Welcome to>>> LORD and MS. RICH: Can a Serving Legislature Defect to Another Party? Legal Issues and Implications- By Richarmond O. Natha-Alade

Since independence, issues relating to the defection of the serving members of the State House of Assembly and the National Assembly from one party to the other is no longer new under Nigerian government and administration; particularly, since the advent of the Fourth Republic and the enactment of the Fourth Republican Constitution which took effect from 1999.

One of such is the recent news that broke out on the 24th of July, 2016 on several television stations and news media reporting the defection of 35 House of Representative members and 15 Senate members of the National Assembly.

The Nigeria laws, particularly the provision of section 68(1)(g) of the Constitution of the Federal republic of Nigeria (1999) as Amended is certain and assertive on the conditions upon which a serving member of the legislative arm of government can defect from one political party to the other.

Before analyzing all relevant issues thereof, for avoidance of doubts, I hereunder produce the relevant section of the Constitution as follows:

“68. (1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if -

(g) 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: Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored; or”

Before making an indept analysis into the proviso of the applicable law above and the facts in play, it is sacrosanct to note that the operating word in the above provision is ‘shall’ vacate’. The apex court had interpreted the word ‘shall’ in plethora of cases to mean a mandating word commanding what must be done. On the interpretation of the word ‘shall’, I commend the case of UGWU & ANOR V. ARARUME & ANOR (2007) LPELR-24345(SC) ( Pp. 36-37, paras. B-A ) where the Supreme Court held as follows:

"In the interpretation of statute, the word "shall" has various meanings. It may be used as implying futurity or implying a mandate or as contended by Dr. Izinyon, direction or diving permission. The word "shall" when used in a statutory provision imports that a thing must be done and that when the negative phrase "shall not" is used, it implies that something must not be done. It is a form of a command or mandate. See Nigeria LNG Limited v. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt. 416) 677. Generally, when the word "shall" is used in a statute, it is not permissive. It is mandatory. See Col. Kaliel (Rtd.) v. Alhaji Aliero (1999) 4 NWLR (Pt. 597) 139: The word "shall" in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. As contended by Dr. Izinyon, it is sometimes intended to be directory only and in that case it is equivalent to "may" and will be construed as being merely permissive. See Amokeodo v. Inspector General of Police (1999) 6 NWLR (Pt. 607) 467." Per TOBI ,J.S.C

In the light of the above cited decision vis-à-vis the leading issues culminating to the incidence of the said defection of the national lawmakers, it is essential to analyze some of the basics and intrigues that lies therein.

It is a notorious fact that some of the members of the ruling party are aggrieved and had always complained and wished they were treated with specialty in the party they belong, which is APC in this instance, the inattention allegedly given to some of these lingering issues by the leadership of the party actually led to the situation where some members of the party started to re-identify themselves as a ‘non member’ of the party, hence a promotion of an unpronounced faction or group known as r-APC.

In the above circumstance, the following questions must be satisfied in addressing all issues:

What is defection?
On what ground can a National Assembly serving candidate of a political party defect?
Was there actually a division in APC as envisaged by law?
Are there any faction leaders?
Does every grievances and quarrels amongst party members amounts to a division?
could it be said the requirements of law were met justifying the defection of the legislatures?

In giving total satisfaction by answers to the entailment of the above questions, for the purpose of this write up, it is necessary to appraise them all from legal points of view;

The word defection had been defined by Cambridge dictionary as an act of leaving a country, political party e.t.c. and go to another one. The Appellate court was more explicit by adopting the Miriam Webster Encyclopedia Dictionary definition in the case of ALI & ANOR V. OSAKWE & ORS (2010) LPELR-3743(CA) ( P. 55, paras. C-E ) the appellate court defined defect and other relative words as "abandon" "defect" "leave" as follows:

"Now the ordinary Dictionary meaning of the words ABANDON, DEFECT AND LEAVE are; ABANDON Means to relinquish, to give up something completely or forever; to forsake, desert etc. DEFECT - Means to forsake a party, cause, etc, especially so as to join the oppositions. Abandonment of loyalty, LEAVE - To leave means to go away or depart. See WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE SECOND COLLEGE EDITION, PAGES 2, 369, and 804." Per NWOSU-IHEME ,J.C.A

From the above definition, could it be said that the action of the lawmakers who left the APC as their sponsor party to another party amounts to a defection? The answer is obviously yes. This leads to the second poser question:

Was there actually a division in the APC? The question within are factual. Same is sacrosanct as it serves as the justifying ground for the decampee legislatures and same is sacrosanct to be answered adequately for all intent and purpose of this write up.

