By Femi Falana SAN
On Tuesday, March 8, 2022, the Federal High Court (coram Inyang Ekwo J.) sacked the Ebonyi State Governor, David Umahi, his deputy, Kelechi Igwe, along with 15 lawmakers in the State over their defection from the People’s Democratic Party (PDP) to the All Progressives Congress (APC). In sacking the governor and his deputy, the learned trial judge ruled that the votes polled by a political party could not be transferred to or utilised for the benefit of another political party or member of another political party. In acknowledging that the Constitution was silent on the implication of the defection of a governor or his deputy, the learned trial judge opined that “such a lacuna was not to be celebrated or even mischievously flaunted as failure of a remedy for situations of such nature.”
Before the decision was handed down last week, the High Court of Ebonyi State had dismissed the suit filed by the APC and its flag bearers, Senator Soni Ogbuji, Justin Ogbodo in the 2019 governorship election who had prayed the Court to declare them the winners of the election since the PDP candidate had abandoned the mandate of the people by joining the APC. It was the view of the presiding Judge, Henry Njoku J. that his jurisdiction to entertain the matter had been ousted by section 308 of the Constitution which has conferred immunity on Governor Umahi and his deputy. In contradiction, Justice Ekwo held that immunity from civil and criminal proceedings conferred on the President, Vice-President, Governors, and Deputy Governors by section 308 of the Constitution did not apply to the case because “the cause of action and the remedy thereof cannot wait till the third and fourth defendants leave office.” Consequently, the Court ordered the Independent National Electoral Commission (INEC) to immediately declare the persons nominated to it by PDP as governor and deputy governor or alternatively conduct fresh gubernatorial election in the State in line with section 177(c) of the Constitution.
Not unexpectedly, the epochal verdict has generated mixed reactions from social commentators, political analysts and legal practitioners and other interest groups. It is pertinent to note there is no dispute whatsoever in the removal of the 16 legislators who decamped from the PDP to APC because the issue has been judicially put to rest in many decided cases pursuant to section 68(1)(g) of the 1999 Constitution (as amended) which expressly prohibits cross carpeting by legislators and provides for circumstance(s) in which legitimate defection is permissible. In the case of Abegunde v. Ondo State House of Assembly (2014) LPELR 23683, the Supreme Court rejected the argument of the appellant, a member of the House of Representatives who decamped from Labour Party to Action Congress of Nigeria (ACN) on the basis of fractionalization of the party at the State level. The Supreme Court held that only a division that makes it impossible for a party to function can provide the basis for a legislator’s defection hence, the Appellant’s seat was declared vacant.
In the instant case, there was no fractionalization in the PDP when the 15 members of the Ebonyi State House of Assembly decamped from the PDP to APC. The legislators decided to defect in solidarity with Governor Umahi without considering the legal implications of their action. Having regards to the facts and circumstances of the defection and the state of the law the finding of Justice Ekwo on the loss of the seats by the legislators cannot be impugned in any material particular. But the former legislators should be prepared to contest on the platform of the APC as INEC will soon conduct a bye-election to fill the 15 vacant seats in the parliament. No doubt, the loss of the seats and the court order for the refund of all salaries and allowances collected by the defectors will serve as a deterrent to other political defectors.
However, the removal of Governor Umahi and his deputy has been questioned by some lawyers who erroneously believe that the Judge erred in law in not relying on the authority of Attorney-General of the Federation v Atiku Abubakar (2007) 20 WRN 1. Those who criticized the judgment on that score have failed to realize that the main issue for determination in the Atiku’s case was the legal priority of the decision of President Olusegun Obasanjo to declare the office of Vice President Atiku Abubakar vacant for abandoning the political party on whose platform he and the President were elected and joining another political party. While upholding the fundamental right of the Vice President to freedom of association the Supreme Court declared illegal and unconstitutional the President’s declaration of his Vice President’s office vacant, based on his defection to another political party. The Court held that the Constitution does not make express provision for the vacation of office of the Vice President upon his defection from his sponsoring political party to another party.
Contrary to the misleading impression conveyed by many lawyers, the Justices of the apex court did not endorse the defection of Vice President Abubakar. Indeed, in the leading judgment of the Court, Akintan JSC said that “The action cannot be justified by the fact that he (1st respondent) had been suspended or expelled from the ruling political party under which he was jointly elected with the President or that he was exercising his fundamental right of association guaranteed by the Constitution. What is required of him is to first resign and even after resigning from that office, he would still be precluded from dissociating himself from the collective responsibility for decisions taken by the cabinet while he was in office.” Although the Court declined to order the removal of the Vice President it was held that his action could fall under misconduct which would make him liable for impeachment by the National Assembly pursuant to section 143 of the Constitution.
