Election and Defection: Who Owns the Votes? (Part 2)

The Old Order Regarding Defections (Continues)

Introduction
Last week, we commenced dissecting cases on the old order regarding election of candidates and their subsequent defection to other political parties after taking the Oath of Office and Oath of Allegiance. The old order theorises that such a Governor and Deputy Governor lose their seats (AMAECHI v INEC (2008) LPELR-446(SC)). We also commenced analysing the case of FALEKE v INEC (2016) 18 NWLR (Pt 1543), whose facts, purport and intendment have been serially corrupted and polluted by analysts and commentators. Today, we will attempt to continue righting this wrong by further analysing FALEKE, to show that it never held that a Governor must lose his seat for defecting to another political party. Thereafter, we shall discuss the new order of things which is categorical that a Governor cannot be removed from office for defecting. Kindly follow me.

The Faleke Case
In the FALEKE CASE, the Apex Court also considered paragraph 14 of the INEC guidelines, on when a return shall not be made where the margin of win between the two leading candidates is not in excess of the total number of registered voters of polling units where elections were cancelled or not held. The Apex Court had therefore dismissed the appeal, by holding that the APC candidate (Yahaya Bello), who was duly substituted by the APC after the death of Abubakar Audu (who had died before the rerun election), could take the benefits of the votes already cast at the governorship election before Audu Abubakar suddenly died.

From the facts of the FALEKE CASE, the Apex Court never decided that the seat of the Governor of a State, or the seat of a member of a legislative body shall be declared vacant and substituted with the candidates of another political party for defecting to another political party. The judgement merely validated the substitution of a candidate by a political party, to conclude an inconclusive election wherein it had an interest, without more. The judgement is to the effect that the candidate (Yahaya Bello) who was duly substituted for the deceased Abubakar Audu, could take the benefits of the votes; not the APC as a political party. So, the authority is even against the argument of those who usually cite it in support of elected executives losing their seats for defecting. I genuinely believe they have not read the facts of the case, with a view to appreciating its import and purport.

The New Trend
The new order or trend of decisions by appellate courts, led by the Supreme Court itself, is that votes no longer belong to political parties, but to flesh-and-blood natural persons, who are live human beings. Political parties are now deemed to be mere vehicles that candidates ride in, to win elections. They act as mere agents that canvass, garner and gather votes for the candidates. Many analysts hate to hear this. This is however, not my personal opinion. Personally, I do not like it. My writings on this issue over the years, which are available on the internet with a simple push of the button, show my abhorrence for cross-carpeting. I have always argued that it is wrong, immoral, unconscionable and unhealthy for our democracy, to simply watch elected officials defect from their political parties on whose platform they ascended to office and perch on others. I loathed and I still loathe it.

I believe it is grossly unfair, for a political party to work assiduously for a candidate and watch him desert it midstream. But, as a constitutional Lawyer and one who took oaths of office during my call to the Bar (1981), and during SANship elevation day (2010), to defend the Nigerian Constitution and the legal profession, I cannot trash the Constitution. Nor can I claim to be wiser, or know better than the Supreme Court, which had blazed this trail. It held in AG FEDERATION v ABUBAKAR & ORS (2007) LPELP-3 46, that defection is “immoral, unconscionable and painful, but not illegal”. The Apex Court went on, coram Onnoghen, JSC (as he then was), that:

“There is nowhere in the 1999 Constitution where it is stated that the President or Vice President of the Federal Republic of Nigeria shall be removed, or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party…1st Respondent is alleged to have defected or cross-carpeted to another political party. Although defection or cross-carpeting to another party or dumping the original party that sponsored one for election to a particular office which is created by the Constitution, or in the same vein, condemning or criticising that party or its members who by virtue of the same election hold some offices created by the Constitution, is painful, unconscionable, and immoral, it is however, not illegal. I cannot find any fault with the lower court’s adumbration on Section 40 of the Constitution of the Federal Republic of Nigeria, 1999, Chapter IV thereof, which guarantees a citizen of this country freedom of association. “It is manifest from the provisions of Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution that the makers of the Constitution intended to, and indeed, made punishable the defection of a member of the Senate, House of Representatives or a House of Assembly from the political party that sponsored him to another political party before the expiration of the period for which the legislative house was elected, by declaring the seat of such member vacant. However, no similar provision is made for the Vice-President or President.

