As the opposition Peoples Democratic Party (PDP) readies to challenge the defection of the governor of Zamfara State, Bello Matawalle, lawyers have said the move may be unsuccessful. This, they said, is because the 1999 Constitution is silent about the consequences of a serving governor dumping his party for another.
Matawalle, who was a member of the PDP, had last week Monday dumped the party and joined the ruling All Progressives Congress (APC), thereby, provoking the opposition party, which has in recent times, lost three serving governors to the APC including Governor David Umahi of Ebonyi State and his Cross Rivers counterpart, Governor Ben Ayade.
Describing the move as an unpardonable act of betrayal, PDP had said it would ask the court to interpret the legality or otherwise of the defection. The PDP National Publicity Secretary, Kola Ologbondiyan, noted that the matter had been established by the 1999 Constitution and a judgment of the Supreme Court.
He noted that the provisions of the Constitution is very clear in barring lawmakers from cross carpeting, except in a situation of a division in the political party on whose platform they were elected. Ologbondiyan went on to declare that “there is no division in the PDP to even warrant the defection of any of our lawmakers.”
But reacting to the threat by the PDP to sue the governor, Lagos lawyer, Stephen Azubuike, said the law is not on the side of the PDP for a number of reasons. According to him, politicians enjoy the constitutional right of freedom of association, not minding whatever would be the merit of the case the party intends to file for the court’s consideration.
“This is the main reason there are often indiscriminate defections that appear to have been condoned over time. Again, equity frowns on PDP’s irritation because we have seen the party set up banquets to welcome politicians defecting from other political parties. Anyone who comes to equity with unclean hands will go home hungry and angry. Thus, both in law and equity, PDP does not seem to have any case,” Azubuike declared.
Also, chairman of the Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL), Monday Ubani, explained that governors and their deputies are beneficiaries of the political parties in any electoral victory, but that the Constitution is silent about their defection, unlike that of legislators, where the Constitution specified under what circumstances they could defect.
“In the circumstances, it may be difficult to get the court to do anything about their defection. The Constitution did not prohibit or specify conditions for their defection. That silence is lethal and is being exploited by unstable politicians who jump from one political party to another.
“Recall that at one time in our political history, one man named T.A. Orji, former governor of Abia State, was found in three political parties within a space of a week or thereabout. He was in Progressive Peoples Alliance (PPA) under which he won election in the morning, defected to All Progressives Grand Alliance (APGA) in the afternoon and jumped into PDP some days later.”
Ubani stated that it is clearly an anomaly and deserves the focused attention of the ongoing constitutional amendment. He said: “My prescription will be that anyone who has no specified reason to leave the political party that brought him or her to power should vacate the seat upon defection to another party. This accords with justice, equity and fair play. A political party that did not sow should not reap where it made no contribution.”
Lagos-based lawyer and executive director, Cadrell Advocacy Centre, Evans Ufeli, also agreed that there is no provision against defection in the Constitution in respect of the executives.
His words: “The gate of defection seems to be open in Nigeria. The Electoral Act is clear on the issue to an extent, to the effect that it is political parties that contest and win elections not the candidates. If this is anything to go by, it means Matawalle’s seat, as a governor, needs to be declared vacant.
“The law didn’t say the aforementioned expressly but this ought to be the position. It has to become law in the light of the aforesaid before it can be enforced.
“Some people have argued conversely, that since chapter 4 of the 1999 Constitution provides for the right of individuals to belong to any association of their choice, a governor as an individual, can move to any political party of his choice. More so, a political party is just but an association in the eyes of the law and the said right is enforceable under the Constitution.”
The court, he said, has a duty to interpret the law as it relates to this issue so Nigerians can by case law, set the standard once and for all. He encouraged the PDP to follow the case to its logical conclusion.
But a professor of law, Nnamdi Obiaraeri, said the PDP is making itself a laughing stock and a willing tool for overloading the already overworked courts with useless questions that have overtime received the final judicial stamp of the Supreme Court.
“Can PDP approbate and reprobate and believe that Nigerians are suffering from collective amnesia? I ask this question because overtime, PDP has benefitted from defections of governors elected on other party platforms into their fold, the most recent being Governor Godwin Obaseki of Edo State.
“Stricto sensu, the Constitution does not debar a governor from defecting to another political party as that constitutional restraint applies only to serving members of the legislature elected on the platform of a political party in terms duly stipulated under sections 68(1)(g) and 109(1)(g) of the 1999 Constitution as amended,” he declared.
However, a Senior Advocate of Nigeria (SAN), Ifedayo Adedipe, has encouraged the PDP to give the suit a shot. According to him, the Supreme Court has emphatically stated that it is political parties that win elections.
“They said so in the case of Amaechi Vs Omehia and in Faleke Vs Bello, that it is the party, not the candidate that wins election. So, in the case of Zamfara, the court held that the APC had no candidate and is out of the race. The court ordered that the next political party that meets the constitutional requirement should take the position and that was why the PDP came in. The mandate is that of the party and not the candidate.
“So, for Matawalle to seek to take the mandate to another party is something that the PDP needs to test in court. I support them in this. In any event, the discipline and fraud that our politicians are committing in our electoral processes should be checkmated,” he stated.
He lamented that politicians campaign on the platform of political parties, get elected on it and flip to another party. “I think it is dishonest, immoral and there should be consequences. I support PDP as a party to challenge it in court,” he declared.
Fiery human rights lawyer, Dr. Mike Ozekhome (SAN), noted that the Supreme Court “has since overruled the decision in the Rotimi Amaechi vs Celestine Omehia case.”
Ozekhome also pointed out that Section 140 of the 2010 Electoral Act (As Amended) “has cancelled that decision. That section says for any person to win any election must have participated in all stages of the election.”
He argued that victory “no longer belongs to the political party, but the individual that wins the election. Without an individual, a political party cannot win an election. I have not heard of any political party that fields a goat or a sheep for an election.”
He observed that the apex court “has said in many new decisions up till last year that it is an individual’s life and blood that contests an election, not a political party.
“Under the Electoral Act, however, both political party and individuals can go to court and challenge the legality of an election. But the question is: who takes the benefit? It is still the individual. It is based on this principle that I used in the Bakura constituency election in Zamfara State. I just won that election three weeks ago.
“I used this principle that the individual, who was contesting election in the APC, was not the candidate who participated during the election. And the tribunal agreed with me,” he observed justifying the decisions of the governors that defected.
It would be recalled that prominent laywer and Chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN) recently described the ruling APC as a highly unprincipled party in reaction to the defection of Matawalle. Sagay noted that PDP governors who are defecting to the APC are highly unprincipled people and opportunists who want to remain relevant at all cost. He added that the action of the party leadership has greatly embarrassed him as one of its sympathisers.