BY WASHINGTON OSA. OSIFO, ESQ.
It is no longer news that the defection of politicians from one party to another has almost become the new normal in Nigeria. Political loyalty and fidelity has become an expensive and intangible precept, better confined to the early days of politics and democracy in the Country. Yet, it may not be so correct as political party switching dates back even to the first republic; however, when viewed from the perspective that party switching appears more permissible in a parliamentary system of government than a presidential system of government, then, the “sins” of the first republic pales in huge significance to the gale of defections now witnessed in the Country today. This treatise re-examines the nagging issue of political party switching in Nigeria, but with a special focus on defection or party switching amongst elected legislators in the Country, whilst using the recent incidence of the defection by 7 members of the Edo State House of Assembly, who were elected on the platform of the All Progressives Congress (APC) to the Peoples Democratic Party (PDP).
1.2 The Main Course
Clearly, political party switching has almost become a norm in our present day democracy. It has been rationalized on the right of members as Nigerian citizens to associate freely, without let or hindrance from any individual or institution. More often, the fundamental right to the freedom of association as enshrined in Chapter IV, particularly section 42 of the Constitution of the Federal Republic of Nigeria , 1999 (as amended), is often bandied as the “excuse” for this seemingly display of political “prostitution”. Some have also argued that the non-inclusion of the provision for independent candidacy in our Constitution and the Electoral Laws makes it an inevitable consequence for persons seeking the platform for the advancement of their political ambition, to move from one party to another. Similarly , the near absence of internal democracy in the big parties in the Country, with the resultant emergence of hydra headed leadership in some of these parties have often led to the precipitation of crisis and its attendant fall out of factionalization of political parties and ultimately the defection of members of such political parties.
However ,as shall soon be demonstrated, whilst these and many other reasons can be proffered for party switching by members of a political party, the same should not hold water for “politicians” who either being elected or appointed into political offices by the political party they now seek to leave and join another. More importantly, elected political office holders who were elected into the offices they occupy, should not be able to bandy the same reasons or excuses for their defection as would the ordinary or “floor members” of their political party. This is why it has become imperative to once again re-examine the moral, legal and constitutional basis for elected political officers to renounce membership of the political parties on which platform they contested and won election into the office, defect to another party, but insist on retaining the office they occupy.
There are sound reasons why elected political officers ought and should vacate the office they occupy, once they defect to another political party. One of the most plausible is that as resolved in the Amaechi v INEC Case, it is political parties and not the individual candidates that contest elections. There is no provision for Independent Candidacy in the Country. By the provisions of the 1999 constitution of Nigeria as amended, the role of political parties in the sponsorship of candidates for any electoral seat is a mandatory requirement ( See Sections 221 -229 on the registration and role of political parties). Specifically, by virtue of section 177(a)-(d) of the Constitution on the qualifications of persons seeking election into the office of a Governor of a State, membership of a political party and sponsorship for that office are some of the qualifying pre-conditions. Furthermore, by virtue of sections 106(e) of the Electoral Act, 2010 it is expressly provided that for a candidate to be qualified for election into the office of a Governor of a State, he must be sponsored by a political party. To underscore the importance of political parties in this regard, the Electoral Act made profuse provisions for the procedure for the selection of candidates for elective positions by the political parties.(see section 87(4) (b) (i)-(ii) of the Act in the case of a Governorship candidate). In addition, the Act also made elaborate provisions for a redress mechanism for persons who feel short-changed in the selection process of their political party.(see section 87 (9) and (10) of the Act).
It is against the backdrop of similar provisions in the Electoral Act of 2007, that Rt.Hon .Amaechi as a supposed candidate for election as Governor of Rivers State on the platform of the P.D.P approached the Courts in 2007. His main grouse was that he was the original candidate nominated by the party and whose name was forwarded to INEC as its candidate for the said election, but just before the election his name was substituted with that of Mr. Celestine Omehia. Evidence at the trial revealed that it was the said, Mr. Omehia that campaigned under the platform of the party, stood for the election and was declared the winner of the said election. He was subsequently sworn into office as the Governor of the State before the Supreme Court’s judgment.