In other words, if the makers of the Constitution had intended the Vice-President or the President to suffer the same fate as a member of the Senate, House of Assembly, they would have inserted such provision in the Constitution in clear terms…It seems to me that the latin maxims of expressio unius personae vel rei, est exclusion alterius or inclusion unius est exclusio alterius – when translated into English Language mean: the express mention of one person or thing is the exclusion of another or the inclusion of one is the exclusion of another; respectively are apposite here; see the cases of Military Governor of Ondo STATE v ADEWUNMI (1988) 3 NWLR ((Pt. 82) 280 and Attorney-General, Bendel State v Aideyan (1989) 4 NWLR (Pt. 118) 646 where the maxims were considered. Had the law-makers been minded that punishment or consequence of political cross-carpeting should be applicable to the President or Vice-President as they have done in respect of a member of the Senate or of the House of Representatives, or even a member of the House of Assembly in the aforesaid provisions of Sections 68(1)(g) and 109(1)(g) respectively which I have quoted supra, they would have stipulated same in an unmistakable term in Section 146 of the 1999 Constitution quoted above”.

In OZOMGBADI v AMADI & ORS (2018) LPELR 45152 (SC), the Apex Court left no one in doubt that it had since overruled Amaechi’s case decided 11 years earlier, when it held:
“…I believe the Supreme Court has laid to rest the contention that it is the political party which contests and wins an election. In CPC v OMBUGADU (2013) 18 NWLR (Pt. 1385), the Court was categorical that individuals as candidates win elections, and not the political parties.” Per MARY UKAEGO PETER-ODILI, JSC (Pp 48 – 49 Paras E.
Similarly, in CPC & ANOR v OMBUGADU & ANOR (2013) LPELR-21007(SC), decided over six years after Amaechi’s case, the Apex Court had departed from the earlier stance in Amaechi’s case, to the effect that votes belonged to a political party, not candidates.

The Supreme Court, with great lucidity, specifically set aside Amaechi’s case. It held as follows:
“Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms: “An election tribunal or court shall not under any circumstance declare any person winner of an election in which such a person has not fully participated in all the stages of the said election.” By the above provision, the National Assembly has set aside the decision of this court in Amaechi v INEC (2008) 5 NWLR (Pt. 1080) page 227 at 296. Contrary to the decision of this court in Amaechi’s case, the implication of Section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting”.

The Supreme Court in the above case thus interpreted Section 141 of the Electoral Act 2010 (as amended), now strengthened by Section 285 (13) of the Fourth Alteration to the Constitution, to the effect that votes belong to a candidate, not to the political party that sponsored him in an election. (To be continued).

Serious and Trivial
“The difference between APC and PDP is stated hereunder;
National Chairman, Abdullahi Adamu, (PDP decampee).
National Secretary, Iyiola Omisore, (PDP decampee).
National Women Leader, Betta Edu, (PDP decampee).
Barr Ahmed El-Marzuk, National Legal Adviser, (PDP decampee).
Uguru Matthew Ofoka National Treasurer, (PDP decampee).
Senator Abubakar Maikafi, National Auditor, (PDP decampee).
Barrister F.N. Nwosu, National Welfare Secretary, (PDP decampee).
Deputy National Chairman South East, Emmanuel Enukwu. (PDP decampee).
Muazu Bawa Rjau, National Vice Chairman North-Central, (PDP decampee).
Mustapha Salihu, National Vice Chairman, North East, (PDP decampee).
Barrister Festus Fuanter Deputy National Secretary, (PDP decampee).
Nze Chidi Duru, Deputy National Organising Secretary, (PDP decampee).
Where are the so-called founding members of the APC?
Dem de PDP
See the PDP line up.
Iyorchia Ayu — National Chairman, (APC decampee)
Taofeek Arapaja — Deputy National Chairman South, (APC decampee).
Umar Damagum — Deputy National Chairman North, (APC decampee).
Samuel Anyanwu — National Secretary, (APC decampee).
Ahmad Mohammed — National Treasurer, (APC decampee).
Umar Bature — National Organising Secretary, (APC decampee).
Kamaldeen Ajibade, National Legal Adviser, (APC decampee).
Ibrahim Abdullahi, Deputy National Publicity Secretary, (APC decampee).
Hajara Wanka, Deputy National Women Leader, (APC decampee).