its contravention to the 1999 Constitution and a judgment of the Supreme Court delivered in a suit between Attorney-General of Abia State v Attorney-General of the Federation (2001).
He argued that to the extent that the proposed amendment was designed to serve the interests of an individual, it was a violation of section 4(2) of the 1999 Constitution which empowered the National Assembly “to make laws for the peace, order and good government of the Federation or any part thereof…”
He said 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.
He thus said section 3 of the Act which the National Assembly seeks to amend “has become spent… 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.”
The senior advocate also cited a Supreme Court judgment stating that 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.”
He therefore asked the National Assembly to stop subverting the obligation of the federal government under the leadership of President Muhammadu Buhari “to abolish all corrupt practices and abuse of power” having been sworn in to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution.
He said 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.”
Also FGAI condemned in strong terms the sudden move by the Senate to amend CCB and CCT Acts, describing it as ill-timed and ill-motivated.
FGAI in a statement by its Executive Director, Mr. George Oji, condemned the speed at which the Senate is pursuing the amendment, describing it as suspect and worrisome.
According to Oji, the amendment fails all known basic moral tests, noting that it is very unusual for a bill to be laid before the Senate and taken through the second reading and simultaneously committed to the committee stage within a week.
He also expressed concern over the haste to pass the bill by the Senate, observing that the Senate Committee on Judiciary and Human Rights was given just two weeks to conclude work on it and return it to the Senate for passage.
He added: “It is expected that when debate on the second bill commences this week, the process will not assume no less an accelerated approach.
“Clearly, the intention of the two bills is to whittle down the powers of both the CCB and CCT. No doubt, coming at a time like this, when the Senate President, Bukola Saraki, is currently facing trial before the CCT over allegations of false assets declaration and money laundering, raises a lot of suspicion about the sincerity of the lawmakers that the amendment has nothing to do with the Senate President’s trial.
“Considering their antecedents in lawmaking, it will be hard put for the Senate to explain to Nigerians that the amendment is not self-serving. It is wrong to legislate in anger. Legislations must not only be altruistic but futuristic. It is unfortunate that the Senate has not accorded the same kind of urgency it is currently doing in the amendment of the CCB and CCT Acts to timely initiation of legislations to support the Buhari administration’s resolve in stamping out corruption in the country,” Oji said.
Meanwhile, Socio-Economic Rights and Accountability Project (SERAP), has petitioned Professor Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights asking him to request the National Assembly of Nigeria, specifically the Senate, to withdraw amendments to the CCB and CCT Act.
SERAP said if the amendments are allowed to scale through, it would seriously weaken the act, undermine the fight against corruption in the country, exacerbate extreme poverty and violations of internationally recognised human rights.
In the petition dated April 15, 2016 and signed by it Executive Director, Adetokunbo Mumuni, the organisation expressed serious concern that the Senate would any moment from now pass amendments to Public Officers Protection Act; Administration of Criminal Justice Act; Code of CCB and the CCT Act with the political objective of securing a soft-landing for the Senate President Bukola Saraki who is facing corruption charges.
The petition copied to Mr. Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights and the Conference of States Parties to the UN Convention against Corruption read in part: “SERAP considers these amendments to be in bad faith, patently an abuse of legislative powers, politically biased, and demonstrably unjustified in a democratic and representative society governed by the rule of law, and incompatible with the country’s international human rights obligations and commitments particularly the UN Convention against Corruption, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the African Charter on Human and Peoples’ Rights, which Nigeria has ratified.
“SERAP also considers the amendments to amount to “legislative rascality”, as they are not legitimate exercise of legislative power, and if allowed can exacerbate extreme poverty and violations of the right to an adequate standard of living of Nigerians and other human rights.
“The amendments also threaten the injunction that government must be accountable, responsive and open; that public institutions must not only be held to account but must also be governed by high standards of ethics, efficiency and must use public resources in an effective manner.
“SERAP is concerned that while deserving bills have been left to languish at the bottom of their legislative programmes, the Nigerian Senate has fast-tracked the passing of these obnoxious amendments. The drafters of the constitution would not have foreseen that the Senate would use its legislative power to encourage corruption and to undermine rather than advance constitutional guarantees and principles.”
SERAP argued that limitations to the legislative powers of the Senate can be implied not only from the chapters two and four of the 1999 Nigerian Constitution (as amended) relating to the obligations of all organs of government to promote transparency, accountability and combat corruption and recognition of citizens’ fundamental human rights but also by voluntary acceptance of international human rights obligations by Nigeria.
It noted that the 1999 Constitution 1999 (as amended) grants legislative power to the Senate to “make laws for the peace, order and good government,” but such power implies that the National Assembly including the Senate would serve as a crucial bastion of transparency, accountability, and the rule of law that are necessary to reduce poverty, establish a corruption-free society, and effective enjoyment of human rights.
“Rather than be inspired by the spirit of public service by initiating legislation that promotes transparency, accountability and human rights, the Senate is legislating to encourage corruption and impunity, serving as both a shield and sword to advance personal agendas. SERAP argues that the state’s obligation to respect, protect, promote and fulfil human rights inevitably creates a duty to develop effective anti-corruption legislation and not to promote corruption and impunity of perpetrators.”
The group noted that the Senate does not enjoy unfettered, unconditional and absolute legislative powers and should therefore not be allowed to create or change laws on a virtually unrestricted basis.