The Institutionalisation of Gross Misconduct 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

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When I look back at Nigeria from the beginning of the Fourth Republic (1999), I cannot but think that the Politicians may have done worse to Nigeria than good. And, while I do not miss the military era, because I cherish fundamental rights and the rule of law (see Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution)), it is coming at a great expense. It is impossible not to see how the Politicians have contributed in no small measure, to the degradation of the country and her institutions. Aside from this, they are not particularly concerned about the welfare of the common man, and over the years, the living conditions of the people has declined to an all time low. This seems to amount to gross misconduct, on the part of successive Governments populated by Politicians.

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Paucity of Medical Doctors 

Last week, I saw two forwards on social media relating to the Health Sector. One stated that Chief Medical Directors of Teaching Hospitals and Federal Medical Centres had raised an alarm that, soon, there will be no Doctors left in our tertiary hospitals, as they will have all ‘checked out’ like ’Andrew’ of the 1980s (now aka ‘Japa’) to greener pastures (where they are better appreciated than here), as they have been doing for some time now. The forward compared the $1,000 or less monthly salary of Nigerian Medical Consultants, to that of their US counterparts of $8,125 – $17,166, and UK counterparts of £7,805 – £10,523. An unskilled worker in the US, earns more than double the salary of a Medical Consultant in Nigeria! Why would any right thinking Doctor want to stay in Nigeria, working with mostly outdated equipment in harsh conditions, earning a subsistence salary, while illiterates in the National Assembly are paid so handsomely? 

I recently watched a video clip of a sitting in the House of Representatives, where one of the South West members who was trying to make a submission was unable to string a sentence together in English. Even the prompting and assistance from the Speaker was of no use, as he was even unable to follow and repeat what the Speaker dictated to him! Are our laws enacted in Yoruba? I saw a similar video clip  when Hon. Femi Gbajabiamila was Speaker of the House of Representatives, and he also had to prompt and assist a member from Kazaure, Jigawa State, who was unable to express himself properly in English. Though Section 55 of the Constitution allows the business of the National Assembly to be conducted in Hausa, Igbo, and Yoruba when adequate arrangements are made, the days I’m referring to weren’t any of those days; and, I couldn’t but wonder if these members are articulate enough to understand issues, let alone the laws they purport to enact. Yet, a House of Representatives Member’s salary and allowances earn him/her multiple times more than a Doctor who is a well educated life saver and healer, or a Judge! In most cases, the basic monthly salary of a Magistrate who must be a Lawyer of at least 5 years standing, is about $100 – what a toilet cleaner in USA would earn in one 8-hour working day! So, educated Nigerian professionals are ready to Japa, to take up menial jobs that pay much better. There is a huge problem with the system of remuneration in Nigeria; a holistic review is urgently required, if not, it will not only be all medical personnel that will Japa, we won’t have any young professionals left in Nigeria. 

While the Tinubu Administration did the right thing by appointing an international acclaimed Physician and medical expert, Professor Muhammad Ali Pate as the Minister of Health, let’s be truthful and realistic, how much meaningful impact can Prof Pate really make, without the required resources and workforce? He’s a Doctor, not a Magician! I saw another social media forward with a statement attributed to Prof Pate, saying that Ministry of Health only got 15% of the capital allowance budgeted for it in 2024. How much is Prof Pate expected to achieve, with a poorly paid, frustrated and dwindling workforce, coupled with an underfunded health sector? Is this not a tasty recipe for failure? No wonder, the President recently approved funds for top retired Generals to go for medical tourism abroad! If the President had faith in our medical facilities here, would this be so? Is this not an indication that, not enough is being done to improve the Nigerian health sector? Is it not a matter of concern that people die needlessly of the most mundane things in our hospitals, because of lack of adequate facilities, man power, etc? Does this not constitute gross misconduct on the part of Government? 

Reciprocity of Gross Misconduct 

In a democratic setting, gross misconduct goes both ways – not just the employer/employee scenario where the employer can discipline or sack the employee for misconduct, but People (Electorate)/Government scenario too, where Government too can be held accountable for serious misdeeds. Does failing to provide adequate security, decent living conditions and medical facilities for Nigerians, contrary to Sections 14(2)(b) & 17(3)(d) of the Constitution, not constitute gross misconduct on the part of Government? It appears so. Unfortunately or unfairly, for one, Section 6(6)(c) of the Constitution appears to have deprived the people of this right to demand for accountability, let alone the right to mete out punishment for gross misconduct on the part of Government. Instead, it allows Government to escape culpability for most of its misconduct, because Chapter II of the Constitution which contains most of the basic obligations that Government has to the people, particularly the primary purpose of government, that is,  Section 14(2)(b), the security and welfare of people, is not directly justiceable. In numerous cases, Government agencies have breached the fundamental rights of citizens with gusto and aplomb, yet, they pay no price for their gross misconduct. Policemen have even become infamous for their popular saying: “I go kill you, and nothing go happen”. And, indeed, many of them have got away it. I’m sure Nigerians will never forget the case of the murder of the ‘Apo 6’ in Abuja, for example.

Not only did the Senior Police Officer who was allegedly the cause of the unfortunate incident get away with it, he was said to have been promoted and al, his back salaries and allowances paid. Is murder in the line of duty not gross misconduct, an abuse of the Code of Conduct for Public Officers, a breach of Section 33(1) of the Constitution and also a heinous criminal offence?

What is the Definition of Gross Misconduct?

