A lawyer, Femi Emodamori, examines the implication of the defection of Ondo State Deputy Governor Agboola Ajayi from the ruling All Progressives Congress (APC) to the People’s Democratic Party (PDP).
There is a saying in jurisprudence that law and morality are not synonymous. Hence, an act that is morally reprehensible may not be legally punishable-Attorney General, Federation V. Abubakar (2007) 10 NWLR (PT 1041) 1.”
There is probably no better way to sum up the relationship between law and morality than the above quoted words of his lordship, Justice Habeeb Adewale Olumuyiwa Abiru, J.C.A, in the reported judgment of Unity Bank Plc v. Olatunji (2015) 5 NWLR (PT 1452) 203 at page 250, paragraph a.
Interestingly, in the above quoted judgment, his lordship referred to the case of Attorney General Federation V.Abubakar.
That was the celebrated case that decided the propriety or otherwise of the continued stay by Alhaji Atiku Abubakar in office as the Vice President of the Federal Republic of Nigeria, notwithstanding his defection from the then ruling PDP to the opposition Action Congress of Nigeria (ACN), to contest against his own ‘boss’, Chief Olusegun Obasanjo, for the office of the President.
It is sometimes interesting to witness history repeating itself or, do I say, being repeated. The New King James Version of Ecclesiastes 1:9 says “What has been will be again, and what has been done is what will done, and there is nothing new under the sun.”
Defection or cross–carpeting by politicians from one political party to another is not a new thing in the Nigerian political space, and we may have to learn to live with it, like the Covid-19 pandemic.
Any attempt to perpetually lock down party ‘loyalists’ or prevent their free movement across the political party boundaries without any guarantee of adequate ‘palliative’, would spell doom for the law.
And let us face the truth: where would the palliative come from to satisfy the insatiable political class (or clowns as some would rightly or wrongly say) in Nigeria?
So, the law would seem to have no choice than to ease the restriction of their movement, and prepare us for the seasonal ‘spikes’ in such defections.
Election time is the rainy season in politics, particularly in this part of the world, and the spikes should naturally be expected.
It was therefore no big surprise that His Excellency and my Learned Friend, Agboola Ajayi, the Deputy Governor of Ondo State, recently defected from APC to PDP in order to launch his election bid for the position of the State Governorship against his cousin, Arakunrin Oluwarotimi Akeredolu (SAN).
In politics, as they say, there is no permanent friend or permanent foe, but permanent interest; perhaps there is also no permanent consanguinity in politics. A brother today may not always be a brother; he could trade you off by barter tomorrow.
As it was in the biblical days of Joseph, so it is now; there is nothing new under the sun. Even Paul and Barnabas parted ways in their missionary journey; I found it in my Bible.
I make bold to say that S.40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees the fundamental right to freedom of association, and no politician, including the Deputy Governor of Ondo State, can be denied such right. The Deputy Governor is a Lawyer; he knows the law.
There are, however, serious legal consequences attendant to the exercise of such fundamental right, as most elected political leaders have come to experience.
I will examine some of those legal consequences through the lens of the Supreme Court, citing just two of the locus classicus cases relating to defection of elected politicians.
The first cases is A.G Federation v. Abubakar (2007)10 NWLR (PT 1041) 1, relating to the defection of the former Vice President, Alhaji Atiku Abubakar, from PDP to APC, which was referred to in the introductory part of this write-up.
The second case is Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & 11 others (2015) 8 NWLR (PT 1461) 314, a case relating to the defection of a lawmaker from one political party to another, which incidentally emanated from Ondo State. Ifedayo Abegunde, the Appellant in that case, is the current Secretary to the Ondo State Government.
An examination of these two cases would reveal that the legal consequences of defection are not the same for members of the Legislative and Executive arms of government. Let us begin with elected lawmakers (the Legislature), for a seamless digest of this analysis.
In the case of hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & 11 others (Supra) at page 348 paragraphs c-h, the Supreme Court held that:
“Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.
It is manifest: from the above quoted constitutional provision that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant.
