Are there any divisions in the All Progressives Congress (APC) and the Peoples Democratic Party (PDP) to legally justify the recent defection of senators to other political parties? No, say legal experts. Senior Advocates of Nigeria (SANs) who spoke with The Nation said there is no division or merger in either APC or PDP, which are the constitutional bases for defection to another party by a lawmaker.
What the law says
Section 68(1)(g) of the 1999 Constitution (as amended) provides that a lawmaker can only defect where there is a division or merger in the party that sponsored him or her.
The section says: “(1) A member of the Senate or the House of Representatives shall vacate his seat in the House of which he is a member if- (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 the House was elected, provided that his membership of the latter 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.”
What about judicial precedent?
The Supreme Court has also given life to the section in the case of Abegunde vs. Ondo State House of Assembly & Ors (2015) LPELR-24588(SC) at PP 33 – 33 Paras C – E.
A member of the House of Representatives representing Akure South/North Federal Constituency of Ondo State, Ifedayo Abegunde, dumped the Labour Party (LP), which sponsored him, to the defunct Action Congress of Nigeria (ACN) in 2011.
In a unanimous decision by the seven-man panel led by the former Chief Justice of Nigeria, Mahmud Mohammed, the apex court held that a legislator’s defection to another party can only be justified if there is a division in the party’s national structures.
The Supreme Court held that Abegunde’s defection could not be justified since his excuse of purported division in LP did not occur at the national level.
The court noted that the “division” or “factionalisation” of LP cited by Abegunde as his excuse for abandoning the party was only at the state level.
Justice Musa Dattijo Muhammad, who read the lead judgment, held: “The principles enunciated by this court in the two cases, Fedeco v. Goni and AG Federation v. Abubakar, is to the effect that it is 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 seat for the unexpired term in the house in spite of the defection.
“Otherwise, as rightly held by the courts below, the defector automatically loses his seat.”
What the courts have said
The lower courts, relying on the Supreme Court judgment, have maintained that lawmakers cannot defect where there is no division in their party.
On March 21, Justice Taiwo Taiwo of the Federal Court in Abuja declared the seats of 20 Cross River lawmakers vacant over their defection from the PDP to the APC.
He ruled that their claim of rancour in the PDP was a ploy to mislead the court.
On April 22, Justice Donatus Okorowo of the Federal High Court in Abuja ordered former Speaker, Yakubu Dogara, to vacate his seat as a member representing Dass, Tafawa Balewa and Bogoro Federal Constituency of Bauchi State.
The judge declared that having defected from PDP to the APC, Dogara was no longer qualified to occupy the seat by virtue of Section 68(1)(g) of the constitution.
Why did the senators defect?
Most of the senators who left their parties did so after losing their party primaries. In a bid to return to the Senate, they defected.
The senators who left APC are Yahaya Abdullahi (to PDP), Adamu Aliero (to PDP), Ahmad Baba-Kaita (to PDP), Haliru Jika (to NNPP), Francis Alimikhena (to PDP), Ibrahim Shekarau (to NNPP) and Lawal Yahaya Gumau (to NNPP).
PDP senators who left are Albert Bassey Akpan (to Young Progressives Party (YPP), Kola Balogun (to APC), Ezenwa Onyewuchi (to LP) and Enyinnaya Abaribe (to All Progressives Grand Alliance (APGA).
Some gave no reason for defecting. Senator Jika simply stated in a letter addressed to the Senate President Ahmad Lawan: “I hereby wish to notify you of my defection from the APC to the NNPP whose ideals are in line with my political aspirations.”
Senator Onyewuchi stated that his defection to LP was “after due consultation with my family, constituents and supporters,” adding: “This will enable me to participate fully in the movement for a new Nigeria.”
Senators Abdullahi and Aliero, both from Kebbi State, cited a crisis in the party as their reasons for leaving, but also accused Governor Atiku Bagudu of frustrating the efforts of party members in the state.
Senator Abaribe said his decision was based on “illegality” in the PDP.
“This development is consequent upon the shameful display of illegality, impunity and undemocratic decision of the party and after due consultations with my constituents,” he said.
Does illegality amount to division?
A Senior Advocate of Nigeria (SAN), Chief Emeka Ngige, who is the Chairman of the Council of Legal Education (CLE), said claims of being maltreated by their parties or allegations of illegality or imposition of candidates by governors cannot be a valid basis for defection.
“The defections cannot be justified. Their reasons so far are that they were maltreated by their parties during the primaries. So, there is no division within the parties,” he said.
Ngige said the alleged “dictatorship” of the governors does not amount to division, adding that the senators are now victims of their refusal to endorse the direct primary method of choosing candidates.
“It can be argued that it was the senators that allowed the governors to hijack the process because if they had aligned with the House of Representatives that there should be only direct primary, the governors would not have hijacked the delegates.
“Everyone would have gone to test their popularity at their base. The issue of spending dollars to buy delegates would not have arisen.
“We had the same problem in the Nigerian Bar Association (NBA) when it was based on the delegate system, and people with deep pockets were hijacking the NBA election and buying delegates.
“We cancelled the delegate system and allowed every eligible lawyer to vote, which has in a way reduced the error of buying delegates and putting them in hotel accommodation. Now, it is based on electronic voting.
“So, the political parties should follow the NBA model. The National Assembly, before their term expires, should amend that Electoral Act to provide for direct primary and even electronic voting. It’s doable.
“If the village man now has an ATM card and goes to the bank to withdraw money, and has a mobile phone and can send a text message, what stops them from voting electronically? They should go for the direct primary by electronic means.
“Political parties that don’t have the facilities to do electronic voting should have their certificates withdrawn because they are not fit to be one.”
