Can a Legistor Cross Carpet and Still Keep His Seat Under Nigerian Law?

Our chief concern right here is to debate the legal penalties of the present spate of social gathering defection by members of the Peoples Democratic Party (PDP) to the All Progressive Congress (APC). We shall depart the duty of recounting Nigeria’s historical past on carpet crossing to historians and shall not be bordered by it. We shall additionally not permit ourselves to be drawn into arguments as to the morality/propriety of carpet crossing.

The media is awash with the information of the defection of 37 PDP members of the House of Representatives to the APC. Already, 5 PDP governors have dumped the get together for the APC. The collapse of the PDP because the ruling get together in Nigeria and as Africa’s largest political social gathering appears imminent as unconfirmed studies say that twenty-two senators are planning to additionally dump the get together for the APC.

Nigerian law on carpet crossing begins and ends with the provisions of Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria. These sections present that:

“a member of the Senate or House of Representatives or State House of Assembly shall not vacate his seat within the House of which he’s a member if being a individual whose election into the House was sponsored by a political celebration, he turns into a member of one other political celebration earlier than the expiration of the interval for which the House was elected.

Provided that his membership of the latter political celebration shouldn’t be as a results of a division within the political celebration of which he was beforehand a member of a merger of two or extra political events by certainly one of which he was beforehand sponsored.”

It is fascinating to notice that in contrast to the purport of above provisions, Sections 135 and 180 of the stated Constitution which offers for circumstances beneath which the President or his Vice, and a Governor or his Deputy might stop to carry workplace doesn’t point out get together defection as a floor for vacating or ceasing to carry workplace.

From the above provisions subsequently, Nigerian law on carpet crossing could possibly be summarized as follows:

1. A Legislator in Nigeria might lose or vacate his seat in parliament if he defects from the get together that sponsored him into the Legislative House to a different celebration.

2. A Nigerian Governor, Deputy Governor, President or Vice President can’t vacate or stop to carry workplace for defecting from the political get together that sponsored him into workplace to a different.

three. Before a Legislator in Nigeria could possibly be made to lose his seat in parliament for defecting to a social gathering aside from the one which sponsored him into the House, the principal officer of that Legislative House( the Senate President, the Speaker of the House of Representatives or the Speaker of the State House of Assembly because the case could also be) or a member of that Legislative House should first current proof passable to the Legislative House involved that a member has defected from the political get together that sponsored him into the House to a different political social gathering and has by operation of law vacated his seat in Parliament.

four. It follows from the above that if there isn’t a passable proof introduced to the Legislative House on a member’s defection, the member who’s alleged to have defected can nonetheless retain his seat. He will nevertheless proceed to be recognized and addressed as a member of the get together that sponsored him into the House.

5. A Legislator in Nigerian can cross carpet to a celebration aside from the one which sponsored him into the House and nonetheless hold his seat if he can show that his defection was as a results of a division inside his former celebration.

6. Also, a Legislator in Nigeria won’t lose/vacate his seat regardless that he has defected from the social gathering sponsored him to a different celebration if he can show that his membership of a new get together is as a results of a merger of two or extra political events or factions by one in every of which he was beforehand sponsored.

The place that whereas a Legislator in Nigeria is liable to lose his seat in parliament for cross carpeting to a different get together, the President, Vice President, Governor or Deputy Governor isn’t liable and can’t be pressured to vacate or stop to carry workplace for a similar cause was endorsed by the Nigerian Supreme Court within the case of AGF V. Atiku Abubarkar (2007)four S.C (pt.11)62 the place the difficulty earlier than the courtroom was whether or not the Vice President’s defection from the PDP( on whose platform he was elected into workplace) to the Action Congress of Nigeria(ACN) meant that he had routinely vacated and ceased to carry that workplace.

