Senator Natasha’s Recall and NJC’S Code of Conduct/Judicial Discipline Regulations

Introduction 

The dramatic on/off attempt to recall the Senator representing Kogi Central Senatorial District in the National Assembly, has focused public attention on that hitherto obscure and seldom used process. While the public has been regaled (if not quite transfixed) with the apparently determined attempt by her supposed constituents to recall her (and her equally robust push-back), the body at the centre of it all – the electoral umpire – has been no less up-to-the-job with its prompt assessments and verdicts (so far, in her favour). 

However, what few observers have noticed (much less commented on), is the legal framework which underpins the entire process – INEC’s Guidelines for Recalling Members of the National and State Houses of Assembly, 2024. I will get to the details shortly, but, it is quite interesting that a similar handicap, in my opinion, afflicts an even more sensitive regulatory document, the NJC’s (National Judiciary Council) Regulations for the Discipline of Judicial Officers. I believe both documents are potentially problematic for the following reasons, starting with that of INEC as aforesaid.

INEC’s Recall Guidelines, 2024

This would-be, sledgehammer, which Senator Natasha’s traducers sought to deploy for her removal is expressed on its face to have been made by INEC pursuant to Sections 69, 110 and 160 of the Constitution, Sections 2(c) and 113 of the Electoral Act, 2022 “and all  other powers enabling it in that behalf”. At its foot (its conclusion), it bears the signature of Professor Mahmood Yakubu, INEC’s Chairman. Therein, in my view, lies the problem. This is because, an enactment which is supposedly made by a multi-member body, cannot validly be endorsed or executed by only one of them – without an express authorisation to that effect. 

The relevant law is Section 27(2) of the Interpretation Act, which provides that where a body established by an enactment comprises three or more persons and is empowered to make subsidiary instruments, for any such instrument to be valid, it should be “executed under the hand of any two of the members thereof as may be authorised by such body generally for that purpose or specially or any particular occasion”.

Now, by virtue of Paragraph 14(1) of the Third Schedule to the 1999 Constitution, INEC consists of a Chairman and 12 members (called “National Electoral Commissioners”). Section 148 of the Electoral Act 2022 empowers INEC to make regulations, guidelines or manuals for the purpose of giving effect to the Act. Even though Section 147 of the Act empowers the Commission to delegate “any of its powers and functions to any National Electoral Commissioner, Resident Electoral Commissioner, electoral officer, or any other officer of the Commission, or any other officer appointed under the provisions of (the) Act,” curiously, not only are the Guidelines themselves not expressed to have been made pursuant to the aforesaid provisions of Section 148 of the Electoral Act, more importantly, they are silent on any delegation of the power to enact them by the Commission to its Chairman, as contemplated by Section 147 of the Electoral Act. 

I believe the implication of this defect is glaring: the Recall Guidelines are ultra vires the sole executor thereof, INEC’s Chairman, because by virtue of the aforesaid combined provisions of Section 27(2) of the Interpretation Act and Paragraph 14(b) of the Third Schedule to the Constitution, they should have borne the imprimatur (been “executed under the hand”) of at least two of INEC’s Commissioners or officers. This ought to put paid to Senator Natasha’s entire recall saga, shaming her traducers and forcing INEC to go back to the drawing-board. This remains to be seen, of course, as the redoubtable Senator has proved to be an Amazon of sorts. The law might yet hand her a technical victory – seemingly without firing a shot.

NJC’s Judicial Discipline Regulations 2017

This document appears to be even more problematic than INEC’s Guidelines. How is that so? This is because, even though the Regulations were expressly made by the NJC on the 9th day of March, 2017, there is nothing on their face to indicate that they were executed by any officer of that distinguished body of Jurists – not even the Honourable Chief Justice of Nigeria who is its head under the Constitution (vide Paragraph 20(1) of the 3rd Schedule thereof). By virtue of the same provision, the NJC consists of 23 members.

