• Judicial warning to defectors
• Umahi, deputy, others receive first shot of warning

Nigeria’s electoral jurisprudence, on Tuesday, March 8, 2022 went on trial once again, following the decision of Justice Inyang Ekwo of the Federal High Court, Abuja, to sack Ebonyi State governor, David Umahi and his deputy, Dr. Kelechi Igwe, from office.

The controversial judgment comes barely three months after the National Judicial Council (NJC), through its chairman and Chief Justice of the Nigeria (CJN), Justice Tanko Mohammad, reprimanded three judges for delivering conflicting rulings.

Justice Ekwo had, while delivering his judgment on a suit filed by the Ebonyi State chapter of the Peoples Democratic Party (PDP), held that the total number of 393, 042 votes garnered by Governor Dave Umahi during the 2019 governorship poll could not be transferred to the All Progressives Congress (APC) after the governor defected from PDP.

The Court, therefore, held that Umahi and Igwe should vacate their offices, even as it tasked the Independent National Electoral Commission (INEC) to receive from PDP a new set of governorship and deputy governorship candidates to take their places.

Justice Ekwo said the move from the PDP to the APC was illegal and unconstitutional. The judgment followed suits marked FHC/ABJ/CS/ 920/21 and FHC/ABJ/CS/ 1041/21, filed by the PDP seeking the removal of the governor and his deputy from office for abandoning the party.

Justice Ekwo said the depositions of the 3rd and 4th defendants (Umahi and Igwe) in their counter-affidavit were “evasive and insufficient” to competently challenge the plaintiff’s originating process. 

It was the opinion of the court that the “Immunity Clause” in section 308 of the Constitution is not absolute.

“Section 308 is a veritable constitutional shield,” the court said, adding that it was not inserted for political reasons. 
Umahi and his deputy had filed a notice of preliminary objection challenging the suit by the PDP, arguing that Section 308 of the 1999 Constitution provided immunity to them from the plaintiff’s suit and that votes cast during the said elections belonged to them and not the plaintiff, going by the provisions of the Electoral Act, 2010 and recent Supreme Court pronouncements.

However, the court disagreed with them and held that Umahi and Igwe did not controvert the deposition that total votes scored in an election belong to a political party.

Justice Ekwo said evidence abound that the 2nd defendant (APC) contested the Ebonyi State Governorship election held on March 2019, with its own candidates. 

“It can be noted that the Constitution does not deal with the issue of defection lightly.

“The 3rd and 4th defendants cannot transfer the votes and victory of the plaintiff on March 9, 2019, to the APC. Office of the Governor and Deputy Governor of Ebonyi state belongs to the PDP. 

“The option for Umahi and Igwe is to vacate office and wait for the next election to contest election under the platform of their new party,” the court declared. 

The court added that the act of the APC, Umahi and his deputy is aimed at dismantling the 1999 Constitution. Consequently, the court held that the plaintiff won the majority of votes during the election and is entitled to enjoy same till end of tenure of office for which the election was made.

The PDP had, in an originating summons, asked the court to make a declaration that by defecting from the party on which they were sponsored and elected as governor and deputy governor of Ebonyi State, to the APC, a political party that did not win the election, they have resigned or deemed to have resigned from office.

Other defendants in the suit were the Independent National Electoral Commission (INEC) and the All Progressives Congress (APC).
Justice Ekwo also directed the 16 lawmakers of the Ebonyi State House of Assembly members who defected with the governor to the APC to accordingly vacate their seats. 

Justice Ekwo held that the votes’ cast for PDP in the election and those for the House of Assembly were not transferable to the APC.

Justice Ekwo, in a separate judgment in a suit by the Peoples Democratic Party PDP, ordered the Speaker of the House of Assembly and his co-defectors to immediately stop holding themselves out as members of Ebonyi State House of Assembly.

Justice Ekwo, in opening a new vista in Nigerian political landscape, has also signed a judicial warning to defectors and political nomads.

Judicial warning to defectors
THAT ideology based politics is long cremated in Nigeria is an understatement. Nigerian politics is a gross example of ‘political nomadism and chicanery of barbarity.’

Nigeria’s return to democracy in 1999 ushered in a great hope of democratic dividend and heralded a rare opportunity for the country to launch a new democratic strategy, after years of military dictatorship. However, the way and manner politicians in Nigeria defect from one party to the other has not only constituted democratic nuisance, but has continued to raise serious concern among political observers and participants in Nigeria.

The rate at which Nigerian politicians’ defect from one party to another depicts political immaturity, ideological confusion and total lack of sense of direction within the political class.

Many have argued that political parties in Nigeria are utterly bereft of ideology, so, defections are not driven by ideological differences but self-interested calculations. For instance, in 2015, as soon as President Goodluck Jonathan conceded the election to General Buhari, PDP members began to decamp to the APC in droves.

