27th May, 2008.
Code of Conduct Bureau,
Federal Secretariat Complex,
Shehu Shagari Way,
Petition Brought Pursuant To Item 12, Part 1, Fifth Schedule To The Constitution Of Federal Republic Of Nigeria, 1999 Which Prescribes as follows:
‘Any allegation that a public Officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Bureau’
IN THE MATTER OF THE PETITION AGAINST CONTRAVENTIONS OF THE CODE OF CONDUCT FOR PUBLIC OFFICERS
1. HON. TIMOTHEW OWOEYE – ILESA WEST
2. HON. AJIBOYE ADEMOLA – ILA
3. HON. OYEDELE KAMIL TOPE – IREPODUN / OROLU
4. HON. SALAMI NAJEEM F. – EJIGBO
5. HON. BINUYO IPOOLA A. – IFE NORTH
6. HON. AKINTUNDE ADEGBOYE – OSOGBO
7. HON. FAFOWORA A. ABIODUN – ILESA WEST
8. HON. AWOLOLA A. ABIODUN – EGBEDORE
9. HON. SALENSILE R. AYOBAMI – IWO
10. HON. SAMSON FAFIYEBI – OBOKUN
11. HON. AJIBOLA OLAIDE K. – OLORUNDA
HIS EXCELLENCY, PRINCE OLAGUNSOYE OYINLOLA
(The Executive Governor Osun State)
1.1 We are counsel retained by the Petitioners to bring the contravention and/ or non compliance with the provisions of Item 9, Part 1, Fifth Schedule of the Constitution of the Federal Republic, 1999 by the Respondent to the notice of this Code of Conduct Bureau to assist you to investigate and recommend the Respondent for prosecution before the Code of Conduct Tribunal.
1.2 Your Petitioners are the honourable members of the Osun State House of Assembly who were elected under the platform of the Action Congress to represent the state constituencies appearing opposite their respective names. Your petitioners swore to uphold and observe the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
1.3 The Respondent is the incumbent Governor of Osun State, South West Nigeria, who was elected under the platform of the Peoples Democratic Party and who also swore to uphold and observe the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
1.4 This Petition is brought against the Respondent for contravention of Items 9, Part 1, Fifth Schedule to the 1999 Constitution.
2.0 CONTRAVENTIONS UNDERLYING THIS PETITION
2.1 The Respondent directed the payments of public funds into the private accounts of the 26 legislators in the Osun State House of Assembly to execute constituencies’ projects and thereby acted arbitrarily in contravention of the Constitution he swore to uphold and in clear abuse of powers.
2.2 Since the arbitrary acts referred to in Para. 2.1 above will affect the commonwealth i.e. the public funds belonging to the entire people of Osun State; the arbitrary act has affected the rights of the Petitioners to deliver on their electoral promises.
3.0 BACKGROUND FACTS
3.1 As part of the numerous steps to fulfil their electoral promises to their individual constituencies, members of Osun State House of Assembly recently passed resolutions directing the executives to undertake projects in each of the 26 Constituencies in the state (otherwise referred to as “Constituency projects’’).
3.2 It was further agreed that a dedicated consolidated accounts would be opened to allow for an equitable execution of the projects and ensure accountability, sound planning and execution of the projects and rid the projects of vices.
3.3 Rather strangely, on the 9th day of April, 2008, the Government of Osun State, under the leadership of the Respondent, His Excellency, Prince Olagunsoye Oyinlola, directed the payments of the sum of N5Million each into the private accounts of the 26 legislators in the Osun State House of Assembly to enable them use the money to execute projects which they individually desired for their respective constituencies.
3.4 Particularly, the Petitioners informed us that they received credit alerts from their banks showing that their respective bank accounts had been credited with the sum of N5Milllion each by the Osun State Government on the said 9th day of April, 2008. It is however instructive to note that these lodgements were made without obtaining the consent of the Petitioners.
3.5 Convinced that their constitutional duties are broadly limited to law making and performance of the functions of overseeing the activities of other arms of government i.e. the executive and the judiciary, the Petitioners promptly returned the monies paid into their respective bank accounts to the Osun State Government through their letter dated 24-04-08, addressed to the Speaker of the House of Assembly and jointly signed by your Petitioners. They also persuaded their PDP counterparts to follow suit by returning the N5Million of the Osun State Government fund paid into their private accounts but they have refused to do so till date. Photocopies of the letter of 24-04-08, cheques, deposit slips and transfer forms with which Osun State Government paid N5Million into the Petitioners’ private accounts are herein attached as Schedules A to L.
