On 17th April 2015, the Supreme Court ordered Ifedayo Abegunde, representing Ondo State Akure South/north federal constituency in the House of Representatives, to immediately vacate his seat. What was the offence? His defection to the Action Congress of Nigeria (ACN) from the Labour Party (LP) under which he was elected. The ACN has since morphed into the current ruling All Progressives Congress (APC). In a unanimous judgement at the time, all seven Justices of the apex court (including then Chief Justice of Nigeria, Mahmud Mohammed) held that Abegunde acted illegally by abandoning the party that sponsored his election to join another one.
According to the apex court, as at the time Abegunde defected to the ACN, there was no division in the LP that could have been used to justify his action going by section 68(1)(g) of the constitution. The Supreme Court stressed that the “division” or “factionalisation” which was cited by Abegunde as his excuse for abandoning LP was only at the state level. Justice Musa Muhammad, who read the lead judgment, stated that “The principles enunciated by this court in the two cases – FEDECO v Goni supra and Attorney General of the Federation v Abubakar supra – is 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. Otherwise, as rightly held by the courts below, the defector automatically loses his seat.”
While this case relates to the defection of a lawmaker and the circumstances in which this is permitted, I am aware that the Constitution is silent on what happens when a sitting president or governor defects from the party under which they were elected to join another one. But from the Second Republic to date, judgements of the Supreme Court have always affirmed the supremacy of political parties when it comes to the ownership of mandates.
Given the foregoing context, it is unfortunate that the governor of Ebonyi State, Dave Umahi would throw caution to the wind following the recent Federal High Court judgement that sacked him, his deputy and 16 members of the state House of Assembly for defecting to the APC after being elected on the platform of the main opposition Peoples Democratic Party (PDP). In his judgement, Justice Inyang Edem Ekwo stated that “a person who won an election on the platform of a political party and occupied an office by virtue of that, cannot by act of defection make a party that lost an election become the party in power to the chagrin of the party that rightfully own the votes that won the election.” He added, “There is no constitutional provision that makes the ballot transferrable from one political party to another. Where the electorate expresses their trust in an election by giving their votes to a political party, there is no political machination or manipulation that would allow a party to short-change the will of the electorate.”
Although Justice Ekwo conceded that the Constitution makes no clear provision as to what should happen to a Governor or Deputy Governor who defected from the party which brought them to power, as it does for lawmakers, his position is that the consequences are the same. “Let me put it this way…If a Governor or Deputy Governor defects from the political party by whose vote he got into office by joining another political party, such a person must be seen to have jettisoned not just the political party, but the votes of the party as well, under our law,” Justice Ekwo said.
Common sense has prevailed with Umahi ‘apologising’ to the Nigerian Bar Association (NBA) which took exception to his reckless statement attacking the Judge. But the bigger issue is that the judgement has brought into sharp focus the role of the political party in the democratic process and how that role is increasingly being subverted in Nigeria.
I once alluded to the 2013 United Nations Development Programme (UNDP) capacity assessment report on Nigeria written by Jeremy Liebrowitz and Jibrin Ibrahim which underscored how political parties advance democracy and good governance as “a vital channel by which citizens can aggregate their interests, make policies, and hold government accountable”. I have also argued that what we have in Nigeria is no different from the situation described of India by Prakash Sarangi in his 2016 research paper, ‘Politics as Business: An Analysis of the Political Parties in Contemporary India’. According to Sarangi, “forming or sustaining a party seems to be a survival strategy for political activists” in which they “calculate the returns on the political and economic investments made…Parties look like business firms in a political market.”
Sarangi could have been speaking about Nigeria. Indeed, nothing exemplifies this more than the present situation in the two leading political parties (APC and PDP). Both have collectively been in power since the advent of the current dispensation in the country. The two parties are in serious crises and contentions are not about pressing national issues but rather how their prominent members might grab power. No consideration is given to what ails us as a nation. The Academic Staff Union of Universities (ASUU) last week extended its current strike by another eight weeks with dire implications for the future of our country. The nationwide blackout has taken us back to the days of NEPA (No Electric Power Again). Airlines are threatening to shut down for lack of aviation fuel in an oil-producing country. But none of these are of any concern to our politicians, many of whom have hardly slept since the Independent National Electoral Commission (INEC) released the 2023 general election timetable. One has relocated its headquarters to London with caretakers and undertakers at war, and another is trying desperately to exclude his three principal presidential contenders of four years ago from the current contest while its governors fight dirty in the market square.
In my Platform Nigeria 1st May 2019 presentation, ‘An Economy on Life Support: Time to Pull the Plug’, I stated that we either have a conversation about the future of our country in an orderly manner or it is forced upon us when we have little or no control. Sadly, we are gradually moving in that direction. After highlighting how different Nigerians were responding to our existential threats, I zeroed in on “those who, like my friend Louis Odion would say, enjoy presiding over the seating arrangement in a sinking Titanic.” That precisely is what is going on in the parties at a time when even the oil and gas sector (on which all the desperation rests) is under severe pressure.
