LEGAL IMPLICATIONS OF ‘DEFLECTION’ BY ELECTED EXECUTIVE ARM OF GOVERNMENT FROM ITS SPONSORING POLITICAL PARTY TO ANOTHER POLITICAL PARTY IN NIGERIA

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There is a trend in the Nigerian politics where some candidates sponsored by a particular political party after winning elections under the umbrella of that political party, turn around to deny their candidacy under the said political party that has sponsored them into office to form alliance and or allegiance and or membership of another political party. The current of such incident is the recent defection by Governor David Umahi (the Current Executive Governor of Ebonyi State) from the Peoples’ Democratic Party (PDP) to All Progressives Party (APC). This paper aims at considering the legal implications of defection by an elected Executive Arm of Government (i.e. the President of the Federation and a State Governor) from its sponsoring political party to another political party in Nigeria.

First and foremost, I wish to state that the 1999 Constitution of the Federal Republic of Nigeria (as amended)-herein after referred to as the Constitution-prohibits deflection of an executive arm of government from its sponsoring political party to another political party and such act is unconstitutional and amounts to a gross misconduct. I shall provide constitutional provisions that prohibit such deflection in the course of this paper. Therefore, such act of such candidate and or elected executive arm of government stands removed on the petition of not less than 1/3 of the members of the National Assembly if such deflector is the President of the Federation or on the petition of not less than 1/3 of the members of the House of Assembly of the State concerned.

I must first of all lay foundation for the political governing standard laid down by the Constitution itself in section 1 of the Constitution thus 1.—(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.’. Furthermore, Section 229 of the Constitution has defined what amounts to a ‘political party’ thus ‘‘political party’’ means any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or a local government council.’ (though noteworthy, section 23 of the (First Alteration Act) 2010, of the Constitution has deleted the word ‘association’ from the provisions of section 229 of the Constitution). From this definition by the Constitution, it is my humble submission that some characteristics of a political party can be deduced as follows: (1) a political party canvasses for votes (from electorates) in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or a local government council; (2) a political party sponsors a candidate into political officeof President, Vice-President, Governor, Deputy Governor or membership of a legislative house or a local government council (3) a political party expends funds in sponsoring a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or a local government council. Also,Section 221 of the Constitution has restricted and or limited that only a political party can canvass for votes and sponsor candidate (except in the newly amended provisions of the Constitution that provides for independent candidacy) into an elected office thus ‘221. No association other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.’. What this section means in my humble view (having regard to the context of this paper) is that no candidate that was sponsored into an elected executive office shall deflect from such political party after such political party has won the heart of the people (the electorate voted him into office) to refuse and or deny and or deflect such political party and to join and or form membership and or allegiance of another political party.

Furthermore, the Constitution has made clear provisions for qualifications of who becomes the President of the Federation and who becomes a Governor of a State of the Federation in Section: 131(c) of the Constitution and section 177(c) of the Constitution respectively thus: section 131 (c) of the Constitution ‘131. A person shall be qualified for election to the office of President if— (c) he is a member of a political party and is sponsored by that political party;’.Section 177(c) of the Constitution ‘177(c). A person shall be qualified for election to the office of Governor of a State if (c) he is a member of a political party and is sponsored by that political party;’. However, there is a recent amendment to this requirement for sponsorship by a political party. Significantly, the new law eliminates the requirement that any person vying for any of the above-mentioned elected executive offices be affiliated with a political party. As has been seen above, prior to the enactment of this act, Nigeria did not permit independent candidacy of any kind, and a candidate for the National Assembly, a state house of assembly, a governorship, or the Presidency had to be ”a member of a Political Party and be sponsored by that party to be eligible to contest election. See: the Constitution Alteration Act, 2016,signed into law by the President of Nigeria On May 31, 2018. Nevertheless, it is my humble submission that the defection by Governor David Umahi of the Ebonyi State having been sponsored already by Peoples’ Democratic Party (PDP) (to deflect to the All Progressives Party (APC)) cannot be valid and or legal and or constitutional, more, his Excellency’s case is not that of an independent candidacy but a candidate sponsored by a political party, hence, it becomes unconstitutional for him to have used the platform of a political party to win his executive Governor’s seat/office to defect to another political party. This act of defection is also a breach of the trust that the electorate had in the political party that they voted for (for the candidate that contested election under their political party of choice to now deflect to another political party that is not the choice-party of the electorate!). This indeed is a ‘gross-misconduct’. Section 143 (11) of the Constitution and section 188(11) of the Constitution provides for what amounts to gross-misconduct  in the following words thus ‘143(11) In this section— “gross misconduct” means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.’, and 188(11) ‘(11) In this section— (a) “gross misconduct” means a grave violation or breach of the provisionsof this Constitution or a misconduct of such nature as amounts in the opinion inthe House of Assembly to gross misconduct.’. (Underlining is mine for emphases).

Furthermore, the Constitution requires the removal of any of the elected executives (i.e. the President or the Governor) by not less than 1/3 of the National Assembly and the House of Assembly of the State respectively in Section 143 and 188 of the Constitution respectively, especially, Section 143(1) and (2) thus ‘(143.—(1) The President or Vice-President may be removed from office in accordance with the provisions of this section. (2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the National Assembly— (a) is presented to the President of the Senate ; (b) stating that the holder of the office of President or Vice-President is guilty of misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the President of the Senate shall within seven days of the receipt of the notice cause a copy thereof to be served on the holder of the office and on each member of the National Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the National Assembly.’. Also, Section 188(1) and (2) thus ‘188.—(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section. (2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly— (a) is presented to the Speaker of the House of Assembly of the state ; (b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall within seven days of the receipt of the notice cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegations by holder of the office to be served on each member of the House of Assembly.’.

Finally therefore, it is my humble submission that it is unconstitutional for any executive President or Executive Governor of a State to deflect from his political party to another political party while still maintaining the said elected office and such a Governor cannot deflect unless and until he concludes his tenure and at the time of another election contest to join his political party of his choice as of right(but definitely not while he still enjoys the elected office which was sponsored by a political party), else, he can be removed by the petition of not less than 1/3 of the respective legislators in either the National Assembly or the House of Assembly of the State as the case might be. Therefore, the defection by GovernorDavid Umahi of the Ebonyi State having been sponsored already by the Peoples’ Democratic Party (PDP) to deflect to the All Progressives Party (APC) cannot be valid and or legal and or constitutional.

Email: hameed_ajibola@yahoo.com

 

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