In Borishade v NBN 2007 1 NWLR Part 1015 Page 217 at 241 per Monica Dongban-Mensem, JCA (now PCA), the Court of Appeal noted that “there has been no clear definition under the law of this nation, as to what constitutes a misconduct”. That in the case of employer/employee, “the Supreme Court gave a definition of “gross misconduct” inter alia, as conduct of a grave and weighty character, as to undermine the confidence which should exist between the employee and employer”. 

In Inakoju & Ors v Adeleke & Ors (2007) LPELR-1510 (SC) per Dahiru Musdapher, JSC the statutory definition of gross misconduct was given as “a grave violation or breach of the provisions of this Constitution, or a misconduct of such a nature as amounts to, in the opinion in the House of Assembly, gross misconduct”. Also see Sections 143(11) & 188 (11) of the Constitution. The Apex Court per Niki Tobi, JSC went on to define “gross” in this context as “atrocious, colossal, deplorable, disgusting, dreadful, enormous, gigantic, grave, heinous, outrageous, odious and shocking”. 

We see that, in Inakoju & Ors v Adeleke & Ors (Supra), the first part of the definition of gross misconduct is specific – a violation of the Constitution. His Lordship, Niki Tobi, JSC however, stated that not every breach of the Constitution can lead to the removal of a Governor or Deputy, only a grave one, and His Lordship went on to expatiate on what he considered to be a grave violation or breach of the Constitution, such as abuse of Code of Conduct for Public Officers; breach of Chapter IV of the Constitution; interference with LGC funds and stealing of the funds for personal gain or the comfort of the State Government; and instigation of military rule and military government. What, in the House of Assembly’s opinion could constitute gross misconduct, His Lordship, Niki Tobi JSC stated could be, refusal to perform constitutional functions; abuse of power; sexual harassment; drunkenness; stealing of government funds and certificate forgery. By this definition, does the non-provision of adequate security for Nigerians by successive Governments, which has led to thousands of killings and maiming, not amount to gross misconduct on the part of Government? What about Government’s failure to harness the resources of the country to promote national prosperity, but, on the contrary led Nigeria to become the poverty capital of the world in 2018; is this not deplorable? See Section 16(1)(a) of the Constitution. Regrettably, another common complaint of Nigerians, is that the other way to punish Government and public officials for gross misconduct, is by voting them out during elections; but, because of election rigging and manipulation, this cannot be done effectively in Nigeria. In UK, when the British people were tired of the Conservatives and their policies, they simply voted in Labour at the last general election. Ditto for the Americans who voted out the Democrats for Republican Trump. 

The other day, we saw a social media news report which alleged that the National Assembly had requested for a bribe of almost half a billion Naira from the Federal Universities, to pass their budget! Aside from the fact that this alleged request is not only an abuse of power that runs foul of Section 15(5) of the Constitution which prohibits corruption, it is a criminal offence and a breach of the Code of Conduct for Public Officers (CCPO) (see Paragraphs 6(1), 9 & 12 of the CCPO Part I Fifth Schedule to the Constitution). Such request amounts to gross misconduct, as members making such requests could end up at the Code of Conduct Bureau and be ordered to vacate their seats if found culpable, without prejudice to criminal prosecution in a court of competent jurisdiction. See the case of Aroyame v Governor of Edo State & Anor (2022) LPELR-57819(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN)(on abuse of power); Odugbemi v State (2023) LPELR-60331(SC) per Helen Moronkeji Ogunwumiju JSC (on official corruption). But, it will probably be a cold day in hell, before those that make such odious requests are outed for gross misconduct. It is mostly the common man, whose children attend Nigerian tertiary institutions. Most Politicians send their children abroad for their studies; Nigerians are ‘thrilled’ with their graduation photos regularly. Meanwhile, the Federal Universities are seriously underfunded, so much so that, ASUU goes on strike regularly to protest about this and their poor conditions of service. I once watched a television interview of the President of ASUU, Professor Victor Osodeke, who stated that students in the science departments have been reduced to using kerosene stoves for experiments, instead of Bunsen burners! Should any decent person with a conscience, who is vaguely interested in the education of Nigerian Youths, seek to deprive Universities of their already insufficient funds? 

Instead of punishing public officials for this type of clear ‘gross misconduct’, the Politicians bastardise and trivialise the meaning of the term which already seems to be rather wide, so that it now appears that gross misconduct can simply be interpreted to mean standing up when you are asked to sit down, or anybody that isn’t in the good books of the powers that be, for instance, the Edo LGC Chairmen accused of gross misconduct by Governor Okpebholo because they failed to make their accounts available to him for inspection, a request which the law doesn’t allow him to make to an independent, autonomous level of government. Pray tell, how could the refusal to honour an unlawful request be heinous, deplorable or shocking? See APC & Ors v Enugu SIEC & Ors (2021) LPELR-55337 (SC) per John Inyang Okoro, JSC; AGF v AG Abia & 35 Ors (2024) LPELR-62576 (SC) per Emmanuel Akomaye Agim, JSC; or Deputy Governors whose impeachment/removal were orchestrated by their Principals who were unhappy with them, for one reason or the other. 

Conclusion 

It is the height of hypocrisy that Government, Public Officials, Politicians and our so-called leaders who are mostly guilty of ‘gross misconduct’, have found ways to wangle their way out of accountability and responsibility for their misdeeds, while they manipulate the definition of the term to the most ridiculous levels, in order to use it as a tool to oppress and witch-hunt those who they may not favour, out of office. The consequences of some of the acts and omissions of successive Governments and public officials, fit like a glove with the definition of gross misconduct, as elucidated in Inakoju & Ors v Adeleke & Ors (Supra); yet, no price is paid. This negative trajectory, in turn, erodes the trust of the people, encourages corruption, and hinders the growth of the nation.