It is on record that the Supreme Court has been consistent in condemning cross carpeting and defection by Nigerian politicians as it has bedeviled the political morality of the country. In the case of Federal Electoral Commission v. Goni (1983) 2 SCNLR 227, Aniagolu, JSC said, called for an end to the “fraudulent and malevolent practice of cross-carpeting politicians of yester years who, for financial consideration or otherwise, crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.” On his own part, Obaseki JSC stated that “It is now political history that some of the Nigerian politicians who had the honour of being voted into Parliaments and the Houses of Assembly under the previous civilian Constitutions just before and after independence did little to keep their loyalty to the political parties which sponsored them for election. No self- respecting politician would wish to see a repeat of the wave of carpet crossing and sitting tight that characterized those eras.”
Those who have placed uncritical reliance on the Atiku’s case have failed to appreciate that the validity of the votes scored by the PDP in the presidential election did not arise for determination. To that extent, the case cannot be a justification for the subversion of the democratic rights of voters by political defectors. Whereas in the 2019 governorship election in Ebonyi State, the PDP garnered 393,343 votes across the 13 local governments areas of the state, its closest challenger, the APC, got 81,703 votes. After the PDP had emerged the *winner of the election the certificate of return was issued in the name of its flag bearer by the INEC Chairman, Professor Yakubu Mahmud who stated that “I hereby certify that Nweze David Umahi of Peoples Democratic Party (PDP) has been elected to the office of Governor of Ebonyi State…” Even though Governor Umahi has decamped from the PDP to APC neither the INEC nor the High Court of Ebonyi State has amended the Certificate of Return to read “Nweze David Umahi of the All Progressive Congress”!
It is interesting to note that some lawyers have maintained that Governor Umahi has exercised his freedom of association by decamping from PDP to APC. While the Governor’s freedom of association is constitutionally protected he cannot be permitted to infringe on the democratic rights of the 393, 343 citizens who voted for him as the governorship candidate of the PDP have been completely ignored. Or are we to believe that the votes scored by the PDP have been merged with those of the APC since the PDP candidate decamped to APC? Curiously, in making a mockery of the democratic rights of the people of Ebonyi State the critics of the judgment of Justice Egwu have failed to advert their minds to the undeniable fact that majority of the voters actually exercised their franchise in favour of the PDP. After all, the names of the candidate David Umahi and his deputy were not on the ballot papers.
In the leading judgment of the Supreme Court in All Progressive Congress v. Marafa, LOR (24/05/2019) SC, Justice Paul Adamu Galinji declared that all the votes cast for the APC were “wasted votes” on the grounds that the party failed to conduct a proper primary. The Court added that all political parties with the second highest votes in the elections and the required spread, are elected to the various elections. In the instant case, the votes credited to the PDP in the 2019 governorship election in Ebonyi State cannot be said to have been wasted based on the decision of Governor Umahi to decamp to the ruling party. Since the said votes are not wasted it is inconceivable that they have been legally transferred from the PDP to the APC. Under no law in Nigeria can the exercise of the right of Governor Umahi to defect from the PDP to APC extinguish the 4-year mandate freely given to him on the platform of the PDP during the 2019 general election.
We wish to submit, without any fear of contradiction, that elections are won by political parties and not by candidates. In Amaechi v. INEC & Ors (2008) LCN/3642 (SC), the Supreme Court held that “The above provision (i.e. section 221) effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest.” Pius Olayiwola Aderemi JSC, emphatically stated that, “…it is the political parties that the electorates do vote for at election time.” This decision has been consistently misinterpreted by some lawyers who share the view that the position of the apex court in Amaechi’s case has changed and that the decision reached in Atiku’s case represents the correct position of the law on defections by State Governors.
In a rather desperate bid to buttress the point, reliance has been placed on the Court of Appeal decisions in INEC v Action Congress (2009) 2 NWLR Pt. 1126-524 (CA), where it was held that, “…the participation of a political party does not exceed campaigning for the candidate…” and Ngige v. Akunyile (2012) 15 NWLR Pt. 1323-343 (CA) where it was said that “… a political party is nothing more than agent of the candidate in gathering votes to an election”. In order to discredit the judgment of the Federal High Court, some lawyers have referred to sections 140 and 141 of the repealed Electoral Act 2010 to prove that the case of Amaechi v INEC is no longer the law. Apparently, the lawyers are not aware of the case of Labour Party v INEC (Suit No FHC/ABJ/CS/399/2011) where Kolawole J. (now JCA) had declared that both sections of the Electoral Act, 2010 for being inconsistent with sections 134 and 179 of the Constitution which imbues the judiciary/court with powers to declare the person with majority votes winner of an election process. According to the learned trial judge “the two sections smacked of legislative tyranny, in the sense that they removed the constitutionally guaranteed powers of the court to declare any candidate winner of an election. The judge further stated that what the National Assembly had done in this instance was to deliberately interfere with judicial affairs. While noting further that the two sections were nothing but legislative judgment…”
With respect, the Supreme Court has never jettisoned its position in Amaechi’s case. Hence, in Wada v. Bello (2017) 3 W.R.N. 72; the court reiterated and upheld its earlier position in Amaechi’s case when it held that “A political party is an abstraction. It has to canvass for votes through its members as agents, in the same way it contests, wins or loses elections through a candidate it nominates who acts as its agents. There is no provision for independent candidates. The candidates nominated to contest at an election by his party acts as an agent of his party. He is, as it were, an agent of a disclosed principal and as far as third parties are involved, benefits and liabilities accruing to the candidate (as agent) belong to his party (the disclosed principal).”
