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‘If apex court upholds removal of governors for defection, we’ll have strong political institutions’

By Joseph Onyekwere
12 April 2022   |   4:17 am
The Judgment of the Federal High Court, delivered in the action filed by the PDP against the governor Umahi, his deputy, Dr. Eric Kelechi Igwe, the APC and the Independent National Electoral Commission ...

Olatunji SAN

Abiodun Olatunji, Senior Advocate of Nigeria is a partner at Abdullahi Ibrahim & Co. In this interview with JOSEPH ONYEKWERE (Deputy Editor), he shares his views on the novel decision that ordered the removal of governor Dave Umahi of Ebonyi State, controversial section 84(12) of the Electoral Act, 2022 and the rejection of special seats for women by the House of Representatives.

A Federal High Court, Abuja recently ordered Governor David Umahi and 16 lawmakers of Ebonyi state to immediately vacate their offices due to defection from the Peoples Democratic Party (PDP) to the All Progressive Congress (APC). What lesson(s) should politicians learn from this judgment?
The Judgment of the Federal High Court, delivered in the action filed by the PDP against the governor Umahi, his deputy, Dr. Eric Kelechi Igwe, the APC and the Independent National Electoral Commission (INEC), is currently being tested at the Court of Appeal and whatever the decision of the Court of Appeal would be, a further appeal to the Supreme Court for a final determination of the issues would certainly be made by any of the parties to the action. The same goes for the judgment of the Federal High Court in a separate action filed by the PDP against 16 members of the Ebonyi State House of Assembly who defected alongside the governor and his deputy.  So, it is imperative that we wait to see how the pendulum will swing at the appellate courts. 

Suffice to say at this point that the decision of the Federal High Court was like a bolt from the blues. Nobody saw it coming. 
 
This is so because no governor has been removed from office by judicial order on the grounds of defection, since the return of democratic rule in 1999. This was notwithstanding the fact that there had been several defections by governors from the party that sponsored their election to the opposition party. The fact that no governor had been sanctioned by way of removal from office for defecting from the party on the platform of which he got to power to another party had emboldened many governors to defect or threaten defection at the slightest provocation or even where there is absolutely no reason to justify such defection or threat of defection. 

 
You will recall that in the build up to the 2015 general elections, about five of the then sitting PDP governors pulled out of the party, the party that sponsored their elections – to join the newly registered APC without suffering any legal consequence. Interestingly, one of the five governors then is the current Minister of Transportation. He was at the time, the governor of Rivers State.  It was in the course of his judicial battle to regain his mandate from Celestine Omehia, the candidate that the PDP presented for election to the office of governor of Rivers State in 2007 and who was returned elected and sworn in as Governor of Rivers State, that the Supreme Court in its decision stated clearly that it is the parties that contest and are voted for during elections and not the candidates. 
  
It was on the basis of that that the Supreme Court ordered that Amaechi, who did not campaign as a candidate for election to the office of governor of Rivers State in 2007 be sworn in as the duly elected governor of Rivers State, being the validly nominated candidate of the PDP that won the election.

When Amaechi and others defected and nothing happened, it was a signal, albeit, dangerous one, to others that future defections will go unpunished. Similar defections happened during the 2019 general elections. It is, therefore, a political event that has come to be associated with every general election in Nigeria. When the governor of Ebonyi defected to the APC, what reason did he give?  He said he was defecting to the ruling APC because the PDP, which sponsored his election, has not guaranteed that its presidential ticket for the 2023 elections will be given to a candidate from the South East. That has nothing to do with good governance, it has nothing to do with the provision of dividends of democracy to the good people of Ebonyi State, it has nothing to do with the implementation of the manifesto of the PDP, which the people of Ebony bought into and on the basis of which they voted massively for the PDP and its candidates. 
  
It simply shows that the governor defected in pursuit of his personal ambition. He had since gone ahead to inform Mr. President of his desire to succeed him in 2023. The 16 members of the State House of Assembly, who defected with him did not do so because they were convinced that the APC manifesto is superior to that of the PDP or has more to offer the people of Ebony or because they believe that the APC will handover its presidential ticket for the 2023 general elections to a candidate of an Igbo extraction. They defected with the governor because they knew from experience that if any of them should take a principle stand against him, such a member is not only dead politically, but dead and buried financially. So, for them, it was a question of political and financial survival. 
  
