Senior Advocates Disagree over Constitutionality of Governors’ Defection

• Cross-carpeting breaches constitution, judicial precedents, say Daudu, Falana
• Ozekhome disagrees, says any governor can cross-carpet to another party

Gboyega Akinsanmi

Senior lawyers yesterday disagreed over the constitutionality of the decision of some governors, who defected from the political party that nominated them for elections to another political party, citing different judicial precedents and sections of the 1999 Constitution (As Amended) to buttress their positions.

While a former President of the Nigerian Bar Association (NBA), Chief Joseph Daudu (SAN) and Nigeria’s foremost human rights lawyer, Mr. Femi Falana (SAN) argued that the decision of the governors breached the country’s extant laws, another fiery human rights lawyer, Dr. Mike Ozekhome (SAN) claimed that they did not contravene any law for dumping their parties.

In separate interviews with THISDAY yesterday, the senior lawyers canvassed these divergent positions, though unanimously described the decisions of the governors that dumped their parties as ethically and morally wrong.

Three governors, who were elected on the platform of Peoples Democratic Party (PDP), had defected to the ruling All Progressives Congress (APC) in the last seven months, citing divergent reasons to justify their decisions.

The governors are Ebonyi State Governor, Chief Dave Umahi who defected to the APC on December 7, 2020; Cross Rivers State Governor, Prof. Ben Ayade, who dumped the PDP on June 1 and Zamfara State Governor, Alhaji Bello Matawalle, who officially joined the ruling APC on June 29.

Matawalle’s decision had stoked stern consternation in the rank of the PDP stalwarts. As a result, the highest hierarchy of the main opposition party had concluded a plan to challenge the constitutionality of Matawalle’s decision before a court of competent jurisdiction.
In response to THISDAY’s inquiries, Daudu provided a basis for the illegality of the decisions of some governors to defect from the political party that nominated them for election to another political party.

Daudu, first, pointed out that it “is a political party that contests for an elective office in Nigeria. Ordinarily, the political parties sponsor candidates so as to contest for an elective office, i.e., presidency and vice presidency, governor and deputy governor, federal and state legislators etc.

“This position has been settled by section 221 of the Constitution and in the decision of the Supreme Court in the Rotimi Amaechi and James Faleke cases,” he said.
Consequently, the senior advocate said: “We can safely say that it is a political party that can in the context of the question lay claim to an elective office.
“One can add as a rider that in the context of a challenge to a return made by INEC at the close of an election, both the candidate and political party are entitled to challenge or defend the result of the election.”

He, therefore, said: “I do not see any provision of the law that allows cross-carpet or defection by winners of elective offices as designated by the 1999 Constitution or any other statute.
“A thorough examination of the 1999 Constitution will show that defection from one political party to another in the course of the tenure of such political office is not within the contemplation of our legal system for the following reasons.

“Firstly, the law expressly stipulates that it is a political party that contests an election in Nigeria and not a candidate. Secondly, the electorate chose the candidate at the election through the logo of the party.

“Thirdly, the determination or claim of victory at an election accrues to the party and not the candidate, thus it is said that Party ‘A’ is in power and Party ‘B’ is in opposition.”
On these grounds, the senior advocate argued that if an occupant of elective office “defects from his original party, the consequences can be far-reaching (devastating) and have the effect of giving power to a party or group in a manner not contemplated by the Constitution.

“In this country, power can only be secured through the ballot box i.e., democratically. Section 1-(2) of the Constitution provides thus: ‘The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution’.

“Having noted that defection has the effect of transfer of power and control of government (federal and state), it is clear that the Constitution disapproves of any other way of acquiring power or control of a state or the federation as a whole, except through the ballot box,” he pointed out.

He, thus, argued that election, as far as the 1999 Constitution is concerned, “is the only method of acquiring political power in Nigeria. Defection or carpet crossing is a subterfuge, ruse or stratagem not recognised by our fundamental law.”

Ordinarily, according to him, such an errant occupant of office should lose his seat or office, but he cannot be deemed to have vacated the office unless the appropriate courts declare as such.
However, he lamented that those defecting at this point in time “have programmed it accurately. They know that the wheels of justice grind very slowly in Nigeria and even if the cases are launched expeditiously, it may take at least a year or even more before they can be resolved one way or the other.

“Even at that, the horse would have bolted the stable as the manoeuvres and skirmishes for the 2023 general election would have been concluded.
“Notwithstanding the foregoing, it is morally and ethically reprehensible to leave the party that sponsored the occupant of the office and cross over to the opposition’s camp,” Dauda noted with disappointment.