Before I make the legal back up in favour or not, I hereby make reference to the erstwhile factional division within the PDP which was recently resolved by the apex court in the case of Alimodu Sheriff & Anor. v. PDP & Ors. Although, it is a case of factional heads and/or leaders fighting for supremacy as to who is the recognized leader or not, while same may not directly apply to the issues at hand; as issues placed before the court in the PDP case is different from the issues been analyzed in this write up. It is sacrosanct to mention that, by such division within PDP at as then, there were two faction leaders in PDP, all with followers throughout the federation, with each factions organizing its own congress and laying claim to the occupation of the National Secretariat of the party as of right; both factions also chose their respective leaders in all parts of the states of the Federation. As at then, there was the Ahmed Markaffi led faction and the Sen. Alimodu Sheriff led faction respectively, same structure was also duplicated in all States of the Federation. It is also important to state that each of the factions were blessed throughout the federation with massive followers, all divided along political lines within the party. Could the above be said of the current APC?

On issues relating to the last question above and other poser questions, I make bold to analyze its legals perspectives as follows:

The Apex court had interpreted the nature of political party vis-à-vis the meaning of ‘division’ envisaged under the constitution of Nigeria. On the Nature/status of a political party the Apex Court held in the case of ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588(SC) as follows:

"I agree with most learned counsel for the respondents that a Political Party in the eyes of the law and under the Constitution is a corporate legal entity represented by its National Officers not sectional branches or segments which do not qualify as a Political Party." Per GALADIMA ,J.S.C ( P. 63, paras. F-G )

Before I go further, let it be stated here in line with the above decision, that the legislators are not in the House of Assembly or in the National Assembly on their own accord, but on accord of the people of their various constituencies and on the platform of their respective sponsoring political parties. Just as the status of a corporate body, all that is done by any individual in that corporate body is deemed by law to have been done by that corporate body and/or for the corporate body, while anything done in contravention thereof, a veil of incorporation could be lifted and same would fish out such individual or group, who would be responsible for the consequence(s) of any unbecoming conduct (carried out in the company) in personal capacity.

In line with the above, on whether a person enjoys an elective platform of personal ground or on the accord of the sponsoring party, the Supreme court had held in the case GWEDE V. INEC & ORS (2014) LPELR-23763(SC) ( P. 49, paras. C-D ) as follows:

"...it is settled law that in this country no one can contest an election without first and foremost being a member of a registered political party and, secondly, being sponsored by that party as a candidate for the election. Per ONNOGHEN ,J.S.C

Also, on the meaning of nomination and whether it is the party that sponsors or nominate candidates for election, the Supreme court had held in the case of DINGYADI & ANOR V. INEC & ORS (2011) LPELR-950(SC) ( Pp. 40-41, paras. F-A ) as follows:

Meaning of "nomination"

"According to Advanced Law Lexicon 3rd Edition Report 2003 Book 3, Nomination is defined as appointment, a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named."Per OLUFUNLOLA OYELOLA ADEKEYE ,J.S.C

On the Rules governing nomination and sponsorship of candidates into elective offices the apex court held further in DINGYADI & ANOR V. INEC & ORS at ( P. 41, paras. A-D ) as follows:

"The issue of nomination of candidate is governed by the rules governing preliminaries as to an election. Preliminary rules are those rules which determine intra-party resolutions and nominations to elective offices. The relationship of nomination is between the political party, its members and the electoral body. The intention of the law is to vest nomination of candidates in the membership of a political party and further make nomination a preliminary issue for any person wishing to contest. Nomination of a candidate is exclusively the responsibility of his political party under the Electoral Act 2006."