The spate of defections was so incessant that the then national chairman of APC, John Oyegun, issued a statement urging PDP members to “stay in their party”, adding that the gale of defections “is not good for political development”.

A chronicle of defection under President Olusegun Obasanjo’s Fourth Republic has as its high point the cross carpeting of the former Vice President, Alhaji Atiku Abubakar. He was a founding member of the PDP, and defected to the Action Congress (AC) after a running battle with Obasanjo. In 2007, he contested the presidential elections on the platform of AC, but lost to the late President Umaru Yar’Adua. A few months to the 2011 General elections, Atiku went back to the PDP, where he contested the presidential primaries.

Prior to Atiku’s defection, Ondo and Edo States witnessed cross carpeting of members of the opposition parties to the party of the incumbent governor. Edo State witnessed a large defection of members of the PDP to the AC, which is the governor’s party.”

In the case of Ondo state, there was a mass political nomadic movement of PDP members to the Labour Party (LP) of which the incumbent governor is a member. In both cases, the cross carpeting were an aftermath of political battles and in fighting. We must not forget that today’s Ondo state still led by the Labour Party elected Governor has again redirected its way back to the PDP in another round of political nomadic movement.

Political nomadism in Nigeria obviously is not exclusive to state governors or the executive arm alone, recently it has become more evident in the legislature.

Umahi, Deputy, others receive first shot of warning
HOWEVER, Justice Ekwo’s ruling ran counter to a similar judgment delivered on February 7, by Justice Bappa Aliyu of Federal High Court, Gusau, in a suit filed by PDP challenging the defection of Governor Bello Matawalle from PDP to APC.

Justice Aliyu, while declining jurisdiction to entertain the matter, however, noted that being “neither a pre-election nor post-election case, the 1999 Constitution of Nigeria does not prohibit a governor from defecting from a party.” He added that the constitutions of APC and PDP also do not make it unlawful for a governor to defect to any other constitutionally recognised political party operating within Nigeria.

“If it were a pre-election case, it (the case of defection) should have been filed before an election petitions tribunal, as the Federal High Court lacks jurisdiction to handle it,” the Zamfara State Federal High Court held.

But neglecting the Constitutional stipulations, which his brother Judge in Zamfara cited, Justice Ekwo went into mathematics of the governorship election.

For instance, Section 188 of the 1999 Constitution as amended provides for conditions before an executive governor can be removed from office, providing that “the Governor or Deputy Governor of a state may be removed from office in accordance with the provisions of this section.

“Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly, stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.”

The constitution did not contemplate the defection of a governor from one political party to another and therefore remained silent on the matter, thereby providing a lacuna for for politicians to explore.

Chief Mike Ozekhome (SAN) said, “neither a governor nor deputy governor can be removed from office by a court of law for defecting from his political party to another.”

He said, “shredded of all legal and factual details, the judgment cannot stand the acid test of constitutionalism, nor pass the furnace of appellate courts scrutiny. This is because the tenure of office of a Governor and his Deputy are constitutional matters.

“Perhaps, the Jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously. He may also not have been availed of the clear provisions of sections 180 and 188 of the 1999 Constitution..

According to him, it is not only the registered voters of a political party that cast their votes for a President, Vice President, Governor or Deputy Governor. His words: “Many non-politically partisan persons also vote; just like opposition party members who may prefer a particular candidate even though not in their party. It is therefore not correct to hold that votes scored by a candidate belong to a political party and therefore not transferable. The courts have since gone over the era of Amaechi V. INEC, where the Supreme Court had held that votes cast in an election belong to a political party. Section 141 of the Electoral Act, 2010, also altered that section, by providing that for a candidate to become Governor, he must have participated at all stages of the election. This includes primaries and the general governorship election.”

Ozekhome said votes belong to individuals, not political party. “The appellate courts have since held again and again that votes cast in an election belong to a live candidate, and not the political party, which merely serves as a vehicle that enthrones candidates,” he explained.

He noted that the apex court has since laid to rest, the question of whether the President and Vice President (and by parity, Governor and Deputy Governor) can defect from the original party that sponsored them during election to another party. This was the case of AG, Federation v. Atiku Abubakar (2007) 10 NWLR (Pt.1041) 1, 29.

“Briefly, the facts of this case are that Abubakar Atiku (then Vice President) entered into a frosty relationship with his boss, President Obasanjo, after both had been sworn in on May 29, 2003. Atiku then resigned from the PDP and joined the Action Congress (AC) whilst still in office as Vice President. Obasanjo would brood none of this, as he promptly declared Atiku’s seat vacant as Vice President of Nigeria. Atiku, being aggrieved, sued the Attorney General, the IGP and INEC, by way of originating summons at the Court of Appeal.

“After briefs were exchanged and argument proffered, the intermediate court unanimously held in favour of Atiku. It held that Atiku could defect without losing his seat. Dissatisfied, the A.G and others appealed to the Supreme Court, which unanimously dismissed the appeal.

