INTRODUCTION: The Supreme Court, our apex court, has spoken in the Dr Bukola Saraki case, and its judgment, delivered on February 5, 2016 carries an authority that is unchallengeable, except in the court of public opinion, which is a vital bedrock of governance in a democratic society, such as we aspire to become. All of us, as stakeholders in the Nigerian state project, constitute the latter court, and have a duty to contribute to the discussion on the questions provoked by the Supreme Court judgment in the case.

The unchallengeability of the said judgment pre-supposes that it meets the standards of near-infallibility, conclusiveness and finality expected from a court of last resort, and that it is informed by the compelling need to ensure that decisions of the Court, as a court of last resort, are consistent with each other, and, above all, with the supreme law of the land, the Constitution, as well as with laws validly enacted by the legislature, all in the interest of the need, also imperative, for certainty and symmetry in the law and for its orderly development.

Whether the Supreme Court decision on the issue of the jurisdiction of the CCT is consistent with the constitution.

The judgment in the Saraki case will now be critically examined against the standards and requirements stated above, beginning with the issue whether the decision is consistent with the law of the Constitution which, in affirmation of it supremacy, declares null and void, "any law " that is inconsistent with its provisions: section 1(3). A court decision is indisputably a law within the meaning of section 1(3).

The Supreme Court held, per Onnoghen JSC delivering the lead judgment, that "paragraph 18 of the 5th schedule to the 1999 Constitution as amended is replete with unambiguous terms and expressions indicating that the proceedings before the said Conduct of Tribunal are criminal in nature", that "the said tribunal has a quasi-criminal jurisdiction designed by the 1999 Constitution", and that "it is a peculiar tribunal crafted by the Constitution."

The question arising is whether the Supreme Court is right in holding that the Constitution itself invests the Code of Conduct Tribunal (CCT) with a quasi-criminal jurisdiction. The decision is based partly on inference from the fact that many of the stipulations in the Code of Conduct in the Fifth Schedule to the Constitution are coached in prohibitory terms.

But a close look at the Code shows that, notwithstanding the prohibitory terms of such stipulations, the Code is, in its essential character, simply a body of rules designed to regulate the civil, not criminal, behaviour of public officers, much in the fashion of the Civil Service Rules.

The view that the Fifth Schedule invests the CCT with a quasi-criminal jurisdiction is negated by paragraphs 18(3) & (6) of the said Schedule, especially paragraph 18(3) which says that "the sanctions mentioned in sub-paragraph (2) hereof shall be without prejudice to the penalties that may be imposed by any law where the conduct is also a criminal offence" This suggests that the conduct proscribed by the Code is not thereby made a criminal offence.

In any case, it is not the purpose or role of a constitution anywhere in the world to create criminal offences, that being the function of the statute law. Conformably with the generally accepted role of a constitution, the Nigerian Constitution 1999 provides in section 36(12) that "a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law" (emphasis supplied).

Criminal jurisdiction

The Constitution is not included. Accordingly, any criminal jurisdiction or "quasi-criminal jurisdiction" claimed for the CCT could not have derived from, or been conferred on it by, the Constitution. The Supreme Court's attribution of a quasi-criminal jurisdiction to the CCT is also inconsistent with section 6 of the Constitution, which vests judicial power in nine courts listed by name in subsection (5) and "such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly [or a House of Assembly] may make laws".

The CCT is not one of the nine courts listed by name in section 6(5). Since it is established by the Constitution, and if it had been the intention that it should share in the vesting of judicial power, the Constitution should have mentioned it by name like the nine courts so named, instead of leaving it to be included by law made later by the National Assembly under the residual clause. It must be concluded, therefore, that the CCT does not partake in the vesting of judicial power; in other words, it is not one of the courts in which judicial power is vested by section 6(1) of the Constitution - assuming it to be a court in the distinctive sense of section 6 of the Constitution.

