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FG Has No Power to Waive Governor’s Immunity

Author: Robert Clarke
Posted to the web: 9/13/2005 11:08:59 AM

Precisely on May 18, 2004, the Federal Government took the nation by the storm when it imposed a six-month state of emergency on Plateau State and the State Governor, Joshua Chibi Dariye was suspended for the same period of six months.

The question of the legality or illegality of creating an emergency period in Plateau State is a matter which is before the Supreme Court at the moment. Professor Ben Nwabuze, SAN is leading me in that case and a date has been fixed for hearing.
What has prompted this writ-up is the report of an alarm raised by a lawmaker in the Plateau State House of Assembly, Mr. Menshak Chinaba in Jos on August 15, 2005 that there were moves by some people in the state to get another state of emergency imposed on the state. This piece will attempt to state in clear terms the position of the law in respect of the whole scenario concerning Dariye and Plateau State since 1999.
What many people in the state feared would cause another State of Emergency is what has already happened - the recall of the Speaker of the State House of Assembly, Mr. Simon Lalong who represents Shendam Constituency. Shendam was at the centre of the ethno-religious crisis in the state last year which led to the imposition of the State of Emergency. Some people wanted to create confusion by recalling him. But the results that were released showed overwhelmingly that the basis of the Independent National Electoral Commissions thinking that they had almost 60% of a no-vote has been proved wrong.
The election showed that only 30 people voted no, while 70% voted that Lalong should be allowed to stay. Immediately after Dariye was suspended last year, there was a plethora of court cases filed against him by the “Federal Government - all in an attempt to completely get him out of government house. But as God would have it nearly all the cases have failed.To state the law succinctly, in respect of other cases affecting criminal aspects, the question of Dariye’s immunity as Governor has come into play.The courts in Nigeria have declared that despite and inspite of his suspension, his immunity still flows with him. So he has immunity. The Nigerian courts have accepted that in view of section 308 of the Constitution.
The problem is in the English Court based on the opinion of the former Attorney-General which, I believe is wrong and has no basis in law, to the government of Great Britain, the Federal Attorney-General claimed the Federal Government had waived the immunity allowing the British Government to take steps to prosecute Dariye for alleged financial offence. I believe that the opinion is floored in law.
The claim by the Federal Government that it is entitled to waive Dariye’s immunity under British law is false. The attorney-General of the Federation based this claim on the Vienna convention and diplomatic relations which is a law made in 1976.
The Federal Government cannot and has no power under the Constitution to waive any immunity on any Governor.
A Governor derives his immunity from the Constitution of Nigeria. He is the head of a sovereign state. Section 308 of the 1999 Constitution is clear on this and the courts in Nigeria have so upheld.
He is not an Ambassador of the Federal Government. Therefore the Federal Government of Nigeria cannot waive any immunity on him because it never conferred that immunity. The immunity of a Governor is conferred on him by the Constitution. After he was reinstated the British Government requested to know what his present status would be.
That legal opinion, with the greatest respect to the AGF was based on false premises. There are decided cases all over the world: in Canada, Australia, and in the House of Lords in England confirming that the head of  a state within a federation enjoys immunity.
The question is what is the law to be decided by the English courts since the Nigerian courts have already decided that Dariye enjoys immunity as Governor.
In England, there is a law passed in 2002 which says that if an amount of cash is found on you that is substantial they would seize that money, and the onus will shift on you to show them the source of that money.
They found on Dariye 100,000 pounds sterling cash in his hotel. They seized the money under the 2002 law in England and they are now asking him to come and show them the source of that money.
Again, the question is do they have a right to search his house/hotel; do they have a right to seize his money as the head of  a state within a federation who had immunity? The question of that immunity is what is to be decided in the England court. It is solely going to be determined on the question whether or not at the time the Federal Government requested that his house be searched Dariye enjoyed immunity.
That matter is being handled in the United Kingdom. And very soon, by the Grace of God, the position which we hold that he enjoys immunity will be upheld by the English courts.
The other case is the one in which he was arraigned before the Federal High Court in Kaduna along with seven former and money laundering again, fortunately, the present Attorney-General of the Federation, Chief Bayo Ojo, SAN was Dariye’s lawyer; and he objected to Dariye’s have being put in as a suspect and his submission was upheld. So there is no case against Dariye.
Looking at the whole scenario in Plateau State in the past six years or so there can be no tangible reason for the degree of onslaught that is being waged against Dariye.
I have never been a politician; but I have been fortunate to be a lawyer to politicians for almost 30 years.
Presently I am the Legal Adviser/Consultant to Governor Dariye. I was the Legal Adviser to the (erstwhile) NPN; I was Shagari’s lawyer; I was the sole counsel to Chief Tom Ikimi during the NRC/SDP election petition case; I handled many cases for the NRC; today I handle cases for the PDP; I also handle cases for ANPP.
The way and manner politicians behave is best known to them. One thing I have leant is that your worst enemy as a politician is in your party. The party to which you belong is where you worst enemy reside. So it will not be surprising to know that the worst enemies of Dariye today are within his party - the PDP; and they want him down just because they want there nominee to be there.
As I said, he is a man of God, but the problem is that within his party some people have ambition, and to realise their ambition they must finish him, that is what is happening.
I want to make clear that with the return of Dariye after the emergency rule there has been a return of peace to the state. Speaking from my personal knowledge of Dariye, he is a Man of God who is after the peace of the State just as people like Solomon Lar and others are Men of God who are after the peace of Plateau State.
For this country to survive as a haven for investors there must be peace. And the best state in this country outside Calabar is Plateau State where tourists all over the world come to see the wonders of the world.

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