The Supreme Court held that it is just Legislators which are liable to vacate their seats in parliament for defection to a totally different get together from the one which sponsored them into workplace. The supreme held that the structure doesn’t envisage or present for the holiday /cessation of the workplace of the President, Vice President, Governor or Deputy Governor for defection from the celebration that sponsored them into workplace to a different social gathering. The Apex courtroom held subsequently that Vice-President Atiku Abubarkar was entitled to maintain and/or in workplace despite the fact that he had effected from the PDP to the ACN.

Again, the place that a legislator might lose his seat in parliament for cross carpeting to a different political get together has been affirmed by the courtroom in some selections. For occasion, the Federal High Court of Nigeria sitting in Akure within the case of Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors. sacked Mr. Abegunde, a House of Representatives member representing Akure North and South, Ondo State for defecting from the Labour Party to the ACN. Mr Abegunde had been elected into the House underneath the auspices of the Labour Party within the April 2011 General Elections. He nevertheless, defected to the ACN through the foreign money of the tenure of the House. The courtroom held that Mr Abegunde had vacated his seat and ceased to be a member of the House by operation of law. This determination was affirmed and upheld by the Court of Appea in Re Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors. (2014) LPELR-23683(CA),Appeal No.CA/AK/110/2012.

Again, within the case of Hon. Michael Dapialong v. Chief (Dr) Joseph Chibi Dariye, Appeal No. S.C 39/2007 the Supreme Court took judicial discover of the truth that between 25th and 26th July,2006, fourteen members of the twenty-four members of the Plateau State House of Assembly together with the Speaker and the Deputy Speaker thereof defected from the PDP platform on whose they have been elected to the House in 2009 to the Advanced Congress of d Democrats(ACD) as a results of which the stated 14 members have been held to have vacated their seats by operation of law.

Relying on the Supreme Court choice in AGF V. Atiku Aburbakar subsequently, we will safely conclude that the 5 PDP Governors that had defected to the APC can validly achieve this with out being liable to vacate or stop to carry their workplaces. This is as a result of the Constitution merely doesn’t penalize the President, Vice President, a Governor or Deputy Governor who dumps the celebration that sponsored him into workplace for an additional social gathering. Also, in contrast to Legislators, these members of the chief arm of Government will not be required to proffer explanations or causes to justify defection.

However, some individuals have argued that although the Constitution doesn’t penalize defection by Governors, the Supreme Court choice in Rotimi Amaechi v INEC Appeal No. SC 525/2007 could possibly be relied upon to impact the holiday from workplace of Governors who defect from the events that sponsored them into workplace to a different political celebration earlier than the expiration of their tenure. Acording Mr Dan Nwayanwu, Chairman of the Labour Party of Nigeria, the Supreme Court’s dictum in Amaechi’s Case to the impact that it’s the political get together and not the candidate for which the citizens forged their votes might be interpreted and utilized to imply that Governors who get elected into workplace solely to dump the social gathering that sponsored them into workplace for an additional get together ought to vacate or stop to carry workplace upon defection.

Mr Dan Nwamyawu in an interview granted to Sunday Trust Newspapers in 2007 advocated that Governors who defect to events aside from those that sponsored them into workplace ought to be kicked out of workplace on the idea of the choice in Amaechi v. INEC. We humbly disagree with this place. This is as a result of the Constitution doesn’t impose any penalty or legal incapacity on carpet crossing by Governors. Secondly, the Supreme Court in Amaechi’s Case didn’t determine the difficulty of the consequence of a Governor’s defection from his celebration. Rather, the query in Amaechi’s case was whether or not a one that didn’t contest an election could possibly be heard to problem an election or be declared as Governor. The choice in AGF V. Atiku Abubarka for all intents and functions stays the authoritative exposition of the law on social gathering defection in Nigeria.

It is by now past doubt that the 5 PDP governors who had defected to the APC are entitled to take action with none attendant penalty or legal incapacity. But can the identical be stated of the 37 members of the House of Representatives members who’ve defected to the APC? Can they validly dump the PDP for the APC with out dropping their seat in parliament?

