How National Assembly lawmakers sustain unconstitutional defection

As the drama over the gale of defections, especially between Peoples Democratic Party (PDP) and All Progressives Congress (APC), continue to unfold in the polity, it is becoming clearer by the day that the action is not out of patriotism, but selfish political interests, survival and relevance of the politicians.

The timing of the defections and inactions show a lack of principle, trust and morality. And being lawmakers, it is either they lack knowledge of the law or they intentionally and hypocritically decide to undermine it. With the spate of defections in the National Assembly from 1999 to 2007 when Chief Olusegun Obasanjo was president and its attendant consequences on the opposition politics, democratic growth and ideology, the legislative body amended Section 68 of the Nigerian Constitution ahead of 2011 elections to minimise the rate of decamping among lawmakers in states and National Assembly. Section 68 of the 1999 constitution (as amended) states the condition that warrants the seat of a lawmaker to be declared vacant.

Specifically, section 68 subsection 1(g) of the constitution stipulates that a member of the Senate or that of the House of Representatives shall vacate his seat if his election to any of the two chambers was sponsored by a political party and he or she later chooses to become 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.

With this, many Nigerians have expected that the gale of defections among National Assembly members, especially close to every general election year, would reduce drastically. But, such expectations were dashed in 2014, when the then Speaker of the House of Representatives and now Governor of Sokoto State, Alhaji Aminu Tambuwal and other 42 PDP members of the House defected to the APC ahead of 2015 general elections, citing leadership crisis in the PDP at national level.

The Presidency under Goodluck Jonathan and the PDP national leadership approached a Federal High Court in Abuja, asking Tambuwal and other defecting members to vacate their seats. Delivering judgment on the matter, Justice Adeniyi Ademola held that there was no division in the PDP to qualify the legislators to defect and continue to retain their seats in line with the provisions of section 68 (1) (g) of the 1999 Constitution. Tambuwal and the others quickly challenged the judgment at Appeal Court, arguing that the decision of the Federal High Court was “perverse” and not supported by the reliefs sought by the PDP.

They insisted that the trial judge “erred in law when he granted reliefs not sought by the plaintiff,” adding that the judgment “is against the weight of evidence.”They stressed that Justice Ademola erred when he granted the reliefs sought by the plaintiff and went further to hold that the respondents ought to have resigned their seats as members of the House of Representatives.

Furthermore, the appellants argued that the judge was wrong when he held that the reliefs sought by the PDP in the suit were justiciable and proceeded to grant them without considering the provision of section 30 of the Legislative Houses (Powers and Privileges) Act Cap L12 Law of the Federation of Nigeria 2004.The section provides that “neither the President nor the Speaker, as the case may be, of a legislative house shall be subjected to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing orders of the Constitution.”

The appellants argued that trial judge wrongly assumed jurisdiction over the suit, which they insisted was an internal affair of the House.They further argued that the House was protected under Section 60 of the Constitution.In the same vein, they contended that the trial judge was wrong in holding that the suit was rightly commenced with originating summons without regard to the provision of Order 3 Rule 6 of the Federal High Court Civil Procedure Rules 2009.

The appellants argued that the suit filed by PDP was an abuse of the court because there were similar cases involving the same parties, still pending before it.
While the legal battle lingered, the 2015 polls were conducted and Tambuwal emerged governor of Sokoto State on APC platform and President Jonathan lost the presidential election to Muhammadu Buhari of the APC. The case stopped there.

However, that was not the case in the matter between Labour Party and a member of House of Representatives representing Akure North/ South constituency, Hon. Ifedayo Sunday Abegunde. He was elected on the LP’s platform in the Seventh Assembly. He defected to the then Action Congress of Nigeria (ACN) before the end of his tenure, citing a division in his state chapter of the Labour Party.

In a preemptive move, Abegunde sued his former party at the Federal High Court, Akure, urging it to, among others, deem his defection as proper, to enable him retain his seat. He lost at the trial court, the Court of Appeal and up to the Supreme Court.A seven-man panel of the Supreme Court, headed by then Chief Justice of Nigeria (CJN), Mahmud Mohammed, in its judgment on April 17, 2015, ruled against Abegunde, to the effect that his claim of a division in the chapter of his party in his state did not qualify as the division envisaged under Section 68(1)(g) of the Constitution.

In the lead judgment, Justice Musa Dattijo Mohammad noted that it was only a division that made it “impossible or impracticable” for the party to function by virtue of the provision of Section 68(1)(g) of the 1999 Constitution that “justifies a person’s defection to another party.”

Justice Muhammad added: “The principles enunciated by this court in the two cases of FEDECO v Goni supra and Attorney-General of the Federation v Abubakar supra, are to the effect that only such factionalisation, fragmentation, splintering or ‘division’ that makes it impossible or impracticable for a particular 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 seat for the unexpired term in the house in spite of the defection.”

Despite the unambiguous constitutional provisions on when a defection is proper and clear interpretations of these provisions by the Supreme Court, its application has, in most cases, been subjected to the whims of the leadership of the National Assembly.Before the current wave of defections rocking the National Assembly ahead of 2019 general elections, Zaphaniah Jisalo (Abuja Municipal Area Council /Bwari Federal Constituency of the Federal Capital Territory) and Ahmed-Tijani Damisa (Okene/Ogori-Magongo Federal Constituency in Kogi State) who were elected on PDP platform defected to APC last year. Their defection made PDP’s members in the House to demand that they vacate their seats.

When the issue was raised on the floor of the House, PDP Minority Whip, Umar Barde demanded that the seats occupied by Jisalo and Damisa be declared vacant in view of the provision of Section 68 (1g) of the constitution, and since the party was no longer divided after the Supreme Court’s resolution of the leadership dispute between Ali Modu Sheriff and Ahmed Makarfi.

The Chairman of the House Committee on Ethics and Privileges, Osai Nicholas Ossai (PDP, Delta), spoke in a similar vein and urged Speaker Yakubu Dogara to invoke Section 68 of the Constitution and declare the defectors’ seats vacant. Dogara declined to accede to the PDP members’ call, but instead, argued that their reliance on Section 68 (1g) to demand that the defectors’ seats be declared vacant was insufficient, adding that the constitution did not define what constituted a division in a political party.

The Speaker was quoted as arguing: “Division in a political party is not defined by the constitution. The constitution does not state whether it should be at the national, state or local government level. So, we should allow the judiciary to do its job.”

Now that the Senate President Bukola Saraki and others have defected from APC to the PDP, why is the ruling party now asking him to resign his position? If before now and with the connivance of the National Assembly leadership, defecting members of National Assembly have retained their seats, despite Supreme Court judgment on the matter before now, what is wrong with the ongoing defections among National Assembly members ahead of 2019?