The control that the governors have on members of States Houses of Assembly is unbelievable. In fact, virtually all the States’ Houses of Assembly owe their survival to total submission to the whims and caprices of the governors. They sit only to give legislative approvals to what the governors have decided.
  
Talking about lessons for politicians, I should say that politicians are poor students of history. They are only concerned about the spoils of the office. It matters not to them what negative effect or outcome a particular decision will have as long as such decision meets the political exigency of the time. What is paramount for the average politician is that his interest is protected. Sadly, it is not the interest of the people but the parochial and self-centered interest of the political class. Once that assurance is secured, what comes next is in the womb of time. 

 
Should the Supreme Court, when eventually the matter is brought before it, go ahead to confirm the decision of the Federal High Court, our path to constitutional democracy, strong political institutions and virile party system would have been cleared of all the mines that these defections constitute. If on the other hand, the Law Lords decide otherwise, a constitutional amendment to make it illegal for an elected governor to abandon the party that sponsored his election will become imperative if we are to continue on the path of constitutional democracy that we have chosen.
 
What could be the implications of this judgment to other governors and lawmakers who have defected?
As it stands today and until the appellate courts decide otherwise, the implication of the judgment for other governors and lawmakers who abandoned the party that sponsored their elections is that they are in the same position as Dave Umahi of Ebonyi State and the 16 lawmakers. That means that they are no longer entitled to retain their offices as governors and legislators. Having said that, it is imperative that we wait and see how the appellate courts settle all the legal issues that this judgment has brought up. This is very important, given that the question of tenure and removal from office of an elected executive governor is a constitutional matter. 
  
A governor can only be removed from office in accordance with the provisions of the Constitution.  Section 180 and 188 of the 1999 Constitution of Nigeria respectively provides for the tenure and removal from office of the Governor of a State. Anything done contrary to the provisions of the Constitution is null, void and of no effect at all. So let’s wait.
 
Moments after the judgment, governor Umahi made scathing remarks against the trial judge, alleging that he had put the judiciary on trial. What is your reaction to that?
 Interestingly, the National leadership of the NBA had strongly rebuked the governor and his unwarranted vituperations on the judge and the Judiciary. Although the governor later denied ever attacking the judge or ridiculing the judiciary, his denial notwithstanding, his widely reported vile reaction to the judgment showed the level of his arrogance, contempt for the judiciary, the rule of law and how power drunk he is.
  
Ironically, it is the same judicial process that he has employed through the exercise of his right of appeal, to put in abeyance, pending the determination of his appeal, the effect of the judgment and order of Justice Inyang Ekwo. On whether or not Justice Inyang has powers to sack the governor, I will only say that the judicial powers of the federation vested in the courts extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings related thereto for the determination of any question as to the civil rights and obligations of that person. If in the exercise of that judicial power, Justice Inyang Ekwo in the determination of any question brought before him in accordance with due process of law, finds on the facts, applicable law and judicial authorities that the governor should be removed from office, he will be justified to make such order and heaven will not fall. If governor Umahi is removed from office, he will not be the first governor to be removed by an order of court. He will only have the unenviable record of being the first to be so removed on ground of defection from the party that sponsored his election to another party.
 
Prior to this judgment, a High Court in Abakaliki had dismissed a similar suit challenging the defection of the governor and his deputy. What is your take on the conflicting judgments coming out from same court of equal jurisdiction?
 It is rather sad. I blame both the political class and some pliable members of the bench. The political class in their desperation to cling on to power at all cost will do anything to achieve their purpose, including forum shopping for judicial determination of their political cases. Unfortunately, there exists in the judiciary, especially on the bench, individuals who are open to compromise and who are either in awe of the powers of the executive, or in gratification of their financial or economic desires, are ever prepared to do the biddings of the politicians. You must not lose sight of the fact that the High Court of Ebonyi State, which sat in Abakaliki and dismissed a similar suit, could possibly not have reached a different decision given the prevailing circumstance and the crushing weight of political influence that governors exercise over the administration of justice in their respective states. That is one of the reasons financial autonomy in the real sense of it, for the judiciary is a sine qua non for the administration of justice that commands the respect and trust of the people. For as long as governors continue to play prominent roles in the appointment of Judges and the funding of the judiciary, citizens will continue to express doubt in the quality of judgments such as the one that emanated from Abakaliki and Umuahia in Ebonyi and Abia States recently.
  