In the landmark decision, whilst the Supreme Court found as a fact that Amaechi’s name was wrongfully dropped as the party’s candidate, having been done without “cogent and verifiable reason”, it was also confronted with the naked fact that Amaechi never contested the said election and was not elected as the Governor of the State. However, in its epoch making decision, the apex Court held that it was political parties that contest elections in the Country and not candidates. In the words of the Court:
‘Now Section 221 of the 1999 Constitution provides, “No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election of any candidate at an election” The above provision effectually removes the possibility of independent candidacy in our elections, it places emphasis and responsibilities in election on political parties. Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in section 221 above only political parties that canvass for votes, it follows that it is a party that wins elections……’(Per Oguntade JSC at 317, Paragraphs F-H)
Therefore, the electoral fortunes inure to the political parties and not its candidates. It was on this premise that the Court was able to “subrogate” the rights of the party, P.D.P to Amaechi and declared him the rightful candidate and winner of the said election. The Court refused to order a fresh election, because in its view the election had been won by his political party. In the words of the Court:
Having held as I did that the name of Amaechi was not substituted as provided by law, the consequence is that he was the candidate of the PDP for whom the party campaigned in the April 2007 elections. Amaechi must be deemed the candidate that won the election for the PDP. In the eyes of the law, Omehai was never a candidate in that election much less a winner……I accordingly declare Amaechi the person entitled to be the Governor of Rivers State’
Therefore, applying these principles aforesaid, it is my humble submission that the jurisprudence on election in Nigeria today, is that it is political parties that contest elections and not their candidates. The candidates are best described as agents or surrogates of the political parties with respect to the said election, and the office they hold and enjoy in trust for the party as a result of such an election. Therefore, as was the case when in 2013 five PDP Governors decamped to the APC, the Court ought to have declared their seats vacant or order them to resign from office. It is the failure of the Courts to do the needful at that material time, that emboldened the Governors of Benue and Sokoto States in 2018 to jump-ship from the APC to the PDP, contest re-election on the platform of the latter party and today , they are posturing as “elected” Governors of their states. It is my considered opinion that the umbrage supposedly given in the equally epoch making decision of the apex Court in Alhaji Atiku Abubakar v Chief Olusegun Obasanjo & Ors, (which said decision made it possible for the then President and Vice-President to belong to two different parties in a supposed joint ticket) was anachronistic to our supposed copied, United States of America styled Presidential System of Government. It is inconceivable that today President Donald Trump will be in the Republican Party and his vice, Mike Pence will defect to the Democratic Party. It is this ugly precedence set out in the Atiku’s Case that culminated in the ugly incidence in Ondo State where a Governor and his Deputy, that were elected under the joint ticket of the APC , eventually contested against each other in different political parties at the just concluded election. I contend that this anachronistic situation was resolved by the Amaechi’s Case, which was decided after the Atiku Abubakar’s Case. One wonders why we have preferred to thrive on the earlier decision that has distorted democratic values.
1.3 Why the 7 Defecting Edo State Legislators Must Vacate their Seats as Members of the House
Whereas, the status of defecting members of the Executive arm of Government appears to be in a state of hiatus, that of the members of the legislature is firmly settled. The express and unambiguous provisions of sections 68(1) (g) and Section 109(1) (g) of the 1999 Constitution (as amended) is very clear and unambiguous on the issue that where a member of either the National or State legislature defects from the party that got him elected to another political party, he/she automatically losses his seat in the House. Specifically, Section 109 (1) (g) provides as follows: that a member of a State House of Assembly can lose his seat in the following circumstances:
(g) 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
It is therefore clear from the foregoing, that the only circumstance in which a member of the legislature can defect from his original political party to another party and retain his seat, is if the following scenarios play out:
(1) There is a faction or division in his original political party
(2) There is a fusion or merger of his original political party with another political party and a new political party emerges
(3) The faction of his original political party merges with another political party
However, in a bid to circumvent the full weight of sections 68(1) (g) and 109(1) (g) and take benefit of the proviso thereto, legislators who want to defect and retain their seats, often cite divisions or factions within their political parties as excuses. Whether such division or factions exist or not or it is a figment of their imagination. These groups of persons even bandy a simple leadership tussle within their political party as evidence of factionalization or division. They also would latch on disputes in a local or state chapter of the political party as an excuse. However , the Supreme Court in the landmark decision of Ifedayo Sunday Abegunde v Ondo State House of Assembly(2015) 61 NSCQR (Pt.3) 1857, had the opportunity to review its earlier decisions in Alhaji Mohammed Goni v Federal Electoral Commission (FEDECO) (1983) 8 SC 67 and Alhaji Atiku Abubakar v Olusegun Obasanjo (supra). The facts of this case are that the appellant was elected as a member of the House of Representatives representing Akure North/South Federal Constituency on the platform of the Labour Party. Midway into his tenure in office, he defected to the Action Congress (AC), citing a supposed division in the Ondo State chapter of the Labour Party. In order to protect his seat in the House, he suo moto commenced this suit seeking to validate his defection and retention of his seat on the basis of the proviso in section 68 (g), the equivalent of section 109(g) of the 1999 Constitution (as amended).