By a letter addressed to the Speaker of the House of Representatives, titled ‘Communication of Change of Political Party’ and dated the 18tth December, 2013, the 37 defecting Federal Lawmakers defined that their defection from the PDP to the APC was as a results of the interior disaster inside the PDP. The Lawmakers additionally premised their defection from the PDP to the APC on the truth that the PDP has damaged into two factions: the New PDP and the Old PDP. The so-called New PDP consisting of the dissatisfied and disgruntled members of the get together, nearly all of whom have defected to the APC.

It is to be recalled that in Agundade’s case, he had argued that given the interior disaster, division and factionalization inside the Labour Party, he was entitled by advantage of the proviso in Section 109(1)(g) of the 1999 Constitution to defect from the Labour Party to the ACN with out dropping or having to vacate his seat within the House. The courtroom nevertheless dominated that since he couldn’t show division or factionalization inside the Labour Party, he was not entitled to maintain or retain his seat after he decamped to the ACN. That he vacated his seat upon defection to the ACN by operation of law.

The proviso to the provisions of Section 68(1) (g) and 109(1) (g) of the 1999 Constitution are to the impact that though a Legislator would ordinarily lose his seat if he defects to a celebration totally different from the one which sponsored him into the Legislative House, he’s entitled to maintain his seat if he can show that:

1. He defected to a new get together as a results of division inside the social gathering that sponsored him into the home.

2. His membership of the brand new celebration is as a results of the merger of two or extra political events or factions by one in every of which he was beforehand sponsored.

Before we proceed to look at whether or not the interior disaster rocking the PDP falls inside the proviso to Sections 68(1)(g) and 109(1) (g) of the Constitution, it’s pertinent to find out what constitutes division in a political celebration. The structure doesn’t outline phrase “division”. The Oxford Advanced Learners Dictionary of Current English, sixth Edition, defines division as a disagreement or distinction in opinion or lifestyle and so on particularly between members of a society or a corporation.

According to Professor Okey Okon of the South Central University, California, USA, division might come up from:

1. Ideological variations and

2. Organizational variations.

Organizational variations denote battle, division, disaster and so forth arising as a results of the best way and method the get together is run, operated or managed. In reality, all conflicts and crises arising from the administration and operation of the natural construction of the political celebration fall beneath the class of organizational variations. Conflict, division or crises arising from organizational variations bordering on such points as inner democracy mechanism of the get together, conduct of primaries election, funding, election of principal officers of the celebration, adoption of candidates as celebration flag bearer for election, dealing with of get together funds, planning and execution of election marketing campaign methods and so forth come beneath organizational variations.

It is a infamous incontrovertible fact that the PDP has from inception been bedeviled by inner crises brought on by the prevalence of undemocratic practices inside the celebration. The defecting 37 Federal Legislators have alleged that their defection from the PDP to APC was as a results of division and inner crises inside the social gathering and that they’re entitled to maintain their seats in parliament. We have no idea the particulars of the alleged division or crises inside the PDP but when their allegations are true then they’re entitled to maintain their seats in parliament.

We shall now flip our consideration to the difficulty of whether or not ideological variations represent division as to entitle a defecting legislator to retain his seat in parliament. Ideological variations pertains to battle, disagreement, disaster or division arising from a battle between a get together member’s concepts, beliefs, conviction, rules, philosophy or coverage with these of his political get together. When a member disagrees together with his celebration’s concepts, insurance policies, packages, philosophy or rules on socio- political or financial points does this disenchantment or disagreement together with his get together entitle him to defect to a different celebration with out having to lose/vacate his seat in parliament? Does this battle or disagreement together with his social gathering represent division as envisaged by the proviso in Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution?

