THE USE OF WHITE PAPER BY QUASI JUDICIAL BODIES
INTRODUCTION
We followed the investigation of financial improprieties allegedly carried out by the Dr Fayemi-led administration in Ekiti State with interest.
The subsequent release of a White Paper piqued our interest in what seemed like a political saga from a long-drawn movie. The Judicial Commission made recommendations, and the Ekiti Government “acted” on those recommendations to bar the erstwhile governor and his Commissioner for Finance from holding public office for ten years.
However, the executive arm makes such pronouncements based on a white paper and not a court judgement?
THE WHITE PAPER
Like most of our legal processes, the use of White Paper is an innovation borrowed from the more entrenched English governmental process.
It is beyond argument that the government uses the white paper/command paper to communicate information, recommendations or decisions that such institution may want to draw to the attention of arms of government to address.
Nigeria is not new to the concept and is used to communicate decisions, recommendations, reports of a Committee of Inquiry or even form government office. The White Paper on the Commission of Inquiry into the Alienation of Federal Government Landed Properties created the Presidential Implementation Committee (P.I.C.) under the Federal Ministry of Lands, Housing and Urban Development for the Alienation of Federal Government Landed Properties without recourse to the legislature or legislation.
It is important to note that White Papers do not have any legal weight and do not become law by themselves but are a foundation upon which laws are drafted, deliberated and passed. It is upon this background that the P.I.C. cannot sue in that name. Litigants can only sue them through the Federal Government because they are a product of a White Paper.
THE EKITI SITUATION
The White Paper released on the 15th day of January 2018 by the Ekiti State Government made a pronouncement barring Dr Kayode Fayemi and Mr Dipo Kolawole [the Respondents] from holding any office validly elected officeholders or as political appointees within the State. It is without question that the Respondents, like every Nigerian citizen, can validly contest for any office in Ekiti or as it relates to the State once he can satisfy that: (1) He is a Nigerian Citizen (2) He has attained the age of 30 years (3) He has a minimum of the Senior Secondary Certificate or equivalent; (4) He is a member and is sponsored by a political party. Similarly, the Constitution also provides for the disqualification of a person from holding specific offices in a state. Interestingly, section 182(1)(i) provides that a governorship candidate indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel or a Tribunal set up under a Tribunal of Inquiry Act or Law as the case may be, such a person cannot contest or hold office. The Ekiti White Paper indicted the Respondents for the mismanagement of state funds from 2010 to 2014. While the paper did not use the words, ‘Embezzlement or Fraud, the White Paper still penalized both Respondents to a 10-year hiatus from holding political office within and outside the State.
While the paper did not use the words, ‘Embezzlement or Fraud, the White Paper still penalized both Respondents to a 10-year hiatus from holding political office within and outside the State. Any State Government has the power to set up a Commission of Inquiry to look into any anomaly it sees fit as provided in the Constitution. Section 2(1) of the Commission of Inquiry Law Cap C10 of Ekiti State further empowers the Ekiti State Government to perform that function. However, it is also unclear whether the State found the Respondents culpable for embezzlement or fraud regarding the state fund in question. Nevertheless, the place for issuing penalties for alleged criminal activities and the nature of the sentences to be given is not within the purview of the executive through a White Paper. Instead, it is the constitutionally provided power of the Judiciary of that State to do the same. We conclude that the penalty and its nature offends the Constitution related to the doctrine of separation of powers.
OUR SUBMISSION
As stated earlier, a White Paper does not carry any legal weight in law. They are tools for communicating government information and policies to the legislature and the public. It is essential to state that the same White Paper rejected the Commission’s recommendation on the mismanaged N2.75 billion allocated for a project. However, the white paper directed the Ministry of Justice to recover funds from Respondents, thus making any action a civil one, at best. The direction also takes the matter from the realm of the criminal indictment of embezzlement or fraud to a conflicted debt recovery matter.
This action of the Ekiti State Government might have usurped the Judiciary’s role in penalizing the Respondents, thereby creating a quandary for the propriety of the Judiciary in such a process. The Court remains the final destination to decide the legality of the White Paper to bar the Respondents and to pronounce on whether they can be disqualified under section 182(1)(i) of the Constitution viz-a-viz the reasoning of the Ekiti State Government.
We submit that section 182(1)(i) of the Constitution is expunged or amended to properly provide a clear path to the much more independent Judiciary free from political undertone and melodrama.