The definition of public officers for the purpose of the constitutional Code of Conduct is all encompassing, starting from the President of Nigeria of the Federal Republic to the cleaner in a local government office. Section 172 of the Constitution states that: “A person in the public service of the Federation shall observe and conform to the Code of Conduct”.
It is pertinent to recall the position of Andrews Otutu Obaseki J.S.C (P.37, paras. C-D) in Eperokun & Ors v University of Lagos (1986) LPELR-1150 SC that: “The breach of the provisions of the Code of Conduct does not automatically deprive a person of his status as a public officer. The allegation of a breach of the Code must be founded on the premises that the officer is a public officer in full employment. A non-public officer cannot commit an offence under the Code of Conduct”.
The list of public officers is as stated in Fifth Schedule, Part II of the Constitution. It is as follows: The President of the Federation, the Vice-President of the Federation, the President and Deputy President of the Senate, Speaker and Deputy Speaker of the House of Representatives and Speakers and Deputy Speakers of Houses of Assembly of States, and all members and staff of legislative houses, Governors and Deputy Governors of States, Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of courts of law. Others are Attorney-General of the Federation and Attorney-General of each State, Ministers of the Government of the Federation and Commissioners of the Governments of the States, Chief of Defence Staff, Chief of Army Staff, Chief of Naval Staff, Chief of Air Staff and all members of the armed forces of the Federation, Inspector-General of Police, Deputy Inspector-General of Police and all members of the Nigeria Police Force and other government security agencies established by law and Secretary to the Government of the Federation, Head of the Civil Service, Permanent Secretaries, Directors Generals and all other persons in the civil service of the Federation or of the State.
Furthermore, the list includes Ambassadors, High Commissioners and other officers of Nigeria Missions abroad, Chairman, members and staff of the Code of Conduct Bureau and Code of Conduct Tribunal, Chairman, members and staff of local government councils, Chairman and members of the Boards or other governing bodies and staff of statutory corporations and of companies in which the Federal or State Governments have controlling interest, all staff of universities, colleges and institutions owned and financed by the Federal or State Governments or local government councils and Chairman, members and staff of permanent commissions or councils appointed on full time basis.
Essentially, it covers all persons on the payroll of the federal, state and local governments. Informed estimates indicate that the number will not be less than five million Nigerians. The implication of this broad list of declarants is that the Bureau will require a lot of resources to be able to achieve its mandate. However, by S.18 (1) of the Code of Conduct Bureau and Tribunal Act (CCBTA): “The President may by order exempt any cadre of public officers from the provisions of this Act if it appears to him that their position in the public service is below the rank which it considers appropriate for the application of those provisions”.
But the provisions of a mere Act of the National Assembly cannot override the clear and unequivocal provisions of the Constitution. This position is founded on S.1 (3) of the Constitution: “If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”. This provision of CCBTA is understandable considering that the law was made as a decree during the days of military dictatorship. It was made as Decree No.1 of 1989 with a commencement date of January 1 1991. Otherwise, this provision should have been used by the Code of Conduct Bureau (Bureau) to make recommendations to the President to exempt very low cadre officers whose schedule of duties do not involve managerial and decision making in finance, procurements, tax inspection, customs, etc.
By paragraph 14 (b) of the constitutional Code of Conduct: “The National Assembly may by law exempt any cadre of public officers from the provisions of paragraphs 4 and 11 of this Code if it appears to it that their position in the public service is below the rank which it considers appropriate for the applications of those provisions”. However, the National Assembly is yet to activate this exemption, especially for paragraph 11 of the Code, by enacting a law that will remove the obligation of asset declaration from very low ranking and junior officers who have no access to state resources or its management or the exercise of discretion in relation to state finances. It is submitted that a primary school teacher in a remote rural neighbourhood, a cleaner in a local government or support officer in a rural primary health care centre may not be ideal candidates for continued declaration of assets and liabilities. The National Assembly should consider amending the laws to exempt them from this obligation.
The broad all-inclusive definition of officers bound to declare their assets seems not to be targeted, appears not to have been guided by any clear criteria and guidelines or comparative experience or the public prominent function of identifying politically exposed persons (PEPs). In seeking to be all inclusive, the law loses focus from the key issue of grand corruption and high- level conflict of interest transactions. Petty corruption issues could have been taken care of by the general criminal law and other laws and policies such as the enabling laws of the Economic and Financial Crimes Commission and the Independent Corrupt Practices and Other Related Offences Commission. The evidence emerging from the all-inclusive definition is that the effectiveness of the system is compromised because the system is unable to deliver the expected policy goals and results. The Bureau is overwhelmed by the number of officials obliged to declare assets and the paucity of human, financial, technological, etc. resources to implement its mandate.
