Zamfara State governor, Bello Matawalle and his Cross River State counterpart, Ben Ayade now face uncertain future following the sack by a Federal High Court sitting Abuja, of Engr Dave Umahi, governor of Ebonyi State, the deputy governor, Dr. Kelechi Igwe and 17 members of the state house of assembly for defecting to the All Progressive Congress.
Both Matawalle and Ayade defected to the APC from the PDP in 2021, and face court actions over their defections.
The Ebonyi governor who won a second term seat as governor of Ebonyi under the platform of the People’s Democratic Party (PDP) in 2019, defected to the APC in November 2020, alongside the deputy governor of the state, Kelechi Igwe and 17 members of the state house of assembly, all of whom were sacked by the Abuja High Court on Tuesday.
The court had in a judgement delivered by Justice Inyang Ekwo, held that the total number of 393, 042 votes governor Umahi secured during the March 9, 2019 governorship election in Ebonyi state, belonged to the PDP and same could not be legally transferred to the APC.
According to the court, having defected to the APC, both Umahi and his deputy, not only jettisoned the PDP, but also the votes that belonged to it.
It held that going by the outcome of the governorship election, the office of the governor and deputy governor in Ebonyi state, “belong to the Plaintiff and no other politcal party”.
“There is no constitutional provision that made the ballot transferrable from one party to the other”.
It held that the PDP is bound to retain the votes and mandate that was given to it by electorates in Ebonyi state, as both governor Umahi and his Deputy could not validly transfer same to APC.
The court therefore ordered both Umahi and Igwe to immediately vacate their positions.
It ordered the Independent National Electoral Commission, INEC, to immediately receive from the PDP, names of persons to replace Umahi and his Deputy, or in the alternative, conduct fresh gubernatorial election in Ebonyi state in line with section 177(c) of the 1999 Constitution, as amended.
The court further restraining both Umahi and Igwe from further parading themselves as governor or deputy governor of Ebonyi state.
In the case of the 17 lawmakers also sacked on Tuesday, Justice Ekwo held that the lawmakers, having abandoned the political party that sponsored them, could not transfer the mandate they obtained from the ballot to another political party.
The court held that the Defendants who became members of House of Assembly on the platform of the PDP, could not justify their defection when there was no division in the PDP.
It held that section 109(1) (g) of the 1999 Constitution was purposely couched to ensure that defectors were not allowed to retain their seat in the House, unless such defectors are able to justify their action.
Consequently, it ordered the lawmakers to immediately vacate their positions, even as it restrained them from further parading themselves or acting as members of the Ebonyi State House of Assembly.
The court also made an order of mandatory injunction compelling the Independent National Electoral Commission, INEC, to accept from the PDP, a list of its candidates to replace the sacked lawmakers, as well as to issue Certificate of Return to them.
Alternately, the court directed INEC to within 90 days, conduct fresh election in Ebonyi State to fill up the vacant positions.
It further ordered all the lawmakers to refund all salaries and monies they received from the period they defected to the APC.
The judgement, by implication, means that governors of Zamfara State, Bello Matawalle who defected to the APC from the PDP in June 2021, along with the state’s lawmakers, and Cross River State governor, Ben Ayade who did same in May last year, may suffer similar fate.
Controversy has continued over whether or not elected officials who abandon their parties should vacate the seats won on the platform of the parties they abandoned.
The controversy stems from the fact that Nigeria’s constitution is not expressly clear on the matter.
Section 180(1) of the Constitution encapsulates the circumstances in which a governor may vacate his office as follows: (i) When his successor in office takes his oath of that office or, (ii) he dies while holding such office or, (iii) the date when his resignation from office takes effect or, (iv) he otherwise ceases to hold office in accordance with provisions of the Constitution.
Section 180 (2) provides as follows: “subject to the provisions of sub-section (1) of this section, the governor shall vacate his office at the expiration of period of four years commencing from the date when: (a) In the case of a person first elected as governor under this Constitution, he took the oath of allegiance and oath of office. (b) The person last elected to that office took the oath of allegiance and oath of office or would, but for his death, have taken such oaths.
But it does not say much or anything about a governor who abandons his party for another.
In 2009, a Federal High Court, Gusau, Zamfara dismissed a suit challenging the defection of then governor of the state, Mahmud Aliyu Shinkafi the deputy governor, Mukhtar Anka from the All Nigeria Peoples Party (ANPP) to the PDP.
Both politicians were elected and sworn in on the platform of the ANPP but defected to the then ruling party.
The court had held that the action of the defendants was not illegal going by the provisions of the 1999 constitution and past verdicts of the Supreme Court.
Delivering judgment in the case filed by the ANPP, seeking an order to force Shinkafi and his deputy to vacate their offices, Justice Adamu Bello held that the reliefs being sought by the plaintiffs were political problems that could be solved in the political arena and not in the courts.
“As such, the plaintiffs should have considered taking this case to the State House of Assembly where the members, if fully convinced of the respondents’ misdemeanor if any, can impeach them in accordance with the law,” he had stated.
Justice Bello further ruled that he could not in any circumstance take away the mandate of the respondents. They could vacate office if they choose to resign or they die; they are unable to perform their functions due to infirmity of the mind; they were impeached by the State House of Assembly, he explained.
Bello had said that section 177 of the 1999 constitution clearly states that a person shall only be qualified for election into the office of the governor of the state if he is a member of a political party and sponsored by a political party. He also explained that the same constitution did not state that such a person cannot leave that party after achieving electoral victory.
He had also pointed out that Section 68(1) (g) and (2), and 109 (1g) and (2) only makes provisions for the tenure of members of the legislature and not that of the executive.
He had argued that the case between former Vice-President Atiku Abubakar and the Attorney General of the Federation decided by the Supreme Court could also be applied in this case, in that the court held that a person sponsored by a political party to power could leave the same party to another without breaching any section of the constitution.
Bello then ruled that resigning from a political party is not the same as resigning from office as governor or deputy governor. He added that he had no power to declare the seats of the respondents vacant.
The decision of the Abuja High Court regarding Umahi, is therefore a departure from this initial judgment, and will set the stage for legal fireworks, even as the Matawalle and Ayade must be keeping a close eye on proceedings.
I remain Ebonyi governor – Umahi
Meanwhile, Umahi governor of Ebonyi State, on Tuesday stressed that he remains the Governor of the State not minding the ruling by the Federal High Court, Abuja
Briefing Newsmen in his office at the new Government House, Abakaliki, Governor Umahi who described the ruling as “jungle justice that was purchased” noted that the ruling was not a good development for the Judiciary