Can the senators who defected retain their seats?
The legal experts said the senators who defected to other parties are only retaining their seats because they have not been declared vacant.
They said it was left to the Senate leadership to declare their seats vacant, or for the parties or the Attorney-General of the Federation to take steps to declare their seats vacant.
Ngige: “What the presiding officers should do, both the Senate President and the Speaker, is to declare all the seats of those who defected vacant, including those of the PDP and the APC. The Senate leadership will then be seen to be neutral in the whole thing.
“Let the Independent National Electoral Commission (INEC) conduct another election to fill the vacancies before the next one. If there is none, let them work with those who are remaining.”
What is the legal consequence of defection?
Another SAN, Kunle Adegoke, agreed, saying there was no legal basis for the defections.
“There is no division in either of the two major political parties,” he said.
“I’m also not aware of any such division in the smaller parties that can justify a member of parliament to defect from a political party where he was elected to another party.
“A division that will justify it must be a division at the national level, whereby the leadership of the party has become completely polarised.
“At that point, a member of the National Assembly may defect without any consequence.”
Adegoke was of the view that the Senators who defected had lost their rights to remain as lawmakers.
He said: “Where a member of the National Assembly defects without any division, then he will have to vacate his seat because it belongs to the political party upon which platform he was elected.
“That is one of the grounds on which a member of parliament can be removed from his seat. An option available to the Senate leadership is to declare their seats vacant.
“Every institution has a duty to uphold the provisions of the constitution and to enforce them. Such a senator’s seat can be declared vacant.
“Where the leadership of the Senate fails to do so, a political party can take an action to court by mere originating summons to determine whether such a senator or a member of parliament can continue retaining his seat in the parliament after defecting.”
‘Law settled’
A former Ekiti State Attorney-General and Commissioner for Justice, Gboyega Oyewole (SAN), told The Nation that the law is settled on how a lawmaker can lose his seat.
He said: “In view of the unambiguous provision of the 1999 Constitution (as amended) and the well-considered judgment of the apex court in Ifedayo Abegunde v. Ondo State House of Assembly (Supra), any lawmaker who defects before the expiration of the tenure of the present National Assembly is deemed to have vacated his seat.
“The presiding officer of that House i.e. Senate President or Speaker of the House of Representatives is duly empowered to declare the seat of such lawmaker vacant.”
A constitutional lawyer Chief Mike Ozekhome (SAN) agreed with Oyewole.
He said the senators must be able to prove that there is a major crisis in the platform they were elected.
He said they must show there also exists a division within the party or that the party has merged with another one such as to have lost its original identity.
“They are subject to losing their seats if they cannot show these factors,” he said, adding, however, that they cannot be replaced without a by-election.
Why hasn’t the Senate leadership acted?
It behoves the Senate President and the Speaker of the House of Representatives to take the initiative to declare the defected lawmakers’ seats vacant.
But they may be facing a moral quandary or may have been hampered by other political considerations.
Ahmed Raji (SAN) said: “Since there is no division in the party, it is very difficult to see how those who defected can justify it. The aggrieved party can approach the court to say that the seats should be declared vacant.
“But the funny aspect is that it is both ways. Both APC and PDP are beneficiaries.
“None of the parties refused to receive the defectors because there is no basis for the defections.
“They are all guilty. They are all harvesting from each other.
“I wonder what moral authority either of them would have to go to court to challenge the other when they too are doing the same thing.”
‘It’s wrong for defected lawmakers to continue sitting’
Abiodun Owonikoko (SAN) said those who defected must not be allowed to remain in the House of Assembly as that would amount to impunity and a gross violation of the law.
He said: “The law on defection is fairly settled after the Supreme Court case on Ondo. In the absence of a faction, you are not allowed to cross-carpet or decamp.
“I’m not aware of a party that has a member in the National Assembly that has factions. Two reasons make it most disturbing that this trend has continued.
“All the parties just came out of their primaries. There was no case of one party having different forms of primaries as a result of ‘factionalisation’. So, factually speaking, I don’t see the reason for the defections.
“Second, if there is respect for rule of law, the moment a constitutional provision has been tested in court to the highest level and has been interpreted, you expect, of all persons, lawmakers who make the laws that the court interpret, to be at the forefront of compliance.
“But we’re now a country where impunity appears to be the norm.
“It is the prerogative of the heads of the parliament to take the step to have the seats of those affected vacated. I’m not too sure that the Senate President and the Speaker are living up to their oaths of office and the burden on them in this regard, and it is not good for the system.”
Owonikoko believes lawmakers who defected should not continue to represent their constituencies.
He said: “For those who have decamped, the honourable thing to do would be to cease to appear to represent their constituencies in the National Assembly.
“This is a good case in which the Attorney-General of the Federation ought to stand in and initiate steps to have the courts declare the seats of those who defected vacant.
“The blame is shared with three different organs: the actual culprits themselves, the person authorised by law to impose the sanction, and the chief law officer of the federation, who ought to take steps now – which should have been a straightforward thing, especially for those who have officially reported themselves on the floor of the parliament that they have decamped.
“It is an open and shut question. It’s a matter of obtaining the proceedings of those days and filing a straightforward originating summons in the Federal High Court to have their seats declared vacant.
“If you cannot do this basic thing, then we are not yet serious as a country that is governed by the rule of law and the constitution. I do not see anyone who does this who can claim to be a democrat.”
A lawyer, Abubakar D. Sani, was also of the view that those who defected have no legal basis for their actions.
“All legislators at all levels – not just the National Assembly – automatically lose their seats the moment they decamp.
“See Sections 68(1)(g) and 109(1)(g) of the Constitution and the appellate court decisions. That is all. There is nothing more to add.”