The political space is dominated by the debate over the propriety of Senate President Bukola Saraki retaining his position after his defection from the All Progressives Congress (APC) to the Peoples Democratic Party (PDP). In this report by ERIC IKHILAE, legal experts suggest the way out.
The ritual of mass defection by politicians before a general election has again taken the centre stage. Last week, there was a wave of defections from the ruling All Progressives Party (APC) to the Peoples Democratic Party (PDP)
It brought back the memory of a similar defection from the then ruling PDP to the then opposition APC before the 2015 general election.
Incidentally, the major players in both cases are the same. Senate President Bukola Saraki and then House of Representatives Speaker Aminu Tambuwal (now Sokoto State Governor) featured prominently as they led the 2015 defection from the PDP to APC, arguing that their interests were not well served. Today, they have returned to the PDP, singing a similar tune.
The latest defection, as was the case in 2015, has again thrown up some issues requiring to be properly addressed, if the nation is to build a sustainable and virile democracy that thrives on globally – established tenets of democratic governance.
Key among these issues is the need for a clear-cut determination of the right of a political office holder to defect from a party to another, and the need to also spell out what the political future of a defecting occupier of a political office should be.
Many argue that, while the question on the right to defect has been addressed by the Constitution and the various decisions of the Supreme Court in many cases, the question about the political future of a defecting political office holder has remained unaddressed.
The lack of precedent on how to deal with the political future of a defecting politician and the absence of a constitutional provision to that effect have now left the APC in a dilemma on how to confront the negative effect of Saraki’s defection to the PDP, with the crown of the Senate President safely ensconced on his head.
To many, the situation seems worse with the defection of the leader of the National Assembly to an opposition party, even though the APC was hardly in control of the Legislative arm before now, even when it paraded the majority of members, including Saraki.
Besides the right of every citizen to associate, as granted under Section 40 of the Constitution, the law also recognises, in Section 68(1)(g), the right of a political office holder, and, in this case, a legislator, to defect to another party.
Further in Section 68(1)(g), the Constitution spells out the right condition under which a legislator could defect from the party on which platform he/she was elected to the legislative house and still retain his/her seat.
It says: “Provided 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.
Supreme Court ruling on party division
The Supreme Court has, in many cases, the most recent being that of the Labour Party and Ifedayo Sunday Abegunde (Ondo State), interpreted the provision of Section 68(1)(g), particularly on what constitutes a division in a party.
Abegunde was elected to the House of Representatives on the platform of the Labour Party in the Seventh Assembly. He defected, in 2011, 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 the court 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, held 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 is 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, their application has, in most cases, been subjected to the whims of the leadership of the National Assembly.
The most recent cases are those involving 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).
Jisalo and Damisa, who were elected to the House of Representatives on the platform of the PDP, defected to the APC in 2017, prompting members of their former party in the House to demand that they vacate their seats upon their defection.
When the issue was raised in the floor of the House, its Minority Whip, Umar Barde (PDP, Kaduna) 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 PDP 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 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 the PDP members’reliance on Section 68 (1g) of the Constitution to demand that the defectors’ seats be declared vacant was insufficient, and added 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.”
Observers argued that with the reluctance of the leadership of the National Assembly to abide by the provision of the Constitution and the various court pronouncements on when a defecting legislator could retain his seat, it would be a herculean task for the APC to have Saraki surrender the position of the Senate President with his defection.
In the beginning
Indication that the Eighth National Assembly was going to be peculiar was discernible from its inception, particularly with the manner in which Saraki and Dogara emerged as President and Speaker of both legislatives house, which many saw as a break with tradition.
They emerged against the expectation of their party – the APC. And, for the first time since the reestablishment of democracy in 1999, Saraki’s alliance with the opposition PDP also cost his party the position of the Deputy Senate President.
Observers argued that by the manner he emerged as the Senate President, and his conduct since he assumed office, Saraki has not left anyone in doubt that he was never with the APC and that it was only the blind and political novice that thought otherwise.
