Lawyer and human rights activist, Mr. Femi Falana (SAN), has branded as illegal the ongoing efforts by the two chambers of the National Assembly to amend the Code of Conduct Bureau and Code of Conduct Tribunal Act. In a letter to the Speaker of the House of Representatives, Yakubu Dogara, Falana said though the House of Representatives has not started deliberations on the bill for the proposed amendment, Falana advised Dogara not to lend support to the illegal amendment of the Act.
The letter also urged the Speaker to remind members of the House that when the Corrupt Practices and other Related Offences Act 2000 was amended in 2003 on account of the investigation of allegations of corrupt practices involving the leadership of the Senate, the Federal High Court set aside the amendment as it violated the Constitution.
The same fate warned the letter, awaits the Bill to amend the CCB and CCT Act. It urged the House to persuade the Senate to terminate further debates on the Bill, which it passed it for second reading last week, barely 48 hours after its presentation by its sponsor, Senator Peter Nwaoboshi.
Falana, who described the proposed amendment as hasty, added that the fact that it has coincided with the trial of the Senate President, Dr. Bukola Saraki, by the Code of Conduct Tribunal (CCT) for alleged false assets declaration is an indication of insensitivity and opportunism by the National Assembly.
"It is insensitive, suspicious, self-serving and opportunistic. It is also illegal and unconstitutional in several respects," the letter read.
Falana contended that the illegality of the proposed amendment is inherent in its design to serve the interests of an individual, a fact that violates Section 4(2) of the Constitution, which has empowered the National Assembly to make laws "for the peace, order and good government of the Federation or any part thereof..."
The letter, which was copied to Saraki, also pointed out the Senate President's decision not to preside over the plenary session whenever the bill comes up for debate violates the Code of Conduct for Public Officers.
"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, which stipulates that 'A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities, ' the letter stated.
Falana also argued that Section 3 of Act, which the National Assembly seeks to amend, is already invalid and inoperative.
"Senator Nwaoboshi was reported to have said that he was proposing an amendment to Section 3 of the Act to provide 'for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.'.
"With respect, 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 letter added. Citing the matter of Attorney-General of Abia v Attorney-General of the Federation (2001) 17 WRN 1, Falana said the Supreme Court held thus: " 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."
Given this, he explained, the National Assembly lacks the power to make laws which have similar provisions to those of the Constitution. As such, he added, Section 3 of the Act has become a duplication of the relevant constitutional provision. "
Consequently, its 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," he argued.
He explained that because the proposed amendment cannot alter, enlarge or curtail the provisions of the Constitution, the Senate should stop wasting time and resources on illegality.
"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," he stated.