Govt asks court to remove Dariye
From Emmanuel Onwubiko, Abuja and Isa Abdulsalami, Jos
IF the Federal Government has its way, the suspended Plateau State governor, Chief Joshua Chibi Dariye, will not return to his seat, going by the proceedings at the Federal High Court, Abuja, yesterday.
The government asked Justice Steve Jonah Adah to compel Chief Dariye to vacate office on the premise that the suspended governor is in breach of the statutory provisions that prohibit Nigerian public office holders from owning or operating foreign accounts.
The government's plea came on a day the state's first civilian governor and former National Chairman of the ruling Peoples' Democratic Party (PDP), Chief Solomon Daushep Lar, thanked President Olusegun Obasanjo for agreeing to end the emergency rule in the state.
Dariye was on September 2 quizzed in London for having in his possession 80,000 pounds and two million pounds in an account. The Code of Conduct Tribunal has since begun moves to prosecute the governor, who was suspended on May 18 by President Obasanjo over a spiral of violence in the state.
Obasanjo imposed emergency rule on the state, suspending the governor, his deputy and the legislative assembly. He appointed a retired Army chief, Maj.-Gen. Chris Alli, as administrator for a renewable six-month duration.
The suspended governor, through a team of lawyers led by Professor Ben Nwabueze, yesterday urged the court to reject the government's prayers.
He wants the court to hold that under the existing statutes and the constitution, the President is not allowed to suspend a serving governor.
The court has fixed December 6, 2004 for judgment on the matter.
The defence also argued that the court should hold that once elected, a state governor enjoys constitutional immunity from civil or criminal prosecution until he ends his term of office.
Nwabueze asked the court to hold that the suspension from office of a governor, being null and void and of no legal effect, cannot be a ground for terminating the office.
The Attorney-General was represented by a lawyer from his office, Mr. Wole Aina, who argued that Dariye had ceased to be a serving governor and he is consequently not covered by section 308 (1) of the 1999 Constitution.
The section confers immunity from prosecution on the President, the Vice President, governors and deputy governors.
Aina also argued that section 308 did not stop the Code of Conduct Tribunal from prosecuting alleged offenders of the statutory provisions which forbid public office holders from operating foreign accounts and not declaring their assets.
The government argued: "We are opposed to the submission of the plaintiff. We have filed a 19- paragraph affidavit and two exhibits. Section 185 of the 1999 Constitution prescribed that all public office holders must declare their assets and should subscribe to the code of conduct for public office holders."
The government continued: "Prohibition of operation of foreign accounts is a condition precedent for a public office holder to be legally protected. If the Code of Conduct finds him guilty, he stands the chance of being removed. Trial before the code of conduct is neither a criminal nor civil trial but merely an investigative panel."
But Nwabueze faulted the government's submission and insisted that Dariye could not be dragged before the tribunal because he enjoys constitutional protection from prosecution.
The professor of law, who is the lead counsel to Dariye, said: "It is unconstitutional, null and void to vest the trial, conviction and punishment for a criminal offence in a tribunal which is not one of the courts in which judicial power is, by section 6 of the Nigerian constitution, vested."
He continued: "The power granted to the Code of Conduct (bureau) by the Act Cap c15, to try and determine criminal charges and to impose punishments thereof, like fine or imprisonment, is null and void for inconsistency not with section 6 only but also with the guarantee of fundamental rights enshrined in sections 35 and 36".
Nwabueze, who led a legal team that included Chief Edwin Clarke, also told the Federal High Court that: "Suspension of a governor from office by the President following a state of emergency declared in the state under section 305, even assuming such suspension was authorized by the constitution, as it definitely is not, is not one of the terminating events specified in section 180 (1) or any other provision of the constitution, as terminating a governor's period of
office."
He continued: "No doubt, a state governor as well as the President of the Federal Republic of Nigeria is subject to the provisions of the fifth schedule to the constitution and, in particular, to the disciplinary power of the Code of Conduct Tribunal. But the immunity conferred by section 308 is expressly stated by the opening words of the section itself to apply notwithstanding anything contrary to the constitution."
The suspended governor's counsel continued: "The constitution includes the fifth schedule and its other schedules by reason of their having been incorporated as part thereof, subject, however, to the rules that, in the event of an inconsistency between a provision in the schedule and one in the body of the constitution, the latter prevails."
December 6, 2004 has been fixed for judgment.
Lar spoke with journalists in Jos, the state capital on last weekend's meeting with President Obasanjo by some elders of the state.
The former PDP national chairman thanked the president for having a "listening ear", but declined giving details of the Abuja meeting.
He said that the people should not bother about the details, adding that the most important thing was that the President had agreed to terminate the emergency rule.
Lar added: "I want to say that Mr. President is a listening President. On behalf of the people of the state, I will like to congratulate him (Obasanjo). I will like to congratulate the Administrator, Maj. Gen. Chris Alli (rtd) on his hard work. The Administrator has been able to bring peace to the state within the stipulated time. He is a good administrator."
On rumours that Obasanjo had tasked the six-man committee on Plateau State to talk Dariye into resigning failing which impeachment proceedings would be initiated against him, Lar said: "Don't bother. The most important thing is that the emergency rule will terminate on the 18th of November as Mr. President had earlier said."`
