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#TheScoopLegal: “The G5 are safe but not lawmakers” – Ayo Sogunro on PDP defectors and losing their seats

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#TheScoopLegal: “The G5 are safe but not lawmakers” – Ayo Sogunro on PDP defectors and losing their seats

By Ayo Sogunro

Introduction

The last few days have witnessed the steady anticipation by the Nigerian public of, and excited reactions following, the migration of a number of People Democratic Party (“PDP”) governors to the All Progressive Congress (“APC”), thereby shifting the gubernatorial balance of power in the country.

At first glance, this power shift in the state executive house appears to be the conclusive result of that migration. However, more wary observers may recollect the 2007 decision of the Supreme Court in the Rivers State gubernatorial case between Mr. Rotimi Amaechi and Mr. Celestine Omehia which stated, in effect, that an electoral victory is grounded in the political party, and not in the individual candidate. A recollection of this decision therefore leads to the question: is a cross-carpeting governor still entitled to hold the office he won under the auspices of his former party? This is the issue we intend to consider in the following paragraphs, and we will start with a brief excursion into party politics.

The Political Background

The Supreme Court judgment in the Amaechi case actually originated in the earlier case of Mr. Ifeanyi Ararume in the Imo State gubernatorial election. Mr. Araraume had won the PDP primary in his state, but his party, in a not uncommon fashion, had substituted his name with that of a more favoured candidate, and had supplied this new name to the electoral commission. Mr. Ararume did not take too kindly to this idea, and he challenged the substitution in court. He won at the Supreme Court, and the court ordered Mr. Ararume’s name to be restored to the ballot for the elections. But the PDP was not too excited about the judgment, and rather than obey the court, the party announced that it was exercising its prerogative not to field any candidate for the election. This stance by the party, in effect, frustrated the decision of the court.

Soon after this, the Amaechi case came up before the Supreme Court, with similar issues. However, in this instance, unlike the Ararume case, the election had been contested and won by Mr. Omehia, the favoured candidate. The Supreme Court decided in favour of Mr. Amaechi, but this time the court had learnt its lesson in party politics. Instead of annulling the elections and ordering INEC to conduct fresh elections with Mr. Amaechi’s name on the ballot, the court decided to reward Mr. Amaechi directly with the votes won by the PDP and declare him winner of the election. Ergo, the PDP was now incapable of frustrating the court’s decision. According to Justice Kastina-Alu: “It is my view that the candidate of the PDP in the election was the appellant. His name was unlawfully removed. In the eyes of the law, he remains the candidate and this court must treat him as such.”

The Judicial Situation

There have been arguments regarding the “rightfulness” or otherwise of the Supreme Court’s decision in the Amaechi case. Was this decision a mistake by the apex court? Some commentators have considered it a step in the right direction towards preventing political party lawlessness, while some other observers have regarded it as an example of unnecessary judicial activism. The arguments continue to date. However, this article is not a dissection of the 2007 decision. Whatever the proper legal position may be, the decision remains valid until the Supreme Court reverses itself, or until an electoral law or constitutional reform takes care of the judicial situation.

Meanwhile, the issue we are inclined to consider is this: on the face of it, does that 2007 decision of the Supreme Court absolutely vest the election into, tenure of, and removal from political office within the political party? And, by extension, do the migrating governors have to leave office, having deserted their electoral political party?

To answer this questions properly, we need to turn to the provisions of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the “CFRN”).

The Constitutional Solution

The issues relating to the office of a governor of a state are contained within the provisions of s.176 to s.188 of the CFRN. Specifically, s.177 states, amongst other things, that: “A person shall be qualified for election to the office of Governor of a State if: …he is a member of a political party and is sponsored by that political party….”

This is a straightforward provision: membership of a political party is expressly required to be qualified for election. Accordingly, to this extent, the 2007 decision of the Supreme Court in Amaechi’s case was consistent with the provision of the CFRN. As far as qualification for election is concerned, the sponsorship of the political party is as important as, if not more than, the individual candidate seeking office.

However, when the CFRN moves on to the tenure of the governor (s.180) or the removal of the governor from office (s.188), it makes no mention of political parties. Constitutionally, once the governor has won an election, and has assumed office, his tenure is strictly defined and he is obliged to leave office only under the following circumstances: expiration of term, death, resignation, impeachment, or if the election is adjudged to be invalid. Beyond this, the Supreme Court cannot redefine the tenure of the governor by including defection to another political party. Such a position would be manifestly inconsistent with the provisions of the CFRN.

In theory, therefore, once the aspect of qualification for election is over and done with, an elected governor is free to join another party, or in fact, belong to no party at all.

In the Amaechi case, the Supreme Court pronounced on the qualification of Mr. Amaechi to contest for, and win the election on the strength of his political party. The court’s decision made no pronouncement on the tenure of Mr. Amaechi in office, and the court did not state that his tenure and removal of office were tied to his continued membership of the PDP. We cannot, therefore, impose such an interpretation on the decision of the Supreme Court.

This inference is further strengthened by the position of the CFRN in respect of federal and state legislators. In the respective sections, the CFRN expressly states that a legislator will vacate his seat if:  “being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.”

It is instructive that there are no similar provisions for the federal and state elected executives.

READ: #ScoopLegal: The APC can put its feet up… Rotimi Fawole on whether PDP defectors will lose their seats

The Rational Interpretation

This interpretation of the CFRN has a rational explanation. Although a candidate for an executive office requires a political party to qualify for election, he becomes the governor or President of all the citizens of the state or country respectively, once he assumes office, irrespective of party affiliations. The governor of the state is no longer the same as the candidate for the office of governor. Accordingly, a state governor owes an obligation to perform his duties to all citizens of his state, and not just to the members of his party. Therefore, a movement from one party to another should not interfere with his functioning as a governor.

The same cannot be said for legislative office holders. A legislator has a duty principally to the section of the constituency that elected him, and in our democracy, his election is often only via the strength of his party in that constituency. Accordingly, it is rational that a legislator will be expected to vacate office if he defects from the party of his constituency. But this reasoning, as we have pointed out, does not apply to the governor.

Conclusion

As exciting as it may be to contemplate the resignation from office of all the migrating governors, the reality is that the CFRN imposes no such condition on the tenure of executive officers. The Supreme Court decision of 2007 dealt strictly with qualification for election into office, and not with the tenure of office or removal from office. The migrating governors have a right to stay in office, and no court should compel otherwise, unless of course, these governors are impeached directly by their state legislators for “gross misconduct” as defined in the CFRN.

– Ayo Sogunro is the author of the book, The Wonderful Life of Senator Boniface and other Sorry Tales. A lawyer by profession, he also indulges in socio-legal philosophy on www.ayosogunro.com. Interact with him on Twitter via @ayosogunro.

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  1. Pingback: Africa Confidential Analysis: Small earthquake in Nigeria; President slightly hurt - The ScoopNG - The ScoopNG

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