“The law is that the Vice President could only be removed from office by reason of death; or when he is succeeded after spending four 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 parity Governor and Deputy Governor) is provided for in section 143 of the Constitution (read section 188 in the case of Governor and Deputy Governor).

“Going by the above plethora of authorities, I humbly submit that a Governor already sworn in cannot be removed by the Federal High Court through an originating summons. It will surely be set aside on appeal,” he declared.

Another lawyer, Jerry Aondo, described the judgment as commendable. He expressed optimism that the decision stands the test of time to preserve the political morality of Nigeria in line with the 1999 Constitution.

“The judgment is in line with the law, logic and good reasoning. Though, it might be seen by some as a political witch-hunt I disagree with it,” he said. He explained that under Section 68(1)(g), the governor defected from the PDP to APC without any evidence that there was division or a major split in the PDP.

He said the so-called Section 80 of the Electoral Act of 2011 (as amended), which the court relied upon to pass its verdict, recognises a political party as one corporate entity.

“Even if there was a division in the party as at the time he defected, the position of the Constitution states clearly that such defection must be one that affects the entire structure of a political party.

“The aim of the so-called provisions of section 68 was placed as a safeguard to punish the actions carried out by politicians and to address this unwanted tradition of cross-carpeting,” he stated.

Former president, Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu said a governor, couldn’t justifiably leave the party that sponsored him, regardless of his constitutional right to freedom of association under section 40 of the constitution.

He, however, added that the governor, in his opinion, has not violated any constitutional condition or any law being that as at the time he was elected, he was a member of the PDP and the party sponsored him.

“A new vista of judicial interpretation has emerged, arising from the result of the PDP to situate ones and for all, the already established principle that election into executive arm of government in Nigeria is through the vehicles of political parties and not necessarily through individual candidates. And therefore, where a governor and his deputy have been elected through a particular political party, the judgment seeks to make a point that such a governor cannot justifiably leave that party regardless of his constitutional right to freedom of association under section 40 of the constitution. It is somewhat different from what we have with respect to the legislature, members of which can decamp from a particular political party to another in an event of a proven division and chaos in the party on the basis of which they got elected into the parliament.

“But the challenge, for which I am sufficiently convinced that this matter will proceed on appeal, is the language of the law. I am referencing section 177 (c), which is to the effect that a person shall be qualified to the office of a governor if amongst others, he is a member of a political party and that political party sponsors him. It could be argued that he has not violated any constitutional provision or any law.

“The constitution did not go ahead, as it did with respect to legislature to create a fresh circumstance in which it should be prohibited that such a governor occupying such executive position will be foreclosed or prevented from defecting to another political party. The question can be validly asked; what offence has he committed? At the time he defected to APC, what was necessary to meet the benchmark was that he must belong to a political party and he belonged to the PDP; a political party must sponsor him and the PDP sponsored him. Now, he has moved to the APC. Did the constitution say he must not move to the APC?

“That is why I started by saying the decision has introduced a new vista in the jurisprudence of our electoral processes and I am hopeful that the Supreme Court will have the opportunity to deal finally with the matter,” he explained.

The former Dean, Faculty of Law, Imo State University, Owerri, Prof Nnamdi Obiaraeri, asked, “what kind of jurisprudence is the judge exploring? I don’t know why the judge came to that conclusion, but if it is on the ground that a party wins election and not the candidate, that will be exploring one limb of the Siamese relationship between the party and its candidate. That jurisprudence is obtuse and inchoate. The party wins election quite all right, but if you go into the jurisprudence of electioneering, the certificate of return is not issued to the party, but the candidate of the party, which is the ultimate signpost of the conclusion of an election.”

According to Obiaraeri, what it means is that the constitutional requirements that outlined the qualifications of a candidate that would be sponsored by a political party do not hold water. “This is because, the constitution says if you want to be the president of Nigeria, you must be 35 years old, you must not have been bankrupt, you must not be insane and a political party must sponsor you! Does a party go for screening? But a party that does not sponsor a candidate cannot win election.

“The decision is too radical and a troublesome departure from the wordings of our constitution. It is only section 68 (1) (g) that deals with defection. The only people caught in that provision web are members of the legislature. And they can even defect if there is a split or division in their political party. Defection is not one of the conditions under which a governor can be taken out of office,” he emphasised.

The don recalled,that the first known act of defection involving a sitting governor was in Imo State, where governor Ikedi Ohakim moved from Progressive People’s Alliance (PPA) to PDP.

“So, the jurisprudence that we know and we are very comfortable with is that you cannot use the spirit of the law to bring in something that is not expressly captured by the Constitution. The Constitution is not in support of that judgment. There is nowhere the Constitution said if you jump out of your party as a governor, you vacate office. There is nowhere you can find that in our constitution. And earlier judgments of the Supreme Court, with due respect do not support the thinking,” he asserted.