No similar provision was made for the Vice President or even President. The principle enunciated by this court in the two cases, FEDECO v. Goni supra and A-G, Federation v. Abubakar supra, is to the effect that 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 looses his seat.” (underlining mine).
For the President, Vice President, Governors and Deputy Governors who are the elected members of the Executive arm of government, the Constitution does not make a similar provision for them to “automatically” forfeit their seats if they defect from their party to another, as stated above by the Supreme Court.
What then is/are the legal consequences of such defection by a sitting President, Vice President, Governor and Deputy Governor, if any?
The law is that the holder of such office can only be removed by the National or State House of Assembly, as the case may be, for gross misconduct, in line with Section 132(1)-(11) for the National Assembly, and Section 188(1)-(11) for the State House of Assembly.
These constitutional provisions relate to what is commonly referred to as the impeachment process, but the strict constitutional term for that is ‘removal from office’.
Does defection from one political party to another amount to an act of ‘gross misconduct’ for the purpose of such removal from office or impeachment?
The Supreme Court answered that vexed question in the case of A.G Federation v. Abubakar (2007)10 NWLR (PT 1041) SC1 at page 125-126, PARAS H-B, where the Court held that:
“By making the determination of what amounts to a gross misconduct to include what the National Assembly in its opinion, considers to amount to gross misconduct, the framers of the 1999 Constitution intended to give absolute power or discretion to the National Assembly to determine, by subjective test, the issue as to what may amount to gross misconduct for the purpose of impeaching the President or Vice President and it is my considered view that the term is wide enough to include the situation we find ourselves in this case where the sitting Vice President defects from the political party in whose platform he was elected to that office and joins another political party and proceeds to openly castigate the very government whose policies and administration he is a part, and played or continued to play very active part in, but sees no need to resign his office of Vice President.” (underlining mine).
In paragraphs E-F of Page 87 of the same Judgment, their Lordships went further to hold that:
“The court below was therefore wrong in holding that the 1st respondent could, while the Vice President still retained his office as Vice President, openly critize the same government; or join another political party and start to campaign for election to the office of President.”
That is the law and its infallible interpretation, as handed down to us by the law lords of the Supreme Court. Freely we have received it, and freely we are giving it to the people, on this topical and sensitive issue of defection. Personal affiliations or political alignments and alliances cannot change the law in this regard.
Magnifying the law, in the light of the notorious fact of the defection of the Deputy Governor and his subsequent acts and/or omissions, would therefore lead to the unavoidable conclusion that His Excellency had actually committed serious acts of gross misconduct for which he could be impeached.
Besides abandoning his joint ticket and mandate with the Governor and defecting to another political party to campaign for election into the office of the same Governor whilst remaining in office (which the Supreme Court regards as gross misconduct that could warrant impeachment), the Deputy Governor has, in the eyes of the law, committed other impeachable offences.
For instance, the Deputy Governor is on record for making statements confirming that he is undermining or subverting the current government in the State, by openly declaring that there would be a tsunami of defection of cabinet members and members of the State House of Assembly, to PDP.
By instigating the defection of members of the House of Assembly elected on the platform of one political party to another party, the Deputy Governor was clearly engaging in “subversive conduct which is directly or indirectly inimical to the implementation of some other major sectors of the Constitution”, which qualifies as ‘gross misconduct’, as stated by the Supreme Court in Inakoju v. Adeleke (2007) 4 NWLR (PT 1025) SC423 AT 586-587, PARAS. E-H (the popular Ladoja case).
In clear terms, section 109(1)(g) of the Constitution prohibits defection by a member of the State House of Assembly elected on the platform of one political party, to another.
Again, the Deputy Governor is on record as having issued a public statement describing the Governor, who is the head of administration under which the same Deputy Governor is serving, as “a drowning governor of Ondo State.”
The worst dimension to this is that the Deputy Governor issued the public statement through a Chief Press Secretary who was employed by the office of the same Governor, and deployed to serve in the office of the Deputy Governor.