The definition of public officers for the purpose of declaration of assets and liabilities is a deviation from what is obtainable in some other jurisdictions. For instance, in Argentina, the category of officials bound to declare their assets is based on dual criteria: “(1) Public officials obligated because of their position (that is, president, ministers, and so forth), and (2) public officials obligated because of their function (that is, those who grant permits, those who are responsible for administrating public or private assets or for controlling or supervising public revenues, and those who are members of commissions that oversee the issue of tenders or the purchase or receipt of assets”.
The criteria for identifying officials bound to declare assets could include: “Risk of corruption; identifying filers based upon their role and the risk they could become involved in corrupt activity, which requires a prior assessment of the most common forms of corruption in the country (building licenses, infrastructure contracts, customs and so on). Classification as a politically exposed person; identifying and including filers who are classified as PEPs on the anti-money laundering and combatting terrorism laws of the country”.
Further, assessing risks and applying a risk-based approach to defining declarants can follow this guideline adapted from the Financial Action Taskforce Recommendations of 2012 as updated in June 2019; Recommendation 1 on Policies and Coordination states that: “Countries should identify, assess, and understand the corruption and conflict of interest risks for the country, and should take action, including designating an authority or mechanism to coordinate actions to assess risks, and apply resources, aimed at ensuring the risks are mitigated effectively. Based on that assessment, countries should apply a risk-based approach (RBA) to ensure that measures to prevent corruption, conflict of interest are commensurate with the risks identified. This approach should be an essential foundation to efficient allocation of resources across the assets and liabilities disclosure regime and the implementation of risk-based measures. Where countries identify higher risks, they should ensure that their assets and liabilities declaration framework regime adequately addresses such risks. Where countries identify lower risks, they may decide to allow simplified measures for engaging corruption and conflict of interest”.
There is an emerging body of empirical evidence on defining who should be bound to declare assets and liabilities. In Honduras, the law requires most public officials to submit disclosures, but it also sets a salary threshold of US$890) below which officials need not submit a disclosure, narrowing the range of filers. In Japan, the law requires members of the Diet (Parliament) and “officials at the rank of deputy director general or higher at the headquarters” to submit disclosures. In addition, some asset disclosure systems might single out officials perceived to be a higher risk of corruption (for example, within a certain grade of public service, requiring disclosure only by the officials who deal with financial resources, procurement, accounting, human resources and the like). In Mozambique, for example, only officials with decision power in the administration, a public entity, or a state-run corporation are required to file disclosures. Other disclosure systems might subject the more prominent officials to different regulations (requiring more detailed forms, verification of disclosures, more frequent disclosure, the inclusion of family members, public availability of declarations and the like).
The 1999 Constitution also requires declarants to declare the assets of their unmarried children under the age of eighteen years. The interpretative paragraph 19 of the Fifth Schedule to the Constitution defines a child as follows: “Child” includes a step-child, a lawfully adopted child, a child born out of wedlock and any child to whom any individual stands in place of a parent”.
The asset declaration forms in accordance with the provisions of the CCBTA requires public officers to also declare the assets of their spouse(s). This recognises the available marriage forms and variations in Nigeria. Thus, assets of the monogamous spouse under the Marriage Act and the polygamous spouses under Islamic or Customary law are to be declared. However, Nigerian law is silent on other family members apart from children under eighteen years and spouses. Some other jurisdictions like Uganda require information on all children and dependents. Other jurisdictions like Bosnia and Herzegovina go as far as parents, siblings, spouse parents and adoptive parents.
On the other hand, Nigerian law excludes senior officials of political parties from the asset declaration regime. But these officials, especially from the ruling party cannot escape the definition of being politically exposed persons whose assets and liabilities should be of interest to the public from the point of view of preventing corruption, conflict of interest and illicit enrichment. Thus, public officers and politically exposed persons may not have the same definitions.
But there is need for proper oversight of the assets and liabilities of both categories. PEPs have been defined as: “Foreign PEPs are individuals who are or have been entrusted with prominent public functions by a foreign country, for example Heads of State or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, important political party officials. Domestic PEPs are individuals who are or have been entrusted domestically with prominent public functions, for example Heads of State or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, important political party officials”.
PEPs also include: “Persons who are or have been entrusted with a prominent function by an international organisation – refers to members of senior management, i.e. directors, deputy directors and members of the board or equivalent functions. The definition of PEPs is not intended to cover middle ranking or more junior individuals in the foregoing categories”.
In conclusion, it is imperative to reduce the number of declarants and make the number more manageable. We should use the criteria of public officers obligated because of their positions and public officers obligated because of their function. Also, all politically exposed persons, whether categorized as public officers or not should be bound to declare their assets. This will make the assets and liabilities declaration system more efficient, functional and effective. If this proposal is not acceptable to the authorities, then adequate and increased resources should be made available to the Bureau for the effective discharge of its functions.
Onyekpere is the Lead Director, Centre for Social Change (CSJ).