There is, however, a ray of hope. The National Judicial Council (NJC) recently meted out appropriate sanctions to members of the bench, who were adjudged to have been found wanting in the exercise of their judicial discretion. The judges that have been disciplined will serve as a deterrent to others who are still within the system that they have nowhere to hide. The system will smoke them out. I must, however, add that judges only decide matters based on facts placed before them.  Where facts are suppressed, the courts can do little except the suppressed facts are subsequently brought before the court in which case, the same court has the power to set aside its order, which has been made on the basis of the suppressed facts.
 
Although rejected, President Muhammadu Buhari had written to the National Assembly, seeking the amendment of section 84(12) of the newly signed Electoral Amendment Act, 2022. What do you think about it?
The President can propose an amendment to any law at any time by sending an executive bill to the National Assembly for consideration and possible approval by way of enactment. Section 84 (12) of the Electoral Act, 2022, which the President wants the National Assembly to amend has now been struck down by an order of the Federal High Court, which ruled same as unconstitutional. The decision of the Federal High Court has attracted varied commentaries, while some respected legal minds have condemned the decision as being gravely erroneous, in view of existing judicial interpretations of the relevant provisions of the Constitution, the Attorney-General of the Federation, who is the Chief Law officer of the Federation has hailed the decision as sound and represent the extant constitutional order.

My take on it all is that there is an order of the court, which struck down Section 84 (12) of the Electoral Act, 2022, until that order is set aside by a superior court of competent jurisdiction, Section 84 (12) as at today is not part of the Electoral Act, 2022. As to the policy rationale behind the lawmaker’s insertion of the provision of Section 84 (12) (now deleted by an order of the Federal High Court), I see it more as the political actors playing their games.  It is all about survival. Those who inserted the provision are only concerned about protecting their interest and not the interest of the masses of this country, while those opposed to it are simply not comfortable with the advantage that the political appointees will by virtue of their position in government, including access to public fund, power and influence, have over their challengers, who do not have access to state resources. I think we need to focus more on how to reduce the level of poverty among our people, by creating jobs, funding education more and encouraging our children to go to school, so as to raise the literacy level and by extension political awareness, which ultimately will de-emphasise and whittle down the influence of money and power play in our political contest.
 
The House of Representatives recently rejected a bill seeking to provide special seats for women at the National Assembly, in political party administration and inclusion of at least 10 per cent affirmative action in ministerial appointments. What is your take on this?
The initial votes of the House of Representatives to reject the bills on indigeneship, citizenship and 35 per cent affirmative action for women was rather a sad one. It is, however, gratifying that the House had since rescinded its earlier decision and has now voted to recommend the bills for consideration as part of the proposed amendments to the Constitution. Nigerian women deserve better treatment. They are the ones that attend party meetings, campaigns and vote during elections but unfortunately, they have the least representation in government and party administration. The bill on citizenship seeks to amend Section 26 of the Constitution to provide for citizenship by registration for foreign spouses of Nigerian women, while the bill on affirmative action seeks to amend Section 223 of the Constitution to ensure that at least 35 per cent of political party offices are constitutionally guaranteed for Nigerian women. These two bills and the bill on indigeneship, which seek to allow women to become indigene of their husbands’ states after five years of marriage should immediately be passed by both chambers of the National Assembly and concurred to by the states. Citizenship for the foreign spouses of our women, indigenship of the states of their husbands and 35 per cent seats in the administration of political parties should be guaranteed as fundamental rights for our women. They deserve no less.

citizenship and 35 per cent affirmative action for women was rather a sad one. It is, however, gratifying that the House had since rescinded its earlier decision and has now voted to recommend the bills for consideration as part of the proposed amendments to the Constitution.