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BY: R. F. DIETE-SPIFF ESQ

INTRODUCTION

The Babajide Sanwo-Olu led government of Lagos State has indicated interest in the establishment of an Anti-corruption Commission in the state. This move is as a result of the need to deepen the culture of accountability and transparency in the expenditure of appropriated funds. The Bill is termed the Public Complaints and Anti–Corruption Bill of 2021. The Bill is set to empower state actors to investigate and prosecute officials of the State Government and registered contractors who are indicted for economic crimes and financial misappropriation. The Bill when passed into law would not only seek to ensure accountability for public funds, responsibility in public office, but also promote dialogue amongst public officers to keep the trust of the people in the discharge of their duties in line with transparency. The Anti-Corruption Commission Agency sought to be established is akin to Economic and Financial Crimes Commission (EFCC) which is a federal government agency created to prosecute those who misappropriate public funds.

BACKGROUND

The Public Complaints and Anti–Corruption Commission Bill seeks to address issues relating to public complaints bordering on accountability of pubic officers in the state by the proposed Commission, mediating in disputes between citizens inter se and between the citizens and the government especially regarding administrative procedures that can lead to injustice.

Sections 14 (2) of the Bill states that the Commission shall be responsible for:

1. Enforcement and due administration of the provision of this law
2. Investigation of all financial crimes and anti-corruption cases in the state
3. Coordination and enforcement of all anti-corruption and financial crime law and enforcement functions conferred on any other person or authority with regards to the finances and assets of the state government.
4. Adoption and enforcement of measures to ensure transparency in the management of resources of the state government.
5. Adoption of measures to identify, trace, freeze, confiscate, or seize proceeds derived from acts of corruption and financial crimes related offences or properties, the value of which correspond to such proceeds.

By virtue of Section 13 (3) of the Bill, “the commission shall upon commencement of this law take over the investigation of all anti–corruption and financial crime cases involving the finances and assets of Lagos State Government being investigated by any other agency.”

Section 13 (5) further states that the Commission shall have the power to the exclusion of any other agency or body to investigate and coordinate the investigation of corruption and financial crimes cases involving the finances and assets of the state government.

The Bill empowers the Commission to investigate anyone who cannot explain his/her source of income, corruption in relation to cybercrime, fake news, interception of emails and fraudulent dealing with property debtors.

It has been argued in some quarters that the law is aimed at shielding former governors of Lagos State who are currently investigated by the Economic and Financial Crimes Commission (EFCC). It appears that the Bill was proposed as a result of the ongoing investigation of three former Governors of Lagos state in the persons of messrs Bola Ahmed Tinubu, Babatunde Raji Fashola and Akinwumi Ambode by the Economic and Financial Crimes Commission (EFCC). The EFCC is currently investigating petitions against Tinubu who is alleged to have enriched himself by diverting tax meant for the state to the tune of N 100bn, while Ambode is been probed for embezzling N 9.9 billion of Lagos State funds. On the other hand, Mr. Obasa who is the Speaker of the House has his accounts frozen by the EFCC while it investigates the allegation of mismanagement of public funds against him. The EFCC, by this law, may be barred from investigating pending cases before the House of Assembly. The enactment of such a law and it being a replica of an already existing Acts of the National Assembly, to wit, the Economic and Financial Crimes Commission Act (ICPC) 2004 and the Independent Corrupt Practices Commission Act 2005 whether such would amount to a breach of the constitutional doctrine of covering the field in legislative actions. Although opponents of the new law say it should operate side by side with federal laws on the subject owing to the fact that the Lagos State House of Assembly have sought to exclude EFCC and ICPC from carrying out investigation and prosecution of cases on corruption and economic crimes regarding the assets and finances of the state. This leads us to whether or not the state legislature can make a law on a matter wherein exists an Act of the National Assembly. In the case of A.G. Ondo State v. A.G Federation (2002) 9 NWLR (PT. 772) 222, the Supreme Court held that both the federal and state Governments can enact laws to abolish corruption in line with Sections 4, 15(5), 318, item 60 (a), 67 and 68 in Part 1 of the Second Schedule and Section 2(a) of Part 111of the Second Schedule of the 1999 Constitution (as amended).       

