The Rule of Law & Due Process As Sword & Shield?

by Paul I. Adujie

Since the inception of President Obasanjo’s administration, and particularly, since the reinvigorated war against corruption, a crusade which is led by Mallam Nuhu Ribadu and his agile EFCC, some Nigerians have taken to actions and comments, which frequently appear only calculated to distract and derail the anti corruption crusade.

Mallam Nuhu Ribadu, Nigeria’s Weapon of Mass Destruction (WMD) against corruption, has just won a major victory in his anti corruption crusade…. Mallam Ribadu and his EFCC management and staff, have just secured the impeachment of Mr. Joshua Chibi Dariye, the now erstwhile governor of our beloved Plateau State of Nigeria. This is the equivalent of winning the Super Bowl in America! It is similar to the winning of the World Cup in Soccer! Mr. Dariye’s impeachment has been long-awaited and overdue!

Nigerians, and others, will recall that Mr. Dariye has been a fugitive from the law in England since his arrest for money laundering in England years ago. He was subsequently accused of corruption in Nigeria by the Mallam Nuhu Ribadu led Economic and Financial Crimes Commission. Mr. Dariye has used deceit and subterfuge to evade and delay punishment and consequences for money laundering and corruption, all this, despite overwhelming evidence against Mr. Dariye, both in England and Nigeria demonstrated by law enforcement agencies in both countries.

The Nigerian Bar Association, ostensibly informed by its desire to ensure that our laws are obeyed and respected, and that the rule of law and due process is enshrined in practical terms, in our legal and political systems, the NBA has overlooked the impunity and complete contempt with which some of our public officers treat the law and due process.

The Nigerian Bar Association and their rule of law and due process brigade, have appeared to often rise quickly, too quickly, in the defense of decadence. Or why is it that too many Nigerians are not, more worried about the corrupt criminal behaviors and misconducts, but only singularly focused on the rights of the accused? Even in the face of overwhelming evidence against Alamieseigha and Dariye? Overwhelming evidence of their criminal behavior in Nigeria and in Britain!

It used to be said that those who come to equity must come with clean hands! So, why is it that more Nigerian intellectuals, commentators, journalists and indeed, the Nigerian Bar Association, are not more concerned with the criminal behaviors, behaviors with impunity, of and by some of our public office holders? Criminals and fugitives as exemplified by Alamieseigha and Dariye, who have caused Bayelsa and Plateau States, in particular and Nigeria as a whole, monumental embarrassment, with their criminal behaviors and subsequently becoming fugitives from the law in England, especially, in such quick succession?

Why is it that those who seek to wrap themselves with our constitution, and hide behind our constitution, are the same persons who are unwilling to obey our constitution?

Why is it that some Nigerians never ask those who seek the protection of the rule of law and due process to first and foremost, practice, observe and respect these fine ideals and principles themselves? Why is it, instead, these egregious offenders, these brazen gangsters and outlaws, are only interested, in using these fine tenets and ideals, as sword and shields for their selfish ends!

I accept the point, to the effect that even the worst criminals deserve legal protection as provided by our constitution and applicable statutes. I am in complete support of every effort to enshrine the rule of law and due process in our legal and political systems. I am aware that a strong foundation for our political and legal systems depends on respecting and observing these high ideals and fine tenets.

But what do you do when two governors in Nigeria, in quick succession, and as if in tandem, became fugitive from the law in England and these, despite the overwhelming evidence against them?

But what do you do, when those who have sworn to uphold our constitution, to uphold the law, resort to fragrant law breaking at home and abroad?

But what do you do when for so long, Alamieseigha and Dariye remained the chief law officers, chief security officers of Bayelsa and Plateau states in Nigeria, and yet, these two men were themselves wanted for fleeing the rule of law and due process in England?