Judicial power

The implication of this conclusion flows from the nature of judicial power and the incidents that are exclusive to it. The High Court of Australia (the highest court in that country) has held in Waterside Workers' Federation of Australia v. J.W. Alexander Ltd (1918) 25 CLR 434 at page 444, per Chief Justice Griffith for the Court: "It is not disputed that convictions for offences and the imposition of penalties and punishments are matter appertaining exclusively to judicial powers."

The word "exclusively" is underlined for purposes of emphasis. The learned Chief Justice has observed earlier in the judgment at page 442: "It is impossible under the constitution to confer such functions upon any body other than a court, nor can the difficulty be avoided by designating a body, which is not in its essential character a court, by that name, or by calling the function by another name. In short, any attempt to vest any part of the judicial power.......in any body other than a court is entirely ineffective". As under the Constitution of Nigeria 1999, judicial power is vested in courts specified in section 6(5), it follows that the courts so listed are the only tribunals that can try and convict a person for a criminal offence under the principle laid down by the High Court of Australia in Waterside Workers' Federation of Australia v. J.W. Alexander Ltd, supra.

The CCT, not being so listed, has no power or jurisdiction, derived from the Constitution, to try, convict and impose punishment on persons for a criminal offence; the decision of the Supreme Court attributing such jurisdiction to it, as jurisdiction derived from the Constitution, is null and void under section 1(3) of the Constitution; also any law made by the National Assembly that confers such jurisdiction on the CCT is null and void (see further below)

The principle of the decision in Waterside Workers' Federation of Australia v. J.W. Alexander Ltd, supra, as enshrined in sections 6, 35(1)(a) and 36(4) of the Constitution of Nigeria, has been affirmed and re-affirmed by our Supreme Court.

Disciplinary tribunal

Thus, in Sofekun v. Akinyemi (1981) 1 NCLR 135 where a public officer in the public service of the then Western Region of Nigeria was dismissed upon a finding of guilt for indecent assault and attempted rape by a disciplinary tribunal constituted and empowered in that behalf under the Public Service Commission Regulations, his dismissal was held null and void by the Supreme Court as a usurpation of judicial power.

In a judgment concurred in by Irikefe, Bello, Idigbe, Obaseki, Eso and Aniagolu JJSC, Fatayi-Williams CJN said at page 146: "It seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing.....

No other Tribunal, Investigating Panel or Committee will do...If Regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive branch of the State Government) and taken out of the hand of the magistrates and judges....

If the Commission is allowed to get away with it, judicial power will certainly be eroded......The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever". (emphasis supplied). The decision was re-affirmed by the Court in Garba v. University of Maiduguri [1986] 1 NWLR (Pt 18) 550 where some students involved in acts of rioting and arson were expelled from the University.

Constitutional requirement

The Supreme Court, reversing the Court of Appeal and affirming the trial court, declared the expulsion null and void: first, since the expulsion was based on criminal offences alleged to have been committed by the students, only the court, but not the Visitor, Vice-Chancellor or the investigating panel set up by the University, is, by virtue of sections 6 and 33(1), (4) and (13) of the 1979 Constitution, competent to adjudicate upon the guilt or innocence of the students for the alleged criminal offences; second, whilst the University authorities may expel a student for misconduct not amounting to a criminal offence, yet as a disciplinary body, they are bound to act judicially, comply with the constitutional requirement of fair hearing and observe the other requirement of the rule of natural justice; in this case, the students were not given a fair hearing, and as the Deputy Vice-Chancellor, being a victim of the students' rampage (his house was burnt down), his chairmanship of the investigating panel created a real likelihood of bias in that he was thereby put in a position of being both a witness and a judge all at the same time.

It is remarkable that, in Justice Onnoghen's 37-page lead judgment, section 6 of the Constitution and the Supreme Court's previous decisions in Sofekun v. Akinyemi (supra) and Garba v. University of Jos (supra), based on that section were not cited or considered. They were also not cited or considered in any of the other judgments delivered in the case.

The judgments must be taken to have been given per incuriam, with the consequences noted later below. But the public deserves to know why. The issue of jurisdiction in the Saraki case cannot be settled aright without reference to section 6 and the decisions based on it.