The recent judgment which sacked Governor Dave Umahi of Ebonyi State has raised a fresh controversy over the lack of constitutional provision on the defection of state governors.
There are expectations that the pending cases of Governors Dave Umahi (Ebonyi), Ben Ayade (Cross River), and Bello Matawalle (Zamfara) will ultimately be determined at the Supreme Court and, indeed, by an amendment of the constitution.
In the very famous judgment of March 8, Justice Inyang Ekwo of the Federal High Court, Abuja division, ruled that the votes cast for the PDP in the governorship election of March 9, 2019, are not transferable from the PDP to the receiving APC.
The judge also ordered 16 members of the Ebonyi State House of Assembly who defected alongside the governor on November 17, 2020 to vacate their seats.
He said the speaker of the state assembly who defected along with the other members had made the application of Section 109(1)(g) and (2) impracticable for him to give effect on declaring their seats vacant.
“It is not expected that the speaker will preside over affairs concerning defection when he is part of the defectors.
“I see their act of defection as a blatant confrontation of the constitutional order with the intent that they could employ technical defence to justify their decision,” he said.
The governor further ordered the lawmakers to forfeit all salaries and allowances collected from the period of defection, November 17, 2020, to date, to the government coffers.
However, the court could not find the “political party division” grounds for the vacating of the seats for lawmakers captured under Section 68(1)(g) of the Nigerian Constitution.
While the above provision is in the constitution, another judge of the Gusau division of the Federal High Court, Justice Bappa Aliyu, on February 9, dismissed a similar suit seeking to remove Governor Bello Matawalle for defecting from the PDP to the APC.
The judge held that the suit lacked merit and that there is no provision in the 1999 Constitution (as amended) that states that a governor will lose his seat whenever he defects to another party other than the political party upon which he was elected.
For his part, Mike Ozekhome (SAN) is arguing that defections are a democratic right to freedom of association as provided under the Nigerian Constitution, 1999, maintaining that the votes cast for a governor and deputy are for them as individuals and not the political party.
He said, “By virtue of Section 40 of the 1999 Constitution, it is unconstitutional to deny a citizen of Nigeria the right to opt out of any political party, or the right to join or belong to any political party, trade union, or any other association for the protection of his interest provided that the political party is recognised by the Independent National Electoral Commission.”
He said a governor or deputy cannot be sued under Section 308 of the Nigerian Constitution, 1999.
He submits that the Supreme Court has since laid to rest the question of whether the president or vice president (and by parity, governor and deputy governor) can defect from the original party that sponsored them during the election to another party. This was the case of AG, Federation v. Atiku Abubakar (2007) 10 NWLR (Pt.1041) 1, 29.
He said the apex court decided the matter in favour of Atiku because the “law is that the vice president could only be removed from office by reason of death; or when he is succeeded after spending 4 years in office; or through removal from office by impeachment proceedings under section 188 of the 1999 Constitution. Indeed, the apex court held in that case that the power to remove the president and vice president (and by party governor and deputy governor) is provided for in Section 143 of the Constitution (read section 188 in the case of the governor and deputy governor).”
Similarly, Sole Egbeyinka Esq said the case of Atiku in 2007 supports the position that a defecting governor cannot be removed from office, maintaining that the law on fundamental rights to freedom of association applies to the governors’ scenario.
“If you want to remove a governor, it cannot be because he defected; if he was impeached, that is different, or if the governor is late or cannot discharge his functions because of incapacitation, that is a different thing entirely,” he said.
However, Femi Falana (SAN) said the defection of Atiku Abubakar often cited by lawyers showed that the Supreme Court has been consistent in condemning defections and cross-carpeting contrary to their claims.
Falana said the leading judgment of the court by Justice Akintan JSC said ‘The action cannot be justified by the fact that he (1st respondent) had been suspended or expelled from the ruling political party under which he was jointly elected with the president or that he was exercising his fundamental right of association guaranteed by the constitution. What is required of him is to first resign and even after resigning from that office, he would still be precluded from dissociating himself from the collective responsibility for decisions taken by the cabinet while he was in office.’
Falana said while a governor exercised his freedom of association by decamping, and while the governor’s freedom of association is constitutionally protected, he cannot be permitted to infringe on the democratic rights of the voters.
He called on the legislature to make laws for votes to count in the country, maintaining that “The members of the National Assembly and the various state legislative houses should take advantage of the ongoing constitutional review to put an end to the subversion of the wishes of the electorate by compelling political leaders who decamp from the political parties on whose platform they were elected to resign from office forthwith.”
Similarly, Hameed Ajibola Jimoh Esq said the raging issue of defection by governors has highlighted the gap in the law, adding, “We hope that the current situation would have convinced the lawmakers of the need to bridge the gap in that regard.”
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