And what do you do, when as in the case of Dariye, he attempted to subvert and pervert justice by removing Justice Dakyen, a judge that was part of Dariye’s impeachment process? Dariye with that action, attempted to be a judge, a jury and an executioner in his corruption-impeachment trial.

Cleary therefore, Dariye, apart from being egregiously and grossly corrupt, he does not care a hoot about the rule of law and dues process! Dariye removed Justice Dakyen without the approval of two-thirds of Plateau House Assembly members and without recourse to the National Judicial Council, as our constitution requires.

Two Nigerians with pseudo names added their input to an online breaking news debate on Dariye’s impeachment:

Sincere Brillow stated the following: I have the privilege of providing a-first-hand information on the situation in plateau state. A) It is undeniable that Gov Joshua chibi Dariye is doing little or nothing in the state. B) It is undeniable that Gov Joshua chibi Dariye cares less about the poverty stricken people of plateau state selfish ends! C) It is undeniable that Gov Joshua Chibi Dariye has no master plan for the health sector of the state. D) It is undeniable that Gov Joshua Chibi Dariye is owing school teachers some months salary. E) It is undeniable that Gov Joshua Chibi Dariye has left the roads in the state in a terrible condition compared to what is obtainable in neighbouring states like Bauchi and Kaduna. F) With all these, we have every reason to say Gov Joshua Chibi Dariye is no longer fit to govern the state as he has failed in delivering to the people of the state. Even so, Sincere Brillow wants Dariye shielded, law and due process and all?

Then the other Nigerian responded thus, Here is a thirty-minute movie script based on the above: A killer is on the loose, he is going bang bang bang in a school, the police are called, surrounds the school but couldn’t get in; there is a standoff; finally, the police bravely goes in and bang, he is dead. Now enters Sincere Brillow, the TV lawyer to raise objection to police use of excessive force, and demands to know why they had not caught and brought the killer to justice. And I might added that the rule of law and due process brigade acting as though they are willfully burying their heads in the sand!

Most Nigerians seemed agreed that there is unbridled corruption pandemic in Nigeria, but are some Nigerians equally agreed that drastic and radical measures are needed to curb the brazen and egregious criminal behaviors of public officials such as Alamie and Dariye? Why do some Nigerians persist in castigating the EFCC?

Accusing EFCC of witch-hunt, when the EFCC catches up with criminals, by arguing that there are other criminals elsewhere, is akin to an accosted motorist arguing that he should not answer for his guilt or innocence, for running past a traffic light that was indicating red to stop, as the driver insists that there are other bad drivers!

Many drivers in New York City for instance, are the worst in the world, but those who get caught by the New York Police Department do not argue or hope to escape punishments, by informing the arresting police officers that there are other bad drivers in New York City!

A bad driver who gets arrested for an offence or violation must argue his guilt or innocence, not by stating there are other bad drivers in the city! Defend yourself when you get caught, others will get caught eventually, and they will in turn defend themselves, your defense does not lay in the fact that there are other criminals in existence, in our nation!

Joshua Chibi Dariye is an enemy of the people of Plateau state and an enemy of Nigeria’s progress! Good Ridance to rotten garbage! Mr. Dariye should be sent to Britain where he is a fugitive from the law! Who Is The Next Governor For Impeachment By EFCC? Mallam Nuhu Ribadu, you have just impeached Joshua Chibi Dariye a felon and fugitive from the law, Mallam, who is the next governor for impeachment in Nigeria? A) Governor Orji Kalu of Abia State? B) Governor Igbinedion of Edo State?C) BOTH!!!!!!

It is quite amazing that those who pillage Nigeria with their high-octane corruption, are the same persons, who with their cronies, shout the rule of law and due process from the rooftops in high-decibels! They shrill-shout fine principles to which they themselves are not amenable! Those who steal from Nigeria, those drag Nigeria to destitution, ought to face the death penalty or rot and rust in prison forever!

When will more Nigerians spend more time enquiring into the guilt or innocence of those public officials accused of corruption, especially in the face of overwhelming evidence?