The doctrine of covering the field is one of the important doctrines that touches on the enactment of laws in a federal state. The 1999 Constitution of the Federal Republic of Nigeria gives power to the federal government on matters which are called “residual .” The Constitution makes provision for two lists under which the legislative powers of the federation are exercisable which, to wit, the Exclusive legislative list and Concurrent Legislative lists. The practice of including an Exclusive Legislative and Concurrent Legislative Lists in Nigerian Constitutions began with the 1954 Constitution.“Any state legislation which conflicts with any commonwealth Act on any matter in respect of which both the commonwealth and the state are empowered to make laws.” This is what is now popularly known as the “doctrine of covering the field”.

The doctrine of covering the field applies in two distinct forms. First, where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the Constitution has already made provisions concerning the subject matter of the Federal Act or State law.

Secondly, where a state House of Assembly, by a purported exercise of its legislative powers enacts a law which an Act of the National Assembly has already made provisions covering the subject matter of the State law. In both situations, the doctrine of covering the field will apply because of “federal might”.

Constitutionally, both the federal and state government can validly make laws on matters enumerated in the concurrent legislative list. However, where the federal government enacts a law which expressly or impliedly covers the whole gamut of a subject matter contained in the concurrent legislative list, the state cannot enact its own law to co-exist with the federal law on the same subject matter. The doctrine of covering the field also extends to any inconsistency that may arise between an Act of the National Assembly or a law of the House of Assembly of a State and any of the provisions of the Constitution. Thus, where the Constitution has provided expressly or impliedly exhaustively on any subject matter, neither the National Assembly nor the House of Assembly of a state can validly legislate on the same subject matter.

Although, the Constitution does not state that an Act of the National Assembly cannot duplicate the provisions of the Constitution, by judicial interpretation, verging on policy, the consequence of such duplication has been variously described as “imperative“, “in abeyance“, “suspended“. However it is described, where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of law on the subject.

The Constitution would not have “covered the field” where it has been expressly reserved to the National Assembly or other legislative body the power to expand or to add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it derived its power to legislate in addition to what the Constitution had enacted.

In our view, the doctrine of covering the view is a very important legislative doctrine because it helps to forestall a situation where there will be two conflicting laws on the same subject matter at two levels of government. The doctrine of covering the field simply means that where there is a conflict between the legislation of a State and the federal parliament on a matter in the concurrent legislative list, an inconsistency arises; and as between the two laws so enacted, the one passed by the federal parliament prevails and that of the State is rendered inoperative during the lifetime of the federal law. The National Assembly and the States’ Houses of Assembly by virtue of Sections 4(2) and Sections 4(7) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) have been respectively given the power to make laws for the peace, order, and good government of the federation and the states.

By virtue of Section 4(5) of the Constitution Federal Republic of Nigeria 1999 (as amended), if any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void.” It is a no-brainer for one to spot the “dots of similarity” that one might not be far from the truth if one asserts that the provision was lifted and placed in the Nigerian

The Constitution of the Federal Republic of Nigeria 1999 by virtue of section 4(3) grants the National Assembly exclusive access to legislate on the Exclusive Legislative list contained in part 1 of the Second Schedule to the Constitution. Further, the Constitution grants power to the Houses of Assembly and the National Assembly to legislate together on the Concurrent Legislative list as contained in part 2 of the Second Schedule to the 1999 Constitution. This assertion finds its’ backing in section 4 (4) (a) and section 7 (b) of the 1999 Constitution of the Federal Republic of Nigeria. Hence, the Constitution has given the both the power to legislate on this area together.

As far as these two legislative houses exercise legislative competence in the same area, it is common sense to know that there is bound to be conflicts. Such conflicts will arise when laws by the respective legislatures are enacted to govern the same subject. However, the prescience to this must have led to the provision of section 4(5) of the 1999 Constitution of the Federal Republic of Nigeria.

It must be noted that the “Invalidity of a State law” does not mean that the State law is invalid in the positivist sense that the State Parliament lacks power to pass it. The State law, though enacted with procedural validity, merely ceases to have operative force. In fact, there can only be a conflict of laws in this sense when both laws were validly passed by their respective arms. A Bill which does not comply with the process to get it passed cannot become a law.

The doctrine of “covering the field” also played out in the case of A.G Ogun State v. A.G Federation (1982) 1-2 S.C. (REPRINT) 7 where the Supreme Court per Fatayi-Williams declared that the Public Order Act 1979 repealed all states existing laws on public orders.