Needless to say, the same provisions of the Interpretation Act (Section 27(2)) prescribe that the NJC Regulations ought to bear the imprimatur of at least two of its members. It’s failure in this regard, with the greatest respect, is even worse, because I am not aware of any provision – similar to those of Section 147 of the Electoral Act, 2022 – which empowers the Council to delegate any, some or all its  powers (especially of enacting subsidiary instruments such as the Regulations) to any of its members (presumably the Hon. CJN). This lacuna is too obvious to be over-emphasised – much less overlooked. It should be addressed.

Beyond the foregoing structural defect, however, a fundamentally more worrisome aspect of the NJC Regulations, in my view, are the provisions of Regulation 21(3) thereof which stipulate that the rules of evidence do not apply to the Investigating Committee’s hearings. This provision is curious, to say the least, given that the Regulations are meant to guide an investigation into judicial misconduct – to probe allegations of ethical malfeasance against judicial officers who, by their very calling, are trained to apply (and have been applying virtually throughout their entire careers) the rules of evidence codified in the Evidence Act, 2011. 

I believe that, this provision is problematic because, by virtue of the provisions of Item 23 of the Exclusive Legislative List of the Constitution, only the National Assembly is competent to legislate on evidence. That being the case, I believe that the broader question is whether the other evidence-related provisions of the NJC’s said Regulations – namely Regulation 21(2), (4), (5), (7) and (8) might legitimately come under scrutiny. They stipulate as follows:-

– (2): “All testimony taken at the hearing shall be given under oath or affirmation and recorded”;

– (4): “The complainant shall be given an opportunity to produce evidence and call witnesses”;

– (5): “At any hearing of the Investigating Committee, the subject Judge has the right to present evidence, to compel the attendance of witnesses and to compel the production of witnesses and to cross examine, in person or by Counsel, Committee Witness”;

– (7): “The Investigating Committee may take oral evidence if it considers it necessary to do so”;

– (8): “The Investigating Committee must arrange for any evidence given orally to be recorded in a transcript or by electronic recording”.

The significance of the foregoing is underscored by the fact that the NJC is not one of the bodies which are specifically excluded from the application of the Evidence Act, 2011, under the provisions of Section 256 thereof. The maxim is expresso unius est exclusio alterius: the express mention of a thing in a statute, implies the exclusion of others which otherwise might be included. See P.H.C.S. LTD v MIGFO LTD. (2012) All FWLR Pt. 642 Pg. 1615. 

I believe the foregoing view is buttressed by Item 68 of the Exclusive Legislative List of the Constitution, which stipulates that the power of the National Assembly to legislate on the substantive subject-matters of the preceding Items (1-67) in that List includes “any matter incidental or supplementary to any matter mentioned elsewhere in (the) List”.

Yet another interesting issue, is the Code of Conduct for Judicial Officers 2016. Is the fact that they appear to be co-extensive with the Code of Conduct for Public Officers under the Constitution in the Fifth Schedule thereof, anomalous in any way?. Has the Constitution covered the field, or can the more detailed and specific provisions of the latter co-exist with it? Is enacting a Code of Conduct for Judicial Officers among the powers donated to the NJC under Paragraph 21 of the Third Schedule to the Constitution? That is the question.

This issue is somewhat topical, given the ongoing story about the propriety of the membership of an Abuja Golf Club by the President of the Court of Appeal. I however, see nothing wrong with it, given the provisions of Rule 9.3 of the said Code of Conduct for Judicial Officers 2016 which expressly permits judicial officers to join sporting organisations. I doubt if the Code of Conduct for Public Officers under the Constitution, bans such engagements. So, she is on sure footing.

The question still remains, however, that the non-endorsement of the foregoing vital regulatory instruments (including the Code of Conduct for Judicial Officers) in the manner required by the Interpretation Act might make them vulnerable to challenge by ambitious (if not desperate) Counsel and litigants, who might fall back on such complaints in the absence of more fundamental objections or defences. 

THOUGHT FOR THE WEEK

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner”. (Montesquieu)