SERAP Sues Saraki For ‘Paying Dariye N14.2m Monthly Allowances In Prison’

Socio-Economic Rights and Accountability Project (SERAP) has
filed a lawsuit asking the Federal High Court in Lagos to
“stop the Senate President Bukola Saraki from paying former Plateau
State governor, Senator Joshua Dariye N14.2 million monthly
allowances while he serves out a 10-year prison sentence for
corruption because such payment violates Nigerian law and
international obligations.”

According to SERAP’s lawsuit, Mr Dariye is still receiving the
N750,000 salary and N13.5 million monthly allowances from the
Nigeran Senate six months after his conviction. In June, an FCT
high court convicted Dariye for diverting N1.162 billion state
ecological funds while he was governor. He was sentenced to 14
years in prison, which was later reduced to 10 years by a court of
appeal in Abuja. Dariye is said to have been paid N85.5 million as
allowances since his conviction.

Joined as Defendants in the suit are: Mr Dariye and the National
Assembly Service Commission.

In the suit number FHC/L/CS/2146/18 filed last Friday, SERAP
argued: “Mr Saraki and the National Assembly Service
Commission are trying to override Nigerian law and the judgment of
our court by continuing to pay Mr Dariye’s allowances while he
serves out a 10-year prison term and unable to sit and perform the
functions of a senator. This action undermines the rule of law and
is a great moral failure because it sends a message that corruption
pays—it’s the opposite of Nigerian Constitutional principles and
international obligations.”

The organisation also argued: “Stopping the Defendants
would ensure that only sitting and serving senators are worthy of
drawing salaries and allowances from the public treasury. It would
also further the public interest and general public confidence in
the government it elects. The interest in public confidence is
greater than the convicted person’s interest in continuing to
receive allowances while serving his sentence for corruption in
Kuje prison.”

The 15-page lawsuit read in part: “Mr Saraki and the National
Assembly Service Commission should be immediately restrained from
unlawfully paying salaries and allowances to Mr Dariye who is
serving jail term. Restraining them would send a clear message to
Nigerian elected officials that corruption does not pay and
contribute to promoting accountability and fostering public trust
and confidence in Nigeria’s democracy, the rule of law and the
governance system.”

“By paying Mr Dariye’s allowances while in prison, Mr Saraki and
the National Assembly Service Commission have destroyed the
efficacy and purpose of Mr Dariye’s conviction and have brought the
rule of law and administration of justice into disrepute. SERAP and
the public are alarmed by the action of Mr Saraki and the National
Assembly Service Commission and they ought to be restrained by this
Honourable Court.”

“Mr Saraki and the National Assembly Service Commission should
not be allowed to continue to make a mockery of the rule of law,
our process of administration of justice and our judicial system by
behaving as if the Nigerian Senate is not bound by the court
judgment which convicted and sentenced Dariye for corruption. Mr
Saraki and the Nigerian Senate should be compelled to respect and
obey decisions of the court.”

“By continuing to pay Mr Dariye’s allowances after his
conviction and while in Kuje prison and unable to sit and perform
the functions of a sitting senator, Mr Saraki and the National
Assembly Service Commission have played a negative role to wit:
undermining the authority and integrity of the court. Mr Saraki and
the National Assembly Service Commission knew or ought to know that
Mr Dariye has been convicted and sentenced and now serving his jail
term in Kuje prison pursuant to a decision of a competent
court.”

“Mr Dariye, having been convicted, sentenced and currently
serving jail term in Kuje prison can no longer by virtue of his
imprisonment lawfully carry out or perform the duties of a senator.
Mr Dariye 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. This is exactly what happened
to Mr Dariye, who is, as a result of his imprisonment, no longer
fit to be a senator let alone be entitled to allowances of a
sitting senator. Similarly, a senator shall vacate his/her seat if
without just cause, he/she is absent from meetings of the Senate,
for a period amounting in the aggregate to more than one-third of
the total number of days during which the Senate meets in any one
year”

“Mr Dariye is no longer a senator having been convicted,
sentenced and currently serving prison terms and having been in
prison since June 12, 2018, he is caught by the provision of
section 68(1)(f) as it is practically impossible for him to sit as
senator.”

“Mr Dariye, having been absent for a period amounting in the
aggregate to more than one-third of the total number of days during
which the Senate meets in 2018, is disqualified and therefore his
seat has automatically become vacant. Mr Dariye is no longer
entitled to be paid and/or to receive the allowances of a sitting
and serving senator.”

“Mr Dariye’s conviction remains in effect until it is set aside.
Therefore, the argument that he has appealed his conviction will
not hold water. A judgment of a competent court of law subsists
until set aside on appeal. The Supreme Court of Nigeria has made
this point very clear in several cases.”

“So long as the decision exists, it must be obeyed to the
letter. A judgment of court, no matter the fundamental vice that
afflict it, remains legally binding and valid until set aside by
due process of law. As the Supreme Court has said, the judiciary
like all citizens of this country cannot be a passive on-looker
when any person attempts to subvert the administration of justice
and will not hesitate to use the powers available to it to do
justice in the cases before it.’’

“Mr Dariye cannot justly and reasonably earn the allowances of a
sitting and serving senator, having been convicted and sentenced
and serving a prison term. Under the common law principle
of money had and received, Mr Dariye is under a
legally binding duty to return all such salaries and allowances to
the public treasury, having not justly earned such. Mr Dariye
should be compelled to return the allowances he has received so far
since his conviction.”

“SERAP is seeking an order restraining Mr Saraki and the
National Assembly Service Commission from paying Mr Dariye any
further allowances while serving his jail term in Kuje prisons,
Abuja.”

“SERAP is also seeking a declaration that the
seat of Mr Dariye in the Senate is automatically deemed
vacant, having being convicted and
sentenced to a prison term and currently serving jail
term and having been absent at the sessions of the Senate for a period
amounting in the aggregate to more than one-third of the total
number of days allowed, and that
he is therefore, not entitled to any
allowances reserved for a sitting and serving
senator.”

“SERAP is also seeking an order compelling Mr
Dariye to return all salaries and allowances paid to him as a senator while in
prison, having not performed the
functions and office of a sitting and serving senator and having
not deservedly earned such.”

“Unless the reliefs sought are granted, Mr
Saraki and the National Assembly Service Commission will continue
to act in flagrant defiance of the
judgment of the court, the independence and authority of the court,
and the rule of law. It is in the interest of justice to grant this
application as the Defendants have nothing to lose if the
application is granted.”

No date has been fixed for the hearing of the
suit.

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