Constitutional crisis looms over convicted lawmakers

Penultimate Thursday in Lagos, the Senate’s Chief Whip, Senator Orji Uzor Kalu (APC, Abia North), was convicted on charges bordering on embezzlement of N7.5 billion while in office as governor of Abia state, between 1999 and 2007, However, the leadership of the Senate insists on regarding Kalu even while in incarceration as a serving member, just like the former governor of Plateau state, Jonah Jang, with attendant backlash. TAIYE  ODEWALE reports

After about 12 years of prosecution by the Economic and Financial Crimes Commission (EFCC) on charges bordering on money laundering, illegal enrichment and outright embezzlement of public funds to the tune of N7.5billion , Orji  Uzor Kalu who became a Senator of the Federal Republic of Nigeria  through his victory from the February 23, 2019 National Assembly Elections conducted by the Independent National Electoral Commission ( INEC) ; was eventually convicted and sentenced to 12 years imprisonment by Justice Mohammed Idris of the Federal High Court in Lagos.

Kalu was convicted alongside his firm, Slok Nigeria Limited, and Jones Udeogu, who served under him as the Director of Finance and Account at the Abia state Government House in Umuahia.

While Udeogu was sentenced to 10 years’ imprisonment, the judge ordered the winding up of Slok Nigeria Limited, holding that his assets and properties be forfeited to government.

Out of the 39 counts filed against the trio, the judge convicted Kalu of the entire 28 counts in which his name featured.

On each of counts 1-11 and 39, he was sentenced to five years’ imprisonment; on each of counts 23-33, he was sentenced to three years’ imprisonment; and on each of counts 34-38, he was sentenced to 12 years’ imprisonment.

In pronouncing the convicts guilty, Justice Idris said the EFCC proved its case beyond reasonable doubt, stating, “I, sincerely, cannot find my way clear in finding these defendants not guilty of the offences charged.

“I hold the view that the prosecution has established its case against the defendants; it did not fall short of the standard required by law in money laundering offences.

“It is clear upon the facts before this court that the prosecution had this case conclusively investigated before opting to bring this charge against the defendants. In other words, the prosecution did an in-depth and conclusive investigation.

“In totality, I, sincerely, cannot find my way clear in finding these defendants not guilty of the offences charged. Having reviewed all that has been provided by the prosecution in terms of oral and documentary evidence, I am inclined to resolve the singular issue for determination in favour of the prosecution herein,” he said.

Like Dariye, like Kalu

The High Court of the Federal Capital Territory, Gudu, Abuja, had on June 12, 2018, sentenced former Governor of Plateau state, Joshua Dariye to 14 years in prison on the charges of criminal breach of trust and misappropriation of N1.6 billion while he was the Governor of Plateau state.

Six months after his conviction Dariye was reported to still be receiving the N750, 000 salary and N13.5m monthly running cost from the National Assembly.

The convicted lawmaker, who represented Plateau-Central Senatorial District, was said to be receiving the allowances because his seat had yet to be declared vacant by the leadership of the National Assembly.

Dariye, who was governor of Plateau State from 1999 to 2007, was prosecuted by the EFCC and convicted by Justice Adebukola Banjoko of an FCT High Court.

The ex-governor had even made a non-refundable payment of N8m for the All Progressives Congress’ Senate forms but was screened out by the party in September.

An aide to Dariye, Mr Christopher John, in a media report was quoted as having said that the convict and his aides were still receiving their full allowances.

He said Dariye had appealed his conviction at the Supreme Court and it would be unfair for his seat to be declared vacant when he had not yet exploited all legal channels.

“He has already appealed the case; so he is still a senator pending the decision of the Supreme Court. It is right for us to still be receiving salaries because his case has not ended. “There are many other senators having issues with the courts like Senator Attah Idoko from Kogi State. Judgment was given in favour of AVM Isaac Alfa but since Idoko has appealed the case, he is still serving and attending sittings as a senator pending the outcome of the case.

“Aides should still be receiving salary because Dariye is still a senator. And he is still receiving his allowances and will continue to do so until the case is closed,” he said.

Speaking on the development, the then Director for Information at the National Assembly, Mr Jerry Agada, said there was no court order or directive from the Senate President to stop Dariye’s salary and so it could not be stopped.

Agada said it was possible for Dariye’s salary to be withheld pending the outcome of the case in court but the National Assembly Commission had no such powers to stop it.

He said: “The procedure of the National Assembly is that a person’s seat must be declared vacant before he is no longer a senator. Based on the latest information we have, they said he had taken the matter to the Supreme Court.

“On our own, we have no power to stop the salary or allowances of any senator whose seat has not been declared vacant. Our intention was that his pay would be put on hold pending the outcome of the case but do we even have such powers?

“He remains a senator in the eyes of the law. It is not a matter of morality now but a matter of law. The power to declare any seat vacant resides in the Senate President or the Speaker.”

The Backlash

But 10 days after the judgement controversies are arising from perceived lacunas in relevant provisions of the 1999  constitution as amended, as regards whether or not he  should  be treated as a serving Senator.

Why as a result of the conviction and in reference to section 66 of the 1999 constitution as amended, some concerned citizens and in particular, groups like Socio – Economic Rights

and Accountability Project (SERAP) are calling for declaration of Abia North Senatorial Seat, occupied by Kalu as vacant, others like the Senate itself , Senators and some  legal practitioners, said time for that has not come yet, since the Court of Appeal and Supreme Court, are yet to affirm the judgement.