Professor Okey Okon is of the opinion that ideological variations represent division inside the which means of Sections 68(1)(g) and 109(1) (g) of the Constitution and at such empowers a Legislator to defect to a different celebration with out dropping his seat each time he disagrees with the coverage and philosophy of his get together. According to the discovered Professor, ideological variations are a type of division which ought to justify a legislator to defect to a different celebration with out having to lose or vacate his seat. He opined that any interpretation of the law to exclude ideological distinction as constituting division is faulty. The discovered Professor additional posits that failure to deal with ideological variations as division will deprive Legislators of the sense of security and safety they should rise up for what they consider in. He held that such a slender studying of the law will present perverse incentives for Legislators to emphasise compliance on the expense of rules and conviction to expediency.

We nevertheless beg to disagree with this place. With due respect to the discovered professor, the proviso to Section 68(1) (g) and 109(1) (g) of the Constitution can’t be objectively interpreted to imply that every time a legislator disagrees with the coverage or philosophy of his celebration on socio-economic political or different points he can dump his get together for an additional social gathering and nonetheless retain his seat in parliament. Such an interpretation of the law can’t be the intendment of the drafters of the Constitution. It is essential to notice that the related provision reads… “As a result of a division in the political party”… This exhibits clearly that what the law envisages is a state of affairs the place there’s a battle or disagreement inside the celebration that results in inner disaster or instability within the social gathering. In different phrases, ideological variations alone can’t justify defection.

However, for ideological variations to justify defection, they have to be of such magnitude and depth as to result in disaster, instability, factionalization and battle inside the social gathering. The Noscitur Associis rule of development of statutes states that the corporate a phrase retains suggests its which means. The phrase “division” as utilized in Sections 68(1)(g) and 109(1) (g) of the 1999 Constitution are accompanied by the phrases “merger” and “factions” which phrases denotes a change or alteration within the natural construction of a political celebration. We subsequently agree with Professor Okey to the extent that ideological variations can represent division which may justify defection solely when such variations are of such magnitude and depth as to result in instability or crises inside the social gathering. A mere distinction in opinion or perception won’t suffice to justify defection.

Indeed, legislators should not have to defect to a new celebration to precise or maintain opinions or views opposite to these favoured by their get together until in fact doing so would outcome and truly outcomes to instability and disaster/battle inside the social gathering. It is submitted that to permit defection merely on the bottom that a legislator disagrees with the insurance policies or ideological place of his social gathering on sure socio-economic cum political or ethical points would defeat the intention of the framers of the structure. The structure clearly intends to discourage and penalize legislators for defection besides on uncommon and distinctive circumstances. Making mere variations in opinion and perception a floor for political defection would offer legislators an excuse for political prostitution.

It is fascinating to notice that the 37 defecting legislators have additionally sought to justify their defection on the bottom that the PDP was divided into two political events; the previous PDP and the brand new PDP which include the defecting and disgruntled member. They alleged that the brand new PDP has formally merged with the APC. We are of the opinion that if these allegations are true then the 37 defecting legislators are entitled to so defect with out having to lose their seats. It is pertinent to notice that the PDP has obtained a courtroom order declaring the so-called new PDP unlawful and restraining its members from parading themselves as PDP members. The query that arises from this improvement is, what’s the legal impact of this order on the rights of those defecting legislators to maintain their seats. It is our humble opinion that the courtroom order has no impact in any respect on the rights of the defecting legislators to maintain their seats. The order merely prohibits using the identify PDP by the defecting faction. It doesn’t imply that the defecting faction is an unlawful group as a result of they don’t seem to be a group of criminals or bandit.

Indeed, Sections 39 and 40 of the 1999 Constitution ensures the suitable to freedom of expression in addition to the appropriate to freedom of affiliation. The courtroom order subsequently can’t function to deprive or in any method prejudice the defecting members’ entitlement to maintain their seats.

The PDP has reacted to the defection of its member, particularly the 37 Federal lawmakers by saying that any member of the celebration that renounces its membership of PDP shall be made to vacate his seat. There are additionally studies within the media that the PDP has gone to courtroom to acquire a declaration for the holiday of the seats and workplaces of the defecting legislators and 5 governors. Let’s maintain our fingers crossed as we watch the drama unfold.

Source by Henry Medua Isiekwe

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