Falana, who largely shared the position of Daudu, historically pointed out that political prostitution was prohibited in the Second Republic by the 1979 Constitution.
Aside, the human right lawyer noted that the Supreme Court frowned at the crass opportunism of some politicians who wanted to engage in cross carpeting by abandoning the political parties that sponsored them before the expiration of their term of office.

He, however, said when Alhaji Atiku Abubakar decamped from the PDP to the Action Congress (AC) in 2006, the apex court curiously held that he was exercising his freedom of choice to the detriment of the voters that elected him as part of the Obasanjo presidential ticket.

He said: “That was how the apex court opened the floodgate for political prostitution under the current political dispensation. But other cases decided after the Atiku case appear to have altered the state of the law on the vexed issue of cross carpeting.

“In the case of Amaechi vs INEC that was decided in 2007, for instance, the Supreme Court held that elections are won by political parties. In the appeals arising from the governorship election petitions in Zamfara and Bayelsa, the Supreme Court specifically held that the elections were won by the PDP.”

On the basis of the clear pronouncement of the Supreme Court, Falana strongly argued that some of the governors who recently decamped might be removed from office if they are challenged in court of competent jurisdictions.

Just two years ago, Falana pointed out that the Supreme Court held that the PDP won the governorship elections in Cross River and Zamfara States.

On the basis of such categorical judicial pronouncement, Falana argued that it could not be said that the APC “has turned round to win the same governorship elections.”

Falana, however, observed that the law “is settled in the case of legislators who decide to decamp,” which according to him, was settled in the Section 68(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria.

The section, thus, states: “A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if being a person whose election to the House was sponsored by a political party, he becomes a member of another political 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…”

He, also, cited the celebrated case of Abegunde v Labour Party, noting that the Supreme Court held that a legislator “cannot decamp if there is no evidence that the political party that sponsored him is fictionalised and broken into two or more factions.

“To that extent, the legislators who recently decamped from the PDP to the APC and vice versa are deemed to have forfeited their seats in the parliaments because both political parties are not fictionalised. Such legislators are required by law to contest afresh under their newly found political parties.”

Ozekhome, however, disagreed with both Daudu and Falana, noting that the Supreme Court “has since overruled the decision in the Rotimi Amaechi vs Celestine Omehia case.”

Ozekhome, also, pointed out that Section 140 of the 2010 Electoral Act (As Amended) “has cancelled that decision. That section says for any person to win any election must have participated in all stages of the election.”

Consequently, the senior advocate argued that victory “no longer belongs to the political party, but the individual that wins the election. Without an individual, a political party cannot win an election. I have not heard of any political party that feeds a goat or a sheep for an election.”

He observed that the apex court “has said in many new decisions up till last year that it is an individual’s life and blood that contests an election, not a political party.

“Under the Electoral Act, however, both political party and individuals can go to court and challenge the legality of an election. But the question is: who takes the benefit?

“It is still the individual. It is based on this principle that I used in the Bakura constituency election in Zamfara State. I just won that election three weeks ago.

“I used this principle that the individual, who was contesting election in the APC, was not the candidate who participated during the election. And the tribunal agreed with me,” he observed justifying the decisions of the governors that defected.

He noted that the issue of governors cross-carpeting from one party to the other started long ago, even in the First Republic. This practice has always been there during the time of Chief Obafemi Awolowo, Alhaji Shehu Shagari, Dr. Nnamdi Azikwe, Mallam Aminu Kano, Alhaji Tafawa Balewa, Chief Ozumba Mbadiwe, Chief Dauda Adegbenro and Alhaji Ahmadu Bello.

Even before then, according to the senior advocate, the issue of defection had been there during the period of Sir Herbert Macaulay and Chief Ernest Okoli.

He, however, agreed that it was morally wrong for a governor “to defect from the political party that nominated him for an election to another political party after riding on the crest of that political party to win an election.

“The constitution says a political party must also be a candidate. On this ground, it could be morally wrong that such a person will leave his political party hard and dry and run to his political party. Some of them left for fear of being prosecuted or being probed by a vindictive ruling APC.

“That is as far as it can go. In terms of illegality and constitutionality, any governor can, legitimately, legally and constitutionally, cross-carpet from one political party to another.

“Umahi did it in Ebonyi State, and Heaven did not fall. In Cross Rivers State, Ayade did it, and Heaven did not fall. I did not see how Matawalle’s defection to the APC will suddenly make Heaven fall,” Ozekhome said.