In dismissing his suit at the trial Court, the Court held that the “division” in the Labour Party bandied by the appellant was limited to Ondo State and not the entire Country, therefore, he could not take the benefit of the said proviso to section 68(g) aforesaid. His suit to the Court of Appeal similarly met a brick wall as the Court affirmed the decision of the trial Court. In his final appeal to the Supreme Court, the apex Court used the opportunity to review the earlier cases of Alhaji Mohammed Goni v Federal Electoral Commission (FEDECO) (1983) 8 SC 67 and Alhaji Atiku Abubakar v A.G of the Federation & Ors (2007) SC31/2007 Delivered on the 20th of April 2007) and whilst distinguishing these cases from the facts and circumstances of the case before it, it affirmed the con-current findings and decisions of the lower Courts and dismissed the appellant (Abegunde’s ) appeal. The Court held that since there was no division in Labour Party in the Country, the appellant was not entitled to rely on the said proviso in section 68(1) (g) of the Constitution. Accordingly , in consequence of his defection to the Action Congress (AC), he lost his seat as a member of the House of Representatives. In summing up the reasons for this decision, M.D Muhammad JSC, whilst delivering the lead judgment held as follows:
The principles enunciated in the two cases, FEDECO v Goni (supra) and A.G Federation v Abubakar (supra) is to the effect that only such factionalisation , fragmentation,, splintering or ‘division’ that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to section 68(1) (g) justify a person’s defection to another party and the retention of his unexpired term in the house in spite of his defection. Otherwise, As rightly held by the Courts below, the defector automatically loses his seat. In the instant case, the Courts below are right that Labour Party that has continued to function as a political party by meeting the conditions of Sections 221 and 222 of the Constitution must necessarily meet, cannot be to have been so factionalised, fragmented, split or divided to justify the defection of the appellant to another party and retention of his seat in spite of the defection. This remains the opinion of this Court on this issue
Additionally, in his concurring judgment, Galadinma JSC held inter alia:
Quite rightly, section 222 (a) (f) and € of the 1999 Constitution made no reference to the ‘Ward” “Local Government” or “State Structure”. However, a calm reading of section 68(1) (g) of the Constitution will show that no reference was made by the framers of the Constitution to a “State Branch’ ‘Ward Level” or ‘Unit Level’ of a political party in that section…..Therefore, contrary to the argument of the appellant at paragraph 29 of his brief, Section 222 (a) ( e) and (f) which referred to ‘National Officers ‘ ‘Geographical Area’ and ‘Headquarters in the Federal Capital Territory’ is to support the argument that a national outlook of a political party is intended by the framers of the 1999 Constitution in construing section 68(1) (g)……………This analogical deduction settles the contest between the parties , effulgently and effectually too; for the nature of the division envisaged in Section 68(1) (g) must be one that affects the total structure of a political party
Therefore , applying the ratio decidendi of this case to the scenario in Edo State, it is clear that it is going to be difficult for the seven legislators in question to latch unto the proviso to section 109(1) (g) for the following reasons:
(i) There is no division or factionalization of the APC at the National level, the Care-Taker Committee of the party headed by Alhaji Mai Buni, Governor of Yobe State remains the only recognized authority of the political party in the Country
(ii) The political party remains as one indivisible unit in all the 36 states of the Federation, including the FCT Abuja, all the State and Ward Chapters are still functioning
(iii) The Party fielded a sole candidate at the Edo State Governorship election, conducted by INEC on the 19th of September 2020, no other supposed faction of the party fielded or purported to field another candidate in the election
(iv) Assuming though not conceding that there is a “faction” or “division” in the Edo State chapter of the APC, on the authority of the Abegunde’s Case (supra), so long as the purported “division” or “faction” is not nation wide, it still does not suffice for them to take advantage of the proviso to section 109(1) (g) of the Constitution
(v) The party still functions and performs its function of sponsoring candidates at elections conducted by INEC in line with the provisions of sections 222 and 224 of the Constitution, hence , it successfully sponsored a candidate at the just concluded Governorship election in Ondo State.
Although, it remains morally and legally wrong for an elected political office holder to defect from political party that sponsored his election to another political party, it has remained the norm in Nigeria. Whereas, elected members of the Executive arm of Government can hide under the umbrella wrongfully supplied in Atiku’s Case, the case is not the same for members of the legislature. Their fate is firmly settled and sealed by the Abegunde’s case.
Therefore , the 7 members of the Edo State House of Assembly that recently defected from the APC to the PDP cannot retain their seats in the Edo State House of Assembly. Having decamped from the party on whose platform they gained election into the House, they must vacate the seats, because the seats rightfully belong to the APC, for whom they held the seats in trust for.
Accordingly, and in the light of the aforesaid, the All Progressives Congress (APC) is advised and enjoined to do the needful and activate the legal process to reclaim its seats from these 7 renegade party men. Nature abhors vacuum and it is trite that you cannot eat your cake and still have it back.
It is therefore hoped that whenever this suit is filed the Courts would do the needful and right the wrong these defected 7 legislators are wont to perpetuate in Edo State.
Washington Osa. Osifo, Esq. is a member of the Edo State House of Assembly representing Uhunmwode constituency.