When will some Nigerians stop accusing and distracting the EFCC and other Nigerian law enforcement from carrying out the monumental tasks of ridding our society of those who plunder it?

Corruption deprives Nigeria, our nation, of public infrastructures required for economic and political development! Fighting corruption therefore, is, as far as I am concerned, is job number one and we ought to support anyone interested in ridding Nigeria of this scourge!

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Sanjo Emmanuel November 21, 2006 - 8:30 pm

Uche, Gani Fawehinmi opinion does not support Adujie's position. Adujie position is, with due respect,pedestrian. Gani's opinion is a sound legal opinion. I do not know whether he is right or not. Many of us have read this opinion in the press. It sounds logical and I wish to heaven that it holds true. But then only the law courts can make a determination of the interpretation of the constitution. When Alams was arrested in London, some respectable Nigerian lawyers such as Olu Onagoruwa claimed that the constitutional immunity confered by the Nigerian constitution on a governor extends outside the shores of Nigeria and he made some sound argument to back himself up. But then that was his own informed opinion. Anyway my point is that there is no doubt many of the governors are corrupt and in ages gone by would have been shot. But we are in a different age now and our machiavellian disposition should be done away with.

Anonymous November 20, 2006 - 1:00 pm

Uche Nworah

Location: UK

The removal of Governor Joshua Dariye By Gani Fawehinmi

Chief Barrister Paul Adujie, my brother welcome back to the square. Meanwhile on the dariye issue, here is Gani's legal take on the matter which in a way supports your view. He has shed some light on the argument particularly on the 2/3 majority issue.

The removal of Governor Joshua Dariye

By Gani Fawehinmi

IT is good news that Governor Joshua Dariye of Plateau State has been removed from office for corrupt practices. The evidence is that he stole the resources of the people of Plateau State and converted same to his own, laundered the money and siphoned it into various accounts in England. Amounts discovered so far was eight million pounds (that is, two billion naira). What Dariye had done was a violation of Section 15(5) of the Constitution of the Federal Republic of Nigeria, 1999, which provides thus: "The State shall abolish all corrupt practices and abuse of power."

There are still many of the Governors who are like if not worse than Dariye. They should be flushed out. Let it be clearly understood that with corruption, the people are denied employment, good education, water, electricity, housing, good health and sound infrastructure. After all, Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, provides: "The security and welfare of the people shall be the primary

purpose of government". But with corruption, this provision of the Constitution remains virtually dead.

Is the impeachment legal in terms of Section 188 of the Constitution? Of course yes! It is legal and constitutional. Two-third prescription in Section 188 of the Constitution means two-third of the members of the Plateau State House of Assembly. Surely, these members will not include those who had decamped from the party on which platform they were elected to the house. This is so in view of Section 109(1)(g) of the constitution of the Federal Republic of Nigeria, 1999 which provides as follows:

"109(1) A member of the House of Assembly shall vacate his

seat in the House if (g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another party before the expiration of the period for which that House was elected:Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored".

Consequently, those who decamped from People's Democratic Party (PDP) in the Plateau State House of Assembly to another political party ceased to be members of the Plateau State House of Assembly. It is therefore erroneous for anyone to think that those who lost their seats could still cast their votes or could still be reckoned with as members of that Assembly. The position of those who decamped is further worsened by the pronouncement of the Independent National Electoral Commission (INEC) that there is only one PDP and that there is no division or faction in the PDP.

As a matter of fact, the Independent National Electoral Commission (INEC) was planning at a time to hold bye-election in the constituencies of those who had vacated their seats in the Plateau State Assembly. For sometime now, my colleagues in the Nigerian Bar Association (NBA) particularly the Executive have been talking about the need to observe the rule of law. Yes, I agree that we must all observe the rule of law in Nigeria. The question is what is the Rule of Law? The answer to that is simple. Rule of laws means that the law must rule. Section 15(5) of the Constitution of the Federal Republic of Nigeria, 1999 which is the fundamental law of the country is part of the law which must rule.