Thus, in line with the tenets of the rule of law the INEC has been guided by the decisions of the Supreme Court in Amaechi v INEC and Wada v Bello. For instance, the INEC declared the All Progressives Congress (APC) as the winner of the December 5, 2020, senatorial bye-election held in Imo North. The returning officer reportedly announced that APC polled a total of 36, 811 votes while PDP came second with 31,903 votes but the INEC Resident Electoral Commissioner in Imo, Professor Francis Ezeone said that the commission was unable to return a candidate at the time as a result of several court orders for and against the two major contenders. Interestingly, the commission did not declare the candidate who won the election until the Supreme Court affirmed Frank Ibezim’s candidacy, several months after the election.
In the same vein, in February 2022, INEC declared the APC as the winner of the chairmanship election conducted in Abaji Area Council of Abuja but due to a legal tussle over the party’s aspirant, no candidate was declared the winner of the election. The INEC Returning Officer for Abaji Area Council said that it would not be legitimate to declare any of the aspirants as the winner of the election. He announced that, “We cannot declare a candidate winner in Abaji because the winning party does not have a candidate here, the case is still in court.” He said that a winner would be announced after the resolution of the pending intra party dispute by the Supreme Court. Up till now, the winner of the election has not been declared as the case has not been determined. It is interesting to note that the practice of declaring political parties as winners of elections without naming the candidates by the INEC has not been challenged in any court.
The consistent interpretation of section 221 of the 1999 Constitution (as amended) by the Supreme Court has confirmed that votes cast during elections in Nigeria are owned by political candidates and not by candidates who are flag bearers or agents. Since the candidate are agents of their principals it is grossly misleading to insist that Governor Umahi has transferred the 393,343 votes scored by the PDP to the APC because of his defection. Furthermore, Governor Umahi had constituted the government of Ebonyi State on the basis of the majority of the lawful votes scored by the PDP in line with the provision of section 179 of the Constitution. Thus, before the defection of Governor Umahi from PDP to APC, Ebonyi State was a PDP-led Government. Therefore, , the APC-led Government in the State formed as a result of the defection of the Governor is illegal as it is a negation of section 1(2) of the Constitution which has prohibited the control of the government of Nigeria or any part of it except in accordance with the provisions of the Constitution.
It has also been argued that the defection of Governor Umahi in exercise of his freedom of association has cancelled the 393, 343 votes scored by the PDP. Even under a military dictatorship in Nigeria, the African Commission on Human and Peoples Rights held that the cancellation of the results of the June 12 presidential election won by Bashorun M.K.O. Abiola by the Ibrahim Babangida military junta was a violation of the combined provisions of articles 13 and 20 of the African Charter on Human and Peoples Rights. See Constitutional Rights Project & Anor. v Nigeria (2000) AHLR 198. Furthermore, in view of the several provisions of the Constitution and the Electoral Act which have provided for participatory democracy on the basis of majoritarian rule the defection of Governor Umahi cannot wipe out the 393, 343 lawful votes scored by the PDP in Ebonyi State.
It view of the foregoing, it is submitted that the judgment of the Federal High Court delivered by Justice Ekwo is in tandem with the relevant provisions of the Constitution, Electoral Act and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004. It is also in line with the decisions of the Supreme Court which have confirmed that elections are won by political parties. However, in view of the penchant of members of the ruling class to subvert the wishes of the people through cross carpeting or defection borne out of wanton opportunism it is high time that votes were made to count in the country. The members of the national assembly and the various state legislative houses should take advantage of the ongoing constitutional review to put an end to the subversion of the wishes of the electorate by compelling political leaders who decamp from the political parties on whose platform they were elected to resign from office forthwith.
In conclusion, I am compelled to remind Nigerian politicians and lawyers of the cautionary words of the Honourable Justice Ganjili in the case of A.P.C. v Marafa (supra). Worried over the brazen political manipulation and impunity by the Nigerian ruling class, his Lordship said that, “For this great country, some politicians who are either ignorant of what party politics is, or out of mischief, have continuously dragged this nation backward. If care is not taken, this class of politicians will drag this nation to the Stone Age, where all of us will be consumed. I once again, as this court has consistently preached, urge this class of politicians to play the game according to law and guidelines which they themselves have enacted. It is only when this is done that sanity will take center stage in the domestic and international affairs of this great nation”.