Nigeria: Why Nigerian Lawmakers Convicted of Corruption Can Still Retain Their Seats - Lawyers

President Muhammadu Buhari and Yemi Osinbajo.
24 November 2018

Nigerian lawmakers convicted of corruption can still retain their seats because of a constitutional lacuna, lawyers have explained.

The lawyers in separate interviews on Thursday and Friday said there was need for a constitutional amendment to appropriately address the fate of public office holders convicted of fraud.

Their reactions follow a controversial ruling by a High Court in Gusau, the Zamfara State capital on Thursday.

Lawali Dogonkade, a lawmaker representing Kauran-Namoda Local Government Area of the state, was convicted for receiving a bribe of N4.5 million in a contract involving the sum of N31.2 million.

He was sentenced to four years in prison.

Interestingly, he was given an option of fine: N120,000 to be left off the hook.

Reactions have continued to trail the verdict.

Jiti Ogunye, a lawyer, told PREMIUM TIMES in a telephone interview that the constitution is silent on the fate of sitting public office holders, regarding continuity in office, upon conviction.

"After paying the fine, it has made him an ex-convict. Also, being an ex-convict only affects the eligibility to contest for an office.

"The constitution is silent on a sitting public office holder, on his continuity in that office. That rule only affects somebody who is aspiring for an office, not somebody who is already occupying a seat in a political office," Mr Ogunye said.

He added that the Code of Conduct Tribunal (CCT), however, has the power to remove a convicted legislator.

"If that legislator had been charged before and tried by the Code of Conduct Tribunal, the tribunal has the jurisdiction and the power to remove him from public office.

"Under the criminal law, every offence is designed by law. The punishment for that offence is also provided by that law. Usually in our criminal jurisprudence in Nigeria, which is meant for offenders, there is custodial and noncustodial punishment. For the custodial punishment, it is imprisonment, for the non-custodial, it is fine.

"The Code of Conduct Tribunal has the power to bar somebody from holding public office. That is one of the specific punishments it could impose. If that legislator had been charged before the CCT, he could be removed from holding that public office for violating that code of conduct.

"So this person (legislator) was not charged under the Code of Conduct Tribunal, it was just the ordinary court of law, it does not have the enumerated statutory power to impose such a punishment."

Mr Ogunye added the only other alternative is a recall by the lawmaker's constituency.

"Only if his constituency wants him recalled, then they can do that and unless they do that, he is still a member of the house. And his cc-members cannot declare his seat vacant. He has not crossed to any political party to warrant his party to declare his seat vacant. We cannot imagine what the law does not provide for."

Mr Ogunye also spoke on the Plateau State Governor, Joshua Dariye also convicted of fraud.

"As for Senator Dariye, yes he is in prison, but the constitution does not say he can be recalled. So, in the eyes of the law, he is still a member of the Senate. His senatorial seat was not the subject matter of his criminal trial and conviction."

Former Governor of Plateau State, Sen. Joshua Dariye, during his arraignment at the FCT High Court Gudu,in Abuja on Tuesday (12/6/18). The Court sentence him to 14 year imprisonment for fraud and misappropriation of funds. 03249/12/6/2018/Hogan Bassey/NAN

Mr Ogunye also gave instances of other lawmakers who have faced trials and still retained their legislative positions.

"The former governor of Osun, (Iyiola) Omisore was in detention when he was elected as a Senator. This is an area where the constitution does not provide for. Only when we seek a constitutional amendment," he added.

Liborous Oshoma, also a legal practitioner, said Mr Dogonkade can no longer contest for another election.

"The law is silent on if he would retain his seat as a member of the Zamfara State house of assembly. The conviction does not affect the election that he stood for.

"The law is silent whether his conviction should make him vacate his seat as a legislator, but in the law, he can no longer stand for another election being an ex-convict," he said.

Eluma Asogwa, another lawyer, said the only difference between the former Plateau State governor's case and the Zamfara State lawmaker "is that one of them was sent to prison, without an option of fine".

"The 'dichotomy' between Dariye's case and the Zamfara lawmaker was that the Dariye was jailed and when he was jailed he was an incumbent. What the Senate president said was since his seat had not been declared vacant by INEC, he (Dariye) would keep drawing his salaries.

"The issue of Mr Dogonkade, he is allowed to go back to his seat, that is the lacuna. The truth is that our laws only make provision when people are vying for elections.

"If you have been convicted you do not have eligibility to stand for election. The lacuna there is if in the middle you have been elected and you get convicted, the law did not make specific provisions for that.

"And because his own conviction ended with a payment of fine, he is not serving a prison sentence. If he was serving a prison sentence, the Speaker of the state house of assembly would have declared his seat vacant. Our laws need comprehensive amendments," Mr Asogwa said.

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