Section 66 (1h) of the constitution states “ Nobody shall be qualified for election to the Senate and the House of Representatives if he or she has been indicted for embezzlement or fraud by a Judicial Commission of Enquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the federal or state government which indictment has been accepted by the federal or state government respectively.

Section 66 ( 2 a – d) of the constitution however states thus : “where in respect of any person who has ( a), adjudged to be a lunatic ( b), declared to be of unsound mind (c), sentenced to death or imprisonment or ( d) , adjudged or declared bankrupt , any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria , subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is absconded, whichever is earlier …”

Arguably on the basis of provisions of Section 66(1h) and 66 (2 a – d )  of the constitution, SERAP has issued the Senate a seven-day ultimatum to suspend payment of salaries and allowances to former Governor of Abia state, Mr. Orji Uzor Kalu, pending the outcome of any case at the court of appeal.

SERAP said it was giving the Senate leadership seven days to suspend, pending the outcome of any case at the court of appeal, payment of salaries and allowances to the convicted senator, stressing that monthly payment of N14.2m monthly to Kalu while in prison and unable to sit and perform the functions of a sitting senator is unconstitutional.

“We are re giving Senate leadership led by Dr. Ahmad Lawan seven days to suspend (pending the outcome of any case at the court of appeal), payment of salaries and allowances to Kalu who last week was sentenced to 12 years in prison after conviction for N7.65 billion fraud.

“Monthly payment of N14.2million to Kalu while in prison and unable to sit and perform the functions of a sitting senator is unconstitutional. Kalu ordinarily ceases to be a senator, as per the provisions of section 66 of the 1999 Constitution of Nigeria (as amended).

“Section 68(1) provides that a senator shall vacate his/her seat if any circumstances arise that would cause him/her to be disqualified for election as senator,” SERAP said in a statement Monday”

He’s still a senator – Godiya insists

But the Senate had last weekend said Kalu would continue to receive his salaries and all other entitlements while in prison as done for Senator Joshua Dariye during the 8th Senate.

Specifically, the spokesperson of the Senate, Godiya Akwashiki (APC Nasarawa North), said until the case gets to Supreme Court and a final judgment is given, Kalu remains a serving lawmaker.

“He is still a senator. This is the first court. The matter is going to Supreme Court; so, he still has the opportunity to appeal up to the Supreme Court level after which final decision if he loses, will be taken on his seat,” he said.

Constitutional provisions not been faulted

Arguing in the same way in a telephone conversations with the Blueprint Weekend Senators Micheal Bamidele Opeyemi (APC Ekiti Central) and Chukwuka Utazi (PDP Enugu North), said the constitutional provisions have not been faulted or violated in anyway by the Senate or INEC as far as Abia North Senatorial Seat is concerned.

“For me as a lawyer and lawmaker, no relevant provisions of the 1999 constitution on the subject matter has been violated either by actions already taken or yet to be taken.

Specifically, Senator Opeyemi in his remarks on the raging issue said: “In as much as I will not like to comment much on the issue as a serving senator like my colleague who is in the eye of the storm, I will just appeal to those advancing for one position or the other on the issue, to please study the constitution very well to see whether in actual fact, any of the relevant provisions has been breached or violated.”

Suspend rights pending appeal outcome

However in his own reaction, an Abuja based legal practitioner, Barrister Gaius Osambowen said though none of the provisions of Section 66 subsections 1 and 2 of the 1999 constitution as amended can be said to have been violated with a convicted Senator Kalu still retaining his seat in the 9th Senate but what about his monthly salaries, emoluments and allowances.

Will the Senate or by extension, the National Assembly, continue to pay such into his accounts in absentia while in jail as done for Joshua Dariye in the 8th Senate, he queried.

“Remember that Joshua Dariye, who represented Plateau Central, in the 8th Senate was also convicted by competent court of law for corruption and accordingly sent to jail but still received salaries till the end of life span of that Senate.

“This to me is a lacuna in the constitution being corruptly exploited because there is no provisions that says monthly salaries and entitlements of any convicted public officer, should continue running into the bank accounts of such convict.

“What should be done in the case of Kalu is that what the 8th Senate did for Dariye should not be repeated. Kalu’s monthly salaries as a purportedly serving senator should be withheld pending the outcomes of two layers of appeals available on the case.

“If at the Supreme Court, the judgement that sent him to jail is quashed, the ‘ware housed monies and emoluments’ can then be paid to him which will give the required win- win situation for both government and the prosecuted citizen.

“But if on the other way round, both the Appellate  and the Supreme Courts affirm the high court verdict, government and by extension, Nigeria  will not lose because salaries paid into a private citizen’s account cannot be retrieved since he didn’t force government to do it,” he said.

He added that as the National Assembly rose to the occasion as regards sudden death of candidate of a political party during election through required amendment of the electoral act, constitution amendment of the lacuna being exploited should be made in taking care of such situations in future.

Going by the foregoing and as the month will soon run to an end,  Nigerians will definitely want to know whether the Senate having officially declared that for now, Kalu remains a serving Senator, pay his December Salary or not.

If it does , it may trigger more controversies , since by public service rule, he spent only three out of the 21 days (excluding Saturdays and Sundays),  available for service in the month as against the required 10days , having been convicted on Thursday,  December 5, 2019.

Whichever options the Senate wants to adopt on the matter, time and in fact, the coming days will tell.

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