Legal issues arising from defection of Gov Bello Matawalle

On the 11th of June 2021, Governor Bello Muhammad Matawalle of Zamfara State defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC) leaving behind his Deputy-Governor in the PDP.

Since then, all hell has been let loose in the PDP who have insisted that by reason of his defection, the Governor should vacate his office and that the Deputy-Governor should take his place.

This demand they have backed by a court action to enforce same. However, what is worrisome is the press release by the Publicity Secretary of the PDP-Kola Ologodiyan, calling on the said Deputy-Governor to forcefully take over the said seat of the Governor of the State. In the press release, he berated the Nigerian Police for resisting the violent and forceful attempt by the said Deputy-Governor to take over the seat. Whilst, these actions of the said Deputy –Governor and his counselor –Kola Ologbodiyan borders on the offences of treason and shall be dealt with later, it is proposed in this segment of this paper to interrogate the legality and constitutionality of the claim by the PDP that Governor Matawalle should vacate his office by reason of his defection from the PDP to the APC.

Constitutional provisions on the removal of a governor of a state from office

Whatever legal claim that the PDP might have over the seat of the Governor of Zamfara State can and should be domiciled in the four corners of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and not the whims and caprices of the party or the ipse dixit of its Publicity Secretary. More specifically, it must be asserted that the call by the PDP for Governor Matawalle to vacate his office or their assumption that his office has become “vacant” must be circumscribed within the confines of the provisions of the Constitution on the conditions or reasons for the removal of a governor of a state and not any other irrelevant or extraneous materials. Therefore, it may be asked, what are the circumstances wherein a governor of a state can be deemed to have vacated his office or he can be compelled to vacate his office?

Section 180(1) of the Constitution encapsulates the circumstances in which a governor may vacate his office.

Clearly, these are specific instances cognizable under the Constitution for the vacation of office by a governor upon the happening/occurrence of these events. However, with regards to what can be classified as a “compulsory” removal of a governor from office, Section 180(1) (d) opens a vista for other provisions of the constitution that provides for the removal of a governor from office. Accordingly, it is on this basis that Section 188 of the Constitution dealing with his impeachment and removal from office on the basis of a proven gross misconduct in office committed by him. Similarly, section 189 of the Constitution dealing with the removal of the Governor by the State Executive Council on the grounds of his physical or mental infirmity.

Accordingly, since by the combined effect of sections 180, 188 and 189 of the constitution, the circumstances in which a governor of a state can vacate his office or be removed from office are expressly and copiously stated, we submit that it is impossible and legally wrong for anyone to “import” into the constitution any other condition or circumstance for his removal outside those expressly stated in these sections. Thus, the express mention of these identified circumstances in the constitution means the express exclusion of any other one not so expressly mentioned- (expressio unius est exclusion alerius). This principle has been re-stated in the casesof Attorney-General of the Federation v Atiku Abubakar (2007) 10 NWLR (PT. 1041) 1, where the Supreme Court per Sylvester Onu, JSC in applying this rule of construction held as follows:

“Furthermore, I agree with the respondent that any interpretation of section 146 (3) (c) of the Constitution to bring in areas not mentioned in the Constitution is dangerous invitation to the court to make law rather than interpret it…”

Furthermore, the provisions of these sections are plain and unambiguous and therefore ought to be given their ordinary meaning that accords with the legislative intent or the purpose for the enactment of these provisions. Therefore, adopting the literal but purposive rule of construction, there is nowhere in these provisions that anything extraneous or in addition to the specific conditions/ circumstances in which a governor can vacate his office or be removed from office can reasonably, logically or legally be imputed. The courts have in a plethora of cases insisted that the purposive rule of construction is best adopted when interpreting the provisions of the constitution.

Interestingly, the fact that a Governor, Deputy-Governor or even the President or the Vice-President can only be removed from office in accordance with these specific provisions of the Constitution and nothing more, was firmly settled by the Supreme Court in the celebrated case of Attorney-General of the Federation v Atiku Abubakar (2007) 10 NWLR (PT. 1041) 1, Here, the then Vice-President of Nigeria, Atiku Abubakar had a running battle with the President-Chief Olusegun Obasanjo. In a bid to fulfill his ambition of contesting into the office of the President and succeeding his boss, Atiku decamped to then Action Congress (AC), a move which precipitated the then President to convoke an Executive Council Meeting, whereat, the office of Atiku Abubakar as the Vice-President of Nigeria was declared vacant. In his suit challenging his purported removal from office, the Supreme Court held firmly that the Vice-President of Nigeria can only be removed from office under the circumstances provided by sections 143-144 of the 1999 Constitution (the extant Constitution). In summing up the position of the Court Walter Onoghen JSC in his concurring judgment held inter alia:

“There is nowhere in the 1999 Constitution that it is stated that the President or Vice-President of the Federal Republic of Nigeria shall be removed or is removeable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party. It is the constitutional responsibility of the Legislature to make or amend the laws including the Constitution, where the need arises , while that of the Judiciary remains to interpret and apply the laws so made or amended. The courts can therefore not add or subtract from the law as enacted by the legislature under the guise of judicial interpretation of the constitution or statute………..”

We submit that this decision applies mutatis mutandis to the facts and circumstances of the defection of Governor Matawalle of Zamfara State from the PDP to the APC. So long as there are no similar provisions for the declaration of the office of a governor of a state vacant on account of his defection from the party that elected him to another as it is in Sections 68 (1) (g) of the constitution with regards to members of the State House of Assembly, it is not possible to insist that he (Governor Matawalle) must vacate his office as governor. The PDP cannot read into the specific provisions of the constitution what is not contained. We submit that the decision in A.G of the Federation v Atiku Abubakar (supra) remains the extant law, it has not been reviewed or whittled down by any other decision of the apex Court and therefore it remains an immutable binding precedent. Governors elected on the platform of the APC had in the time past decamped to the PDP, notably Governors Ortom of Benue State, Governor Tambuwal of Sokoto State and recently Governor Obaseki of Edo State, the APC did not cry wolf or try to reinvent the law as the PDP is trying to do now.

Hon Washington Osa Osifo, Ph.D

Writes from Benin City