In the light of the foregoing, could it be said that the Decampee National Assembly members were elected into the National Assembly on their own accord and/or platform? Can they decamp, defect or abandon their sponsoring parties at will without meeting the standards set by the constitution? Answering these questions, I fear the answer is in the Negative.

Quenching further thirsts that lies in the earlier questions raised in this write up, could it be said that if some party members are aggrieved within the party, that would automatically amount to a division and same would be an excuse for the legislatures to decamp? Like an eagle that sees from afar, the Supreme Court had envisaged the present situation at the National Assembly and had perfectly dealt with same using purposive and Golden rules of statute interpretation, thus, on Whether Section 68(1)(g) of the 1999 Constitution as amended justifies a person's defection to another political party, the apex court had settled same in the case of ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588(SC) ( P. 33, paras. C-E ) as follows:

"The principles enunciated by this Court in the two cases, Fedeco v. Goni supra and AG 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." Per MUHAMMAD ,J.S.C

By the above decision, what happened within the APC as a party and leading to a group of aggrieved members called the r-APC can best be described as a quarrel within the party. It is sacrosanct to state here that in line with the apex court decision of Abegunde v. Ondo State House of Assembly, APC as a political party is not whittled down in its roles and legal personality just because a quarrel exists within the party. Therefore, issues of factionalization, fragmentation, splintering or “division” do not even come in.

Methinks I am wrong on my earlier position as to the issues within the party (APC) being a mere quarrel or grievances amidst few members leading to a group of r-APC, still holding the view of the apex court in Abegunde v. Ondo State House of Assembly; if at all there exists factionalization, fragmentation, splintering or "division" in APC, such obviously had not made same impossible or impracticable for APC to function, as the APC as a political party, as its leadership and structures all through the federation of Nigeria are intact and well-functioning.

In a plethora of cases decided by the apex Court, it has been held that some of the rules and cannons of interpretation which apply to ordinary statutes do not sometimes apply where dealing with the Constitution of a Country. This point has been stressed in the case of NAFIU RABIU v. KANO State (1980) 8-11 SC 85 at 128 per Udoma, JSC (of blessed memory) thus: "... a mere technical rules of interpretation of statutes are to some extent inadmissible in a way to defeat the principles of government enshrined in a Constitution."

Following the above decisions and provisions of law, could it be said that the defection of the National Assembly members into various parties is not illegal? I fear the answer is in the Negative.

Premised on the above facts and laws, The president of the Senate is enjoyed by section 69 (2) of the constitution to give effect to subsection 1 of section 69 of the constitution. For avoidance of doubts the provision of Section 69(2) reads as follows;

“The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.”

Considering the above provision mandating the Senate President and/or the Speaker of the House of representative to give effect to the provision of section 68(1), in a situation where the President of the Senate or the Speaker of the House of Representative are also caught in the web defection (active or passive) or he is in sympathy with the defectors / decampees, especially where he fails to declare where his intention lies in order to sabotage the constitutional provisions of section 69(2), what happens?

This lacuna in our constitution as touching on the above issue is grave but not incurable. In the circumstance, what can be done? Legally, it is farfetched. It is a fundamental principle of justice rooted in the latin maxim ‘Nemo judex in causa sua’ which means no man is permitted to be a judge in his own case. By that and several other principles of law and justice, some options and way out can be exploited as follows:

Such Senate President or the Speaker of the House of Representative and/or other decampees can be expelled by their respective sponsoring parties for violation of the affected parties’ Constitution, especially the provision relating to engagement in anti-party activities. Upon suspension they automatically lose their sits.
The Attorney General can apply to court for the court to give effect to the vacancies occasioned by such defection, including that of the Senate President or such Speaker of the House of Representative and same would be adequately executed upon issuance of declarative and consequential Order of the court of competent jurisdiction.
The option available under section 69 of the constitution of Nigeria can also be activated and/ exploited by members of the various constituencies of such defecting lawmaker and the Independent National electoral commission

The full legal perspectives of the above suggested way-outs, if to be adequately addressed would open another floodgate of legal issues and argument.

RICHARMOND O. NATHA-ALADE

Solicitor, Advocate & ADR Practitioner

lordricharmond@gmail.com