UMAHI’S CONTEMPTUOUS OUTBURST

Ebonyi governor’s recent flareup highlights the need for a clearer anti-defection law writes Bolaji Adebiyi

Reacting to his removal from office by the Federal High Court, Abuja, Dave Umahi, governor of Ebonyi State, said the judgment was a hatchet job by a judge who was bought. He contended that the judge lacked the power to oust him and vowed not to vacate his seat, adding that he had written a petition to the National Judicial Council against the judge.

Justice Inyang Ekwo had on Tuesday delivered a judgment removing Umahi and his deputy, Kelechi Igwe, as well 16 members of the state House of Assembly from office for defecting from the Peoples Democratic Party that sponsored them in the 2019 general election to the All Progressives Congress.

Relying on section 221 of the 1999 Constitution as altered, Ekwo said Umahi and his colleagues lost their offices having left the PDP that sponsored them for the APC. According to him, they had abandoned the mandate given to them because the votes that brought them to office were cast for the PDP and not them.

Opinions have since differed on the merits of the decision of the court with senior lawyers standing at far ends of the divide. Every student of foundation law class knows that whereas a judgment is subject to academic, even public, reviews, it remains the law until overturned by a superior court. And that such reviews must be decorous. Had Umahi been properly briefed by his counsel about this, he would have been less contemptuous of the court. The Nigerian Bar Association had immediately intervened on behalf of the judge and had asked the governor to apologise for his outburst that was generally found to be unbecoming of a person holding a high public office.

But Umahi is a typical Nigerian big man and politician with little or no modicum of respect for rules and institutions. Clearly lacking in integrity, they accuse others of what they routinely do in the dark but cannot do in the open. Umahi complained that the judgment must have been bought simply because the outcome was against him. Yet he has a couple of other judgments in his favour. What he has not told the people was that he was aware of this instant case, which was filed in November 2020 but failed to defend it. And it is a basic law that where issues are not joined prayers so unchallenged are deemed admitted.

Umahi understandably relied on section 189 of the constitution, which lays down the conditions for the removal of the governor and the deputy from office, to vilify the Ekwo ruling but conveniently ignored section 221 of the same grundnorm that establishes the dominance of political parties.  No association, other than a political party, it says, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.

There are several case laws, from Rotimi Amaechi to James Faleke, upholding this provision of the constitution that what is voted for in an election is the political party and not the individual candidate. So, in 2007 the Supreme Court declared Amaechi who was not on the ballot, the winner of the election on the ground that in the eyes of the law, he was the candidate of the party.

There are two recent validations of this principle. In 2016 the apex court held that Yahaya Bello who was not on the ballot could inherit the votes of the APC’s Abubakar Audu who died before the final declaration of results. And in 2019, the highest court having voided all the votes cast for the APC in the Zamfara State governorship election ordered the Independent National Electoral Commission to declare the candidates of the party with the majority of the remaining votes as the winner of the elections.

The point, therefore, is that the principle applied by Ekwo in this instant case is not new even though some senior lawyers have expressed reservations about it having regards to section 189 of the constitution without due consideration for the moral and legal implications of section 221. In other words, should a mandate given to a political party be transferred to another political party without recourse to the people who gave the mandate?

This question would appear to have been answered in the negative by sections 68 (1) (g) and 109 (1) (g) of the constitution which forbid legislators from crossing the carpet. The latter, which is more appropriate to the 16 state legislators, states, “A member of a House of Assembly shall vacate his seat in the House if being a person whose election to the House of Assembly 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.”

As clear as this provision is, many legislators at the federal and state legislatures have switched allegiances without any consequence. Interestingly, in the same Ebonyi State when the lawmakers crossed the carpet to the APC, nothing happened. But when three of them returned to the PDP their seats were declared vacant. What was the logic behind that?

The question Umahi and his cohorts in the legal community should answer is why would the constitution frown upon cross-carpeting in the legislature but permit it in the executive? Should it not be obvious that the framers of the constitution did not foresee the situation where a governor would jump ship while in office?

Whatever is the case, what needs to be done now is for the anti-defection bill before the National Assembly to be speedily considered and incorporated into the constitution in order to make it clear that this odious behaviour of mandate abandonment is not permissible in both the executive and legislative arms of government.

Adebiyi, the managing editor of THISDAY Newspapers, writes from bolaji.adebiyi@thisdaylive.com