They observed that for the first time in the nation’s political history, the Saraki-led Senate operated more as an opposition force, challenging and hindering the policies and decisions of the Executive rather than supporting them. They refer to the constant delay in the passage of the budget, the recurring cases of budget padding, the Senate’s reluctance to confirm presidential nominees, among others.
Observers contend that Saraki’s defection to the PDP and his decision to hand the Senate Presidency to the opposition are still part of his brand of politics, which the APC leadership must address with tact, particularly in the absence of precedent and clear-cut constitutional provisions on whether or not the ruling party must always produce the heads of the legislative houses.
They note that the closest the nation has witnessed before now was the case of Tambuwal, who defected to the APC from the PDP before the 2015 general elections, but refused, as is the case with Saraki, to surrender the Speakership position.
They added that the dilemma in which the APC finds itself would not have arisen had there been a constitutional provision to address such development or had there been a judicial pronouncement on the issue.
There is also the contention that the seeming political naivety on the part of President Muhammadu Buhari, who after winning the 2015 presidential election reportedly said he could work with whoever emerge as leaders of the National Assembly, contributed to the state of affairs.
Observers argue that a pragmatic and experienced politician would work to ensure that his allies emerge as key leaders of the Legislature rather than stay aloof, a decision that has come to haunt President Buhari, his government and party.
Before now
Critics of the grieving APC are quick to argue that history and the law are on their side in this. They have argued that no law prohibits any opposition party from producing the Senate President, Deputy Senate President, Speaker and Deputy Speaker once it is able to muster the majority to have its members elected for the positions.
They are also quick to cite instances before now, where members of political parties, other than the ruling ones, have led both houses of the National Assembly.
At the end of the 1979 general elections, the National Party of Nigeria (NPN), which won the presidency and majority of the seats in both the Senate and House of Representatives, could not meet the constitutionally required conditions to form government on its own. It went into an accord with the party that came third – the Nigerian People’s Party (NPP), led by Dr. Nnamdi Azikiwe.
Both parties entered into a power-sharing arrangement, which produced Joseph Ways of the NPN as Senate President and John Wash Pam, of the NPP, as Deputy Senate President. In the House of Representatives, NPP’s Edwin Ume-Ezeoke was made the Speaker.
However, when the accord broke down in 1982 prior to the next general elections, neither Pam nor Ume-Ezeoke resigned his position.
In 2015, PDP’s Aminu Tambuwal, who was then the Speaker of the House of Representatives held on to the position even when he defected to the APC.
Also, before Saraki left the APC with his hold on the Senate Presidency, the seat of the Deputy Senate President was already being held by a member of the minority PDP.
Lawyers divided
Critics argue that the constitutional provisions do not bar lawmakers from the minority political party in the parliament from seeking the position of Senate President, Deputy Senate President, Speaker or Deputy Speaker of the National Assembly.
They also note that none of the provisions stipulates that a Senate President, who becomes a member of a minority party should relinquish the position.
Although lawyers see Saraki’s failure to surrender the position of the Senate President despite the defection to the PDP from different perspectives, no one is yet categorical on any constitutional provision on the issue of whether or not a defecting Senate President, Deputy Senate President, Speaker and Deputy Speaker of the House of Representatives must relinquish the position upon his defection.
However, most arguments so far, that Saraki must relinquish his hold on the Senate Presidency, are mainly hinged on tradition, moral and ethical grounds.
Femi Falana (SAN) based his position on his contention that since Saraki and others’ defection is illegal, there being no legitimate division in national body of the APC, Saraki could no longer hold on to the position of the Senate President.
Falana argued that “the 1979 and 1999 constitutions have prohibited cross-carpeting on the grounds that you (the defecting legislators) are cheating or shortchanging the electorate. And that was stated under Section 68(1)(g) of the Constitution.