4.0. HOW THE FACTS STATED ABOVE CONSTITUTE CONTRAVENTIONS AND/OR NON- COMPLIANCE WITH THE PROVISIONS OF THE CODE OF CONDUCT FOR PUBLIC OFFICERS
Contravention of Item 9, Part 1, Fifth Schedule
To the 1999 Constitution.
4.1 Item 9 provides that :
‘’a public officer shall not do or direct to be done, in abuse of his office, any arbitrary acts prejudicial to the rights of any other person knowing that such act is unlawful or contrary to any government policy.’’
4.2 We rely on the background facts to urge you to decide that the acts of the Respondents amount to a contravention of the Code of Conduct for Public Officers.
4.3 We submit that Item 9 reproduced above is designed to punish acts which amount to arbitrariness on the part of Public Officers. An act would be arbitrary if done in flagrant disregard of due process and the Constitution.
4.4 By Section 4(7) of the 1999 Constitution, the duties of the members of the House of Assembly of a state is to make laws for the peace, order and good government of the State. Also, while section
5(2)(a) vests the executive powers of a state in the Governor of the state, section 5(2)(b) of the same Constitution states that the executive powers of a state:
“ shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State, and to all matters with respect to which the House of Assembly has for the time being powers to make laws.’’
4.5 As a corollary to the law making powers of the House of Assembly of a state, Section 128 vests the House with oversight functions in the following words:
(1) subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the official Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into-
a.) any matter or thing with respect to which it has power to make laws; and
b.) the conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged with the duty of or responsibility for-
i. executing or administering laws enacted by the House of Assembly; and
ii. disbursing or administering moneys appropriated or to be appropriated by such House.
(2) The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to-
a.) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and
b.) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it. (Underlining ours)
4.6 Part of the law which the House of Assembly is empowered to make is the Appropriation Act. The law making powers of the House of Assembly is so vast that until the House passes the appropriation bill into law, the government’s capacity to spend will be seriously hampered.
4.7 We submit that apart from their duties and responsibilities to make laws, the House of Assembly is empowered to investigate or inquire into the execution of projects and contract awards with a view to achieving the aims of Section 128(2), expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
4.8 Therefore, the conclusion that it is not the duties and/ or responsibilities of the Respondents to execute projects but that of the executives is very apposite.
4.9 Thus, the legislators are not the public officers charged with the responsibilities of executing projects but the executives. The people of Nigeria in general and Osun State, in this case, deserve a government which rule according to the law and not according to whims and caprices. The right of the people to a decent government has therefore been breached. Also, the Petitioners, as well as the Respondent, equally swore to defend the Constitution and deliver on their electoral promises to their constituencies. This arbitrariness therefore amounts to a violation of the conscience of the electorate who placed them in their sacred duty of watching over the executives in their execution of the law and public projects.
4.10 Further, we urge you to consider the fact that the acts of the Respondent make nonsense of Section 128 of the 1999 Constitution which empowers the legislators to investigate and inquire into the execution of projects for which they have appropriated money.
4.11 Given that the Respondent knows or is presumed to know the extent of the constitutional functions of the legislators but went ahead to arbitrarily direct the payments of public funds into their private accounts to execute projects, he has done acts prejudicial to the rights to the petitioners and the people they represent. Since the acts are unconstitutional and arbitrary, we submit that they squarely fall within the ambit of acts punishable under the Code of Conducts for Public Officers.
4.12 As clearly stated in Section 128(2)(b), the essence of the legislative investigation and inquiry is to expose corruption, inefficiency and waste. We contend that what the Respondent has done has hampered or is capable of hampering the duties of the legislators under Section 128 of the Constitution and is tantamount to giving an unbridled license to waste, corruption and inefficiency.
5.0 RELIEFS SOUGHT BY THE PETITIONERS
5.1 In view of the foregoing, we respectfully pray this Code of Conduct Bureau as follows:
5.2 that the allegations of non-compliance and/or contraventions of Items 9, Part 1, Fifth Schedule to the 1999 Constitution brought against the Respondent be investigated by the Code of Conduct Bureau;
5.3 that the Respondent be recommended for prosecution by the Code of Conduct Tribunal pursuant to Item 15(1), Part 1 of the Fifth Schedule to the 1999 Constitution.
5.4 While pledging our co-operation in the investigation and prosecution of the Respondent herein, we urge that you do your part in making our system work, given that the problem of Nigeria is not in the scarcity of laws to sanitise our systems, but rather in the implementation of these laws.
5.5 This petition presents to you another valuable opportunity in history.
TOPE ADEBAYO ESQ