Furthermore, it is not always the case that at any time a federal and a state law exist on the same subject, the doctrine applies. There must be an intention in the federal law to completely and exhaustively cover the field and not merely ‘supplementary to or cumulative upon state law’ – Dixon J, in Ex Parte Mcclean [1930] HCA 12, 43 CLR 472, 482.

EXTENSION OF THE DOCTRINE OF COVERING THE FIELD

The doctrine has equally being extended and applied where enactm ents from either the National Assembly or the House of Assembly extends or qualifies the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

This position was reiterated in the case of Saraki v. FRN (2016) LPELR-40013(SC) where the Supreme Court held that, “Where the doctrine of covering the field is in vogue in the Constitution any other legislation on the same field whether by the federal/state governments must bow to the dictate of the Constitution. That other law/legislation, if not repugnant must be supplemental or subsidiary to the constitutional provision.”

The doctrine of covering the field in Section 1(3) of the Constitution Federal Republic of Nigeria 1999 (as amended) which states that, “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void. Olayinka Ayoola, JSC, in the case of INEC v. Balarabe Musa (2003) 3 NWLR (Pt.806) 72, held that, “Where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted.”

If a law made by a State House of Assembly seeks to extend the provisions of a law made by the National Assembly, the House of Assembly law shall be void. This principle of law was applied in the case of Nwangwu v. Ukachukwu & Anor (2000) LPELR-6913(CA), where the Court of Appeal gave effect to the principle when it stated that, “Any state legislation which seeks to confer jurisdiction on the State High Court as does the Anambra State High Court Law would be in conflict with the provision of Section 41 of the Land Use Act 1978. The legislation rather than gave effect to Section 41 of the Act would extend the section. By the doctrine of covering the field, Section 41 of the Land Use Act 1978 will be made to prevail over the provision of such a state legislation.

Both the federal and state governments can legislate on matters in the Concurrent Legislative List, with the proviso that the federal legislation (Acts) prevails in case of any conflict. Such Acts may also sometimes “cover the field”, thereby rendering provisions of State legislation (Law), to be surplusage or excess to requirements. The Residual Legislative List covers matters over which only the State Houses of Assembly can legislate, including authorizations for the Local Government to make laws (Bye-Laws).

Section 4(5) 1999 Constitution provides that: “If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly the law made by the National Assembly shall prevail, and that other law shall, to the extent of the inconsistency be void.” Where the National Assembly’s Acts cover areas constitutionally reserved for the State Houses of Assembly, the former would become inconsistent and thus null and void. It is a trite rule of federalism that the federal government does not exercise superior authority over state governments – each must operate within its sphere.

Speaking on the said Bill, a Senior Advocate of Nigeria, Chief Mike Ozekhome stated that the Constitution gives the right to make such laws and reiterated that since the State Houses of Assembly can make laws with regards to taxation and other issues, the said law is valid as it has powers to protect diversion of funds. Therefore, the law to be enacted by the Lagos State House of Assembly with regards to financial crime is valid and in line with Section 4 of the Constitution and the Second Schedule part 1 & 2 of the Exclusive and Concurrent legislative list. Every state must have the power to investigate financial fraud done by the present or past government, as such money belongs to the state government. Thus, if the money in question is stolen from the state treasury the agency has the power to investigate.

A Federal High Court sitting in Ado Ekiti has ruled that the EFCC does not have the power to investigate finances of a state without a report of indictment from the legislature. The Court held that the State House of Assembly and the Auditor-General of a state have the legal power to investigate the finances of the state. It was further held by the Court that the state lacked the power to, by virtue of Sections 128 and 129 of the Constitution of the Federal Republic of Nigeria (as amended), to initiate criminal proceedings against a state official and this is as a result of Sections 4, 5, and 6 of the Constitution of the Federal Republic of Nigeria (as amended) which provides for separation of . In other words, the power of control of funds is vested in the State House of Assembly.

CONCLUSION

There is no doubt all States Houses of Assembly have the power to enact Laws. However, it is mandatory that such laws should not be inconsistent with any Act validly made by the National Assembly. Given our legislative jurisprudence in Nigeria, such laws cannot operate as the EFCC and ICPC have already covered the field and such law will only end up shielding erring state officers from been investigated and prosecuted. 

NOTES

Nigeria: Tussles: A Review Of Attorney General Of Lagos State V. Eko Hotels & Anor (2018) 36 TLRN1, Afolabi Elebiju, 17 June 2020

The Octopus News Admin, States’ anti-corruption law a progressive step, lawyers, civil society speak, April 26, 2021