The travails of the Senate President continue to intrigue me, it’s not personal. For what its worth, I find him rather interesting but that’s neither here nor there. The trial excites me because it’s being conducted open and it signals the government seriousness in ensuring erring officials are prosecuted.
At the heart of his case are CCB charges which border on anticipatory and false declaration of assets i.e. he declared the assets before he owned them, he didn’t declare assets that he did owned (there are charges that also that he declared assets in his second term which his salary as a governor doesn’t justify etc).
The crux of Saraki’s defence, which was obvious on his first day at the Code of Conduct Tribunal (CCT) was that ‘the Code of Conduct Bureau (CCB) should have invited him to explain the discrepancies on his asset declaration for before charges were laid‘. This concerns section 3 (d) of the Code of Conduct and Tribunal Act;
3. Functions of the Bureau The functions of the Bureau shall be to‐ (a) receive assets declarations by public officers in accordance with the provisions of this Act;
(b) examine the assets declarations and ensure that they comply with the requirements of this Act and of any law for the time being in force;
(c) take and retain custody of such assets declarations; and
(d) receive complaints about non‐compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act:
Provided that where the person concerned makes a written admission of such breach or non‐ compliance, no reference to the Tribunal shall be necessary
This contention has been supported by several well regarded lawyers and most importantly, by the precedent set by the CCT itself in case the of Bola Ahmed Tinubu (BAT) where it held;
1.Contrary to the rules of the Code of Conduct Bureau, the CCB had not afforded Asiwaju Tinubu an opportunity to be confronted with the complaints against him and be allowed to admit or deny before the charges were filed against him. The court noted that the opportunity to admit or deny was given to other Governors and public officers charged with violation of the code of conduct, but was not given to Asiwaju Bola Tinubu.
2.That the prosecution abused the process of court by not seeking leave of the Tribunal to file two additional counts and that the filing of two sets of charges simultaneously constitutes an abuse of process.
3.The charge did not disclose a prima facie case against the accused person as there was no proof of evidence attached to the charge, and that the charges did not show that the accounts were held by the accused persons, in fact the names were names of other persons.
As one can see with reason 1, Saraki’s defence is predicated on terra firma, right?
Now, there are all sorts of innuendos as to why the CCT discharged the case against BAT, I don’t care to examine those, just like I’ll give no dice to the rumours explaining Saraki’s current predicament. What do we know for sure are the facts as stated above.
Let me just say, without the full facts of the CCB’s case against BAT that reasons 2 & 3 seem like plausible grounds for dismissal. Now, let us look at reason 1. The law requires all public officers to complete an Assets Declaration From and (this is the really important bit) to; see line 6 of the below:The declarant is required to swear to the veracity of the information on the form, BEFORE its submission, right? An affidavit. What is the definition of an affidavit?
An affidavit is a written statement, which is sworn under oath (a religious pledge) or affirmation (a non-religious commitment) by a person authorised to do so by law. Essentially, it is a formal declaration to the effect that the contents of a particular statement are true.
What does the Nigeria law say about the admissibility of affidavits re trials? Well, the Evidence Act holds that;
All this is in essence; the Asset Declaration Form (ADF) is in and of itself evidence admissible in court, having sworn to the truthfulness of the information contained on it, the declarant cannot reasonable expect the CCB to refer to him again in the course of its investigations or verification of the ‘truth’ contained on that form. That is to say, the CCT erred in finding for BAT with reason 1 and Bukola Saraki himself is mistaken in believing that reason 1 is grounds for an appeal for dismissal of his case.
Let quickly examine Section 3(d) of the CCB&T Act though;
“(d) receive complaints about non‐compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act:
Provided that where the person concerned makes a written admission of such breach or non‐ compliance, no reference to the Tribunal shall be necessary.”
This section is essentially concerned with where the information presented to the CCB does not emanate from the declarant, essentially, he has to be given a chance to respond to those claims AND if he admits his guilt, there ends the matter. So, the ‘Tomatoes Association of Gbosere’ (TAG) discovers that Saraki holds a farm in Gbosere and they send a notice to the CCB informing them of this fact; the CCB should inform the declarant of this and he’s within his right to acknowledge that he failed to declare the farm and the matter is dropped.
(this actually helps the defendant in theory, if, for example, Saraki had been informed, say through unofficial means, of the investigation, he could have organised that the parts of his charges which concern failure to declare were brought to the CCB’s notice, which then would have necessitated the CCB to write to him.)
The caveat which forms the latter half of 3(d) is deliberately reductive, so as to limit its application to (d).
We’ll never know why the court chose the erroneous definition of section 3(d) in BAT’s case, but it behooves it to correct itself this time. It goes without saying that the interpretation of the law shouldn’t depend on presidential whim and the deliberation misapplication of provisions within the law makes an honest process that much more suspicious.
The aim here isn’t to examine Saraki’s guilt or innocence, only to challenge this claim that’s been making the rounds using Section 3(d) as its bedrock.