The duty of every citizen to give effect to Section 15(5) which abolishes corrupt practices and abuse of power means that the rule of law to abolish corruption must be observed. The provision of two-third majority in section 188 is another rule of law which must be observed. Consequently, in relation to Dariye's matter, there are many angles to the phrase: rule of law.

It is the duty of all and sundry to read all relevant sections of the Constitution in addressing a particular constitutional issue. That is the approach the Supreme Court laid down in the case of Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors (1982) 3 NCLR 1particularly at pages 77-78.

It is my considered view that the corrupt Governor Joshua Dariye who violated section 15(5) of the Constitution was rightly impeached under section 188 of the constitution, bearing in mind the relevant provision of section 109(1)(g) of the constitution of the Federal Republic of Nigeria, 1999.

The Economic and Financial Crimes Commission (EFCC) should now take the appropriate steps: Arrest him Prosecute him in the appropriate Court in Nigeria

Seize all the properties he has illegally acquired with the resources entrusted to him when he was Governor of Plateau State.

Dariye's case is good riddance to bad rubbish.

Fawehinmi is a Senior Advocate of Nigeria (SAN).

Culled from The Guardian Tuesday 14th November 2006

Paul I. Adujie November 20, 2006 - 12:55 pm

EFCC takes over Dariyes properties

ISAAC SHOBAYO, Jos and GBOLA SUBAIR, Abuja – 20.11.2006

FOLLOWING the impeachment of Governor Joshua Dariye of Plateau State last week, operatives of the Economic and Financial Crimes Commission (EFCC) have started taking over the properties of the former governor in Jos, even as the investigative panel has resumed sitting.

Nigerian Tribune findings revealed that men of the commission last week inspected and filmed all the properties named in the petition submitted to the investigative panel with the aim of confiscating them after the panel might have completed its assignment this week.

Among the properties the EFCC operatives visited were a plot of land adjacent to NTA College, Jos; old Bukuru Club House allegedly purchased by the governor last year, his Zaramaganda House and others in and around Jos.

It was gathered that the men of the commission planned to present all the pictures taken as evidence before the panel this week.

Meanwhile, the seven-man panel set up to investigate the impeached governor has resumed sitting in spite of the removal of the former governor based on the alleged preliminary report submitted by the panel.

According to the secretary of the panel, Mr. Peter Deshi, it would resume its sitting to treat the remaining two out of the five allegations of misappropriation of funds and abuse of office levelled by the state House of Assembly against the former governor.

The secretary, in a statement, said five allegations were levelled by the Mike Dapialong faction of the state House of Assembly, and that three of the allegations had been investigated, adding that it was based on the three allegations that the governor was impeached.

He added that the remaining two allegations must be looked into for the benefit of the Plateau people, today and tomorrow. Mr. Deshi disclosed that efforts made by members of the panel to sit on the two remaining allegations were frustrated twice, but added that the panel must complete its assignment and submit its final report to the Dapialong-led House of Assembly on schedule.

But contrary to the position of the panel that the former governor was impeached based on the interim report submitted to the Michael Dapialong-led six members of the state House of Assembly, a commissioner in the administration of Chief Dariye who asked not to be named told the Nigerian Tribune that no report was submitted to the House as claimed by the panel.

He stated that before the impeachment, the panel had not completed the first stage of its findings as the Metropolitan Police called to testify did not wait to be cross-examined before the two of them returned to London.

Meanwhile, the EFCC has secured a N100 million take-off loan from the Bureau of Public Enterprises (BPE).

Director General of the BPE, Mrs. Irene Chigbue, disclosed this in Abuja last week while speaking on the BPE as a principal agent of the reforms carried out by President Olusegun Obasanjo.