How then can one sensibly argue that such action does not amount to gross misconduct on the part of the Deputy Governor?
Perhaps the most unfortunate of such acts of misconduct of the Deputy Governor, is his threat/instigation of violence (caught on tape and now viral) during his personal and physical standoff with the police at the Ondo State Government House on June 20, 2020, to the effect that Ondo State may witness a repeat of what happened in 1983, which was a veiled reference to the blood-letting, massacre and wanton destruction of lives and properties across the old Ondo State.
The 1983 crisis sprang from the political disagreement between the then Governor of Ondo State, Pa Michael Adekunle Ajasin, and his Deputy, Chief Akin Omoboriowo, during which some of the greatest human capital assets of the State, were exterminated, with hundreds of families still living with the scar, agony and trauma of the crises till today.
Truth be told the Deputy Governor actually abused the constitutional immunity conferred on him and brought his office into public ridicule, by personally and physically resisting the Ondo State Government House Security personnel from subjecting him and his aides to routine security checks, during, which he made the regrettable and baseless inciting statement on the 1983 massacre.
The checks were necessitated by earlier reports of alleged nocturnal movement/looting of government properties in their official quarters out of the Government House earlier on that fateful day, preparatory to his defection.
The abuse of the immunity conferred on the Deputy Governor in this regard is against the trite position of the law that such immunity does not stop police investigation, in deserving cases, as held by the Supreme Court in the case of Fawehinmi v. Inspector-General of Police (2002) 7 NWLR (PT 767) 606 AT 682, PARAS D-H.
Ironically, the same Deputy Governor had earlier that same evening (June 20, 2020), issued a press statement through his Special Assistant (New Media), Comrade Allen Sowore, denying the alleged looting of government properties by his aides, and even stated further in the statement that:
“The Deputy Governor, has further directed Government security agents to thoroughly search any of his aides when going in and coming out of Government House.” (underlining mine). I keep records meticulously; I would not delve into any issue without my facts and records backing me.
The defection of the Deputy Governor to PDP without resigning from office, his subsequent open castigation and subversion of the same government which he is still part of, as well as his campaign for election into the office of the Governor and instigation of defection by members of the State House of Assembly to the same PDP, in violation of Section 109(1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have all been held to constitute gross acts of misconduct for which he could be removed from office or impeached, as contained in Supreme Court judgments quoted verbatim above.
Apparently, it was whilst the police were carrying out their constitutional duty of preventing the alleged looting of the properties of Ondo State, and the specific directive of the same Deputy Governor quoted above, that His Excellency appeared on the well-directed ‘Nollywood movie’ and made the regrettable 1983 replay comment, perhaps out of anger, but without any sense of restraint or responsibility expected of his highly esteemed office.
Assuming there is any scintilla of truth in the police narration of the incident (I have also learnt not to swallow everything the police says, hook, line and sinker), then, I cannot see anything wrong in the police telling the Deputy Governor and his aides to kindly suspend the movement of the properties out of their official quarters under the cover of darkness, and wait till daybreak, when such properties could be properly checked.
Interestingly, the properties were being moved out during the period when the Deputy Governor and his now estranged ‘boss’ (Mr. Governor) would want the rest of us to be locked down or locked up in our respective homes in the name of Covid-19 curfew.
Let us call a spade a spade; defection from one political party to another is embedded in the constitutionally guaranteed fundamental right to freedom of association. However, with the exercise of that right comes attendant legal consequences for the elected ones.
How long His Excellency can continue holding on to his office in term of “the day and the hour”, like Jesus Christ would say, is what I do not know.
Assuredly I say unto you, the game is as good as over for him, because APC holds an overwhelming majority (24 out of the 26 seats) in the House of Assembly.
Interestingly, none of the APC legislatures has defected with him to PDP, as he had previously boasted.
Whether and when this prophecy of law would be fulfilled concerning the exit of my Learned Friend, His Excellency, the Deputy Governor of Ondo State, Agboola Ajayi, is therefore just a matter of time. Most certainly, the game is over for His Excellency.