In the 2019 audit report being considered by the National Assembly, the Office of the Auditor-General for the Federation disclosed that the Nigerian National Petroleum Corporation (NNPC), recently rebranded as Nigerian National Petroleum Company Limited, failed to account for about 107,239,436 barrels of crude oil lifted for domestic consumption. NNPC records showed that N1,272,606,864,000 was transferred by the corporation, but only N608,710,292,773.44 hit the federation account, leaving a gap of N663,896,567,227.58 that is yet to be accounted for. Incidentally, that same 2019, a report by the Nigeria Extractive Industries Transparency Initiative (NEITI) had revealed that a whopping $42 billion was lost to oil and products theft by Nigeria in ten years. NEITI also noted at the time that whereas the federal government claimed that between 150,000 and 250,000bpd of oil were stolen from country daily, data from private studies estimated that between 200,000 and 400,000bpd were lost to criminal cartels operating within and outside the industry.
In his column last Sunday, ‘Managing Risks to Nigeria’s Economy from Russia-Ukraine War’, Waziri Adio, the immediate past NEITI Executive Secretary, explained why the jump in crude prices that should ordinarily benefit our country could become a nightmare because of the way we have over the years mismanaged the oil and gas sector. There are so many nuggets in his intervention. Now that the national electricity grid has collapsed amid a worsening diesel crisis that is global and skyrocketing aviation fuel prices, we are reaping the bountiful harvest from what we refused to sow. It should be noted that both diesel and aviation fuel are already deregulated but the fact that the products are imported puts us at a great disadvantage.
These are some of the issues that demand attention at a most critical period in the life of Nigeria. And what appears lost on our politicians is that democracy cannot grow in an environment where there is no accountability. Yet, accountability begins from respecting the wishes of the electorate. So we can then understand why Nigeria is what it is. If a person elected on the platform of a political party could whimsically defect to another party in pursuit of personal interest, such people cannot be expected to pursue the public good in office. This is precisely the meaning of Justice Ekwo’s judgement on the Umahi case and I believe it should trigger a serious national conversation.
Meanwhile, Umahi should listen to the Presidential Advisory Committee Against Corruption (PACAC) Chairman, Itse Sagay, SAN. Not only has the respected law professor endorsed the judgement, Sagay said it would most likely be sustained by the Court of Appeal. “I definitely know there will be an appeal on the ground that there is no specific mention of that (defection of governor to another party) in the constitution. The judge only did it by implication. It is permissible in law to do it; when the law takes off from one point, you can extend it to another point by implication. I think that is why he (Justice Ekwo) is relying on Supreme Court judgment in Amaechi’s case where it was held that it is the parties that are elected,” said Sagay who incidentally is an APC member so there can be no question of political bias in his position. “If you go back to that principle alone, then it was the PDP that was elected. That Amaechi’s judgment was a governorship case too just like this one on Ebonyi and it is a very strong point to stand on. So, from the look of things, Umahi may have problem in the Court of Appeal because the PDP lawyers will argue that this decision that is being appealed against was based on a Supreme Court decision and so, neither the High Court nor the Court of Appeal can change it. So, I think there is a fairly good chance that this judgment will be sustained”.
I am not a lawyer but as a student of politics, I understand that both the law and convention affirm the supremacy of political parties regarding ownership of political mandates in Nigeria. One, as rightly surmised by Justice Ekwo, the constitution recognizes only candidates fielded by political parties with no room for independent candidature. Two, INEC has had to declare results in which political parties rather than any specific individual is adjudged winner. Three, votes in the same election have been transferred from one person to another based on political affiliation. There is no better example of this than what happened on 21st November 2015 during the Kogi State gubernatorial election when the then APC candidate, Abubakar Audu, suddenly died before the process was concluded. Yahaya Bello, who came second at the APC primaries, was eventually picked by the party to inherit Audu’s votes. In rejecting his party’s decision, Audu’s running mate, James Faleke approached the election tribunal in the state, asking to be declared governor-elect. The PDP candidate and then incumbent governor, Idris Wada also sought legal redress that for a new candidate to replace Audu, there was need for a fresh and not supplementary election. At the end, it was the supreme court that resolved the matter.
In that judgement, the apex court not only reaffirmed its position on the Amaechi case, it stated that INEC was right to combine votes cast for both the dead and living candidates because the relationship between a party and its candidate was akin to that between an agent and their principal. “On this basis, the votes scored by the candidate belongs to the party that sponsored him at the election and therefore Prince Abubakar Audu, who was the candidate of the 2nd Respondent (APC) and scored votes at the election could not have died with those votes since they belong to the 2nd Respondent (APC). The votes were rightly added to the votes the 1st Respondent (Yahaya Bello) scored in the supplementary election,” according to Justice Kekere Ekun who delivered the lead judgement.
I sympathise with PDP and their emergency ‘governor’ in Ebonyi State given that this case will eventually be settled at the Supreme Court at a time Umahi would most probably have concluded his term. But this moment should also not be wasted by stakeholders in our democratic project. We need to begin the process of institutionalizing political parties for the advancement of public good rather than as mere vehicles for gaining power after which they could be cynically discarded. That is the lesson we can take from the Umahi judgement.
The Constitution and by implication, democracy and the rule of law is put in jeopardy, according to the Justice Ekwo, where the will of the electorate who voted for a political party can be brazenly merchandised by their elected candidate without consequences.
And I concur!
Adieu Emeka Obasi
I felt very sad yesterday when I learnt that the publisher of HALLMARK newspaper, Prince Emeka Obasi passed away on Tuesday. He had been ill for the past few years but despite what he must have been going through, he never allowed his health condition to rob him of his humanity and he remained a Nigerian patriot to the very end. May God comfort his wife, Dr Carol Obasi, their children and the entire family.
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