Demanding its due from all stakeholders, the BPE boss said people conveniently forgot that the BPE was the principal agent of the reform activities of the Obasanjo administration.

She said the BPE midwifed, nurtured and weaned the reforms processes that produced the Pension Commission, EFCC, NCC, NERC, among others.

Mrs. Chigue said the people had forgotten that EFCC was midwifed by BPE and actually granted EFCC the takeoff loan of N100 million. Disclosing that it was not an agent of doom, the BPE boss stated that she was certain that in the near future, Nigerians would forget that BPE midwifed the reforms that produced EPSR act for the power sector and set up NERC.

When steady megawatts of power flow through the lines because of massive private sector investment and ensure your light at home does not blink, BPE will recede in the minds of Nigerian, she said.

Mrs. Chigbue said the on-going revolution in telecommunication sector was the pioneering reform work of BPE, stressing that NCC was seen as a wonder institution that dropped from nowhere.

Disclosing that BPE was not soliciting for accolades, Mrs. Chigbue said the bureau was used to working siliently for good of Nigeria and would continue to do so.

Sanjo Emmanuel November 18, 2006 - 9:56 pm

The undertone of Mr Adujie piece is frustration with the level of corruption in Nigeria. This is understandable but what is not understable is his support for the jettisoning of the rule of law especially because he is said to be a lawyer. He admits that the rule of law is important for building a strong political and legal system but he opined that we should jettison the rule of law because after all these corrupt governors themselves do not respect the rule of law or the constitution. A tooth for a tooth argument is appealing but it will lead us no where. A vigilante society is not in our best interest. We may not like the pace of the law but our haste has not helped us in the past and will not help us now. Justice may travel slow but it always wins in the end. What Mr Adujie and other lawyers should devout themselves to is how we can ensure that the ideal of the rule of law is not used as a shield by corrupt politicians. One way I suggest is to make the case to expunge from our constitution a blanket immunity for office holders. The constitution must guarantee that no office holder will be prosecuted for executive decisions such as sending soldiers to wars even though it turns out the premises are false(as in Iraq). However a leader accused of graft must by law step down and face prosecution. If found innocent must be reinstated and the accusers must face strong legal consequences to deter those who will make flimsy accussations.

No system is perfect. But it is better to set free a guilty person than to punish the innocent. We are humans and are open to sometimes monumental mistakes. Therefore it is important to have the safeguards. However imperfect our law may be, we must not ressort to vigilante system. The western world we have come to love and live is not inhabited by aliens but people of like passion as us. What distinguishes the western societies from ours is the respect for the rule of law. Sometimes painfully this allows the guilty to go free but it also guarantees that most of the time the innocent will not be unduly punished. A painful example is the double jeopardy principle( a person who has being acquited of a crime cannot be prosecuted again for the same crime). This sometimes allow a guilty individual to go free but thankfully in places like England the principle of double jeopardy has been amended so that when there is a new and compelling evidence a person can be tried again for a crime for which he or she has been previously acquited. Lesson: we should enshrine the respect for the rule of law and rather than disobey the law we should seek to change laws that are not just.

Mr Adujie used a killer on the loose scenario to butress his arguement for jettisoning the rule of law. It is like comparing apples and oranges. Which is what we do best in Nigeria to justify our argument. Mr Adujie I believe knows that for his rampaging killer scenario, a law and order society will ensure that the procedure and circumstances necessitating the shooting of the killer by the police is subjected to review after the incident to ensure that the police is not overtly trigger happy. That I believe is a good safeguard and the beauty of law and order.

If a relative of a victim of the Oklahoma city bombing were to walk into the court room during Timothy McVeigh's trial and shoot him dead. It will be understandable to most people but such a person will be prosecuted for murder. Why? To uphold the rule of law and to discourage vigilante justice. But that will serve McVeigh right. Yes. but then where will it lead society if one person can shoot the other dead on the basis of unverified suspicion.


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