“The only proviso is that, if your political party is in trouble and is fractionalised and there is a major division, you can cross over, but not a division instigated for the purpose of exiting, no. So, if you are elected on the platform of party A, and you don’t want that party again, you must go and seek fresh mandate on the platform of your new party,” he said.
Mike Ozekhome (SAN), however, countered Falana’s position when he insisted that not only was the defection in order, Saraki need not relinquish his position as the Senate President.
Ozekhome said: ”In law, there is no legal or constitutional basis for Dr Bukola Saraki to resign or be removed as president of the Senate and Chairman of the NASS simply because he has decamped or defected from APC to PDP.”
He argued that since there were factual evidences that there was division in the APC in the manner envisaged in the proviso to Section 68(1)(g), Saraki cannot lose leadership position as the Senate President.
Ozekhome contended that “there is nowhere in the extant 1999 Constitution where it is provided that the ruling party must provide the principal heads of the bicameral legislature.”
A Law teacher at the University of Lagos, Wahab Shittu maintained a middle ground, but insisted that on ethical and moral grounds, Saraki ought to be prevailed upon to allow the majority party, as has been the tradition, to produce the Senate President.
Shittu noted that the issue raises constitutional, ethical and moral standards. He stressed that constitutionally, Saraki has a right to defect, which he has exercised, but that such defection also has its consequences.
He added: “The post of the Senate President is reserved for the party with the majority in the House. As the Senate President, he is the first among equals. So, the ruling party, by the exercise of its majority membership in the House, is entitled to produce the Senate President.
“Having defected from the ruling party, and with the ruling party still maintaining a majority in the House, he (Saraki) can no longer preside over the House. And, if you look at it from the perspective of the tenets of democracy, democracy is a game of number. So, the majority has the right to produce the Senate President. That is the privilege they enjoy.
“But, having said that, the decision, on who becomes the Senate President, is the prerogative of the House. Every Senator is entitled to exercise his/her voting right when the choice of a Senate President is being made. It is something that will be subjected to vote, because it is the prerogative of members to decide who they want to make the Senate President.
“This is why I say it raises ethical and moral question. Because there is a saying that if there is a crown that belongs to a family and you leave the family for any reason; ethically and morally, you should also return the crown,” Shittu said.
Another lawyer, Dr. Jonah Duku argued that despite the absence of any constitutional provision that effectively address the issue at hand, there is nothing stopping the people from resorting to tradition and practices in other civilised democracies.
Duku contended that the law in every democracy is made up of legal rules and conventions, and that because the nation’s Constitution is not explicit on what should be done in this kind of scenario cannot be interpreted to imply that it endorses chicanery.
He added: “The Constitution flourishes on moral hygiene, and legal rules are basic minimum acceptable standards of conduct in any democratic setting. So, in a democracy, the law expects the society to function at much higher standards than those contained in legal rules.
“It is unfortunate that politicians in this clime are actuated by motives other than service to the people and fatherland. They are driven solely by the urged for self-aggrandisement and mad acquisition of crude power and capital for their sake. Morality, ethical conduct, the need to abide by the rule of decent conduct do not appeal to them.
“This accounts for why the political space is populated by characters with questionable background and individuals, who are unknown to have distinguished themselves in any field of human endeavours.’’
Options for APC
Law experts argued that the absence of a legal direction on this issue still provided the APC with options to explore. First, they said, is for the APC to approach the court for a definite pronouncement on this issue to serve as a guide in future occurrence.
The second, they noted, is for the party to explore the constitutional provisions in Section 50(2) (c) of the Constitution, which provides for the removal of such a principal officer through a resolution by the votes of not less than two-thirds majority of the members of the House.
The implication is that the APC will require the support of 73 senators out of the total 109 in the Senate to achieve such a resolution.
The third option is for the APC to allow Saraki complete his term as Senate President under his new party and prevent a recurrent should it retains power at the centre after the 2019 general elections.