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Tension in political parties over Ebonyi judgement
By OBINNA EZUGWU
The federal high court judgment sacking Ebonyi State governor, Dave Umahi, the state deputy governor, Eric Kelechi Igwe, as well as 17 members of the House of Assembly for their defection from the People’s Democratic Party (APC) People’s Democratic Party (APC), has triggered heated debate and anxiety in the Nigerian polity, and evidently put many political office holders who are in similar situation as Umahi in some discomfort.
Defection remains a reoccurring feature of the the country’s politics, and today, several lawmakers, from state to national assembly, as well as state executives, parade as members of political parties other than those on whose platforms they won their elections.
It’s practise that in recent years, both the PDP and the APC have indulged in. In the last dispensation, Samuel Ortom, governor of Benue State defected from the APC to the PDP, so did his Sokoto State counterpart, Aminu Waziri Tambuwal. Similarly, in 2020, Godwin Obaseki, governor of Edo State, ditched the APC for the PDP when he was denied the party’s governorship ticket.
Indeed, in the aftermath of Umahi’s sack, the APC is reported to have dragged the affected governors to court.
But while in the case of the all three above, their current mandates were won in their present political parties, same cannot be said of governors of Zamfara and Cross River who, like Umahi, defected from the PDP to the APC from, along with lawmakers in their respective states, after 2019 general elections.
In the immediate, there is uneasy calm in both government houses following Umahi’s sack, with governors of both states whose cases are in court, knowing that they are likely to suffer similar fate if Umahi’s sack is upheld by the Appeal Court and perhaps by the Supreme Court.
Umahi who won a second term seat as governor of Ebonyi under the platform of the PDP in 2019, defected to the APC in November 2020, alongside the deputy governor of the state, Igwe and 17 members of the state house of assembly, all of whom were sacked by the Abuja High Court on Tuesday last week.
The court had in a judgment 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 political 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 restrained 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 judgment, by implication, means that governors of Zamfara State, Bello Matawalle who defected to the APC from the PDP in June 2021, along with the states 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 Nigerias 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. The ambiguity of the of the law in this regard, means that legal practitioners also share different views.
For Olisa Agbakoba, SAN, citing the case of Celestine Omehia and Rotimi Amaechi, the judgment is right because only political parties are permitted in Nigerian law to canvass for votes.
Based on the Supreme Court decision in Amaechi vs Celestine Omehia, and PDP, the candidate who wins political office holds the office in trust for the Party,” he said. The Party is the only legally permissible entity under the Constitution and the Electoral Act, who canvasses for votes.
As a result the political office to which a candidate runs, say for president or senate etc, is to the benefit of the Party exclusively. This view is the decision of the Supreme Court in the Amaechi case referred to.”
But arguing on the contrary, Jubrin Okutepa, SAN, said told Vanguard Newspaper, that the court decision was wrong as, according to him, the high court does not have the power “to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the Governor and the Deputy Governor were elected their seats had become vacant and to order the conduct of election to their offices.”
He argued that, “Jurisdiction to make post election declarations and orders as made by the Federal High Court is not in our constitution.
“Section 251 of the 1999 constitution as amended in subsection 4, limited the jurisdiction of Federal High Court to determine whether the seat of a member of House of Representatives has become vacant or that of members of senate.
“It appears that the draftsman of our constitution did not contemplate that when a governor defects or his deputy then he or she must vacate the office. If that were to be the case, the constitution would have said so.
But let us wait and see what the other higher courts in the land will say, but until then it does not lie in the mouth of the Governor or his Deputy to say they will not obey the orders.”
The debates are bound to continue, even as the case may ultimately get to the Supreme Court. But while those who insist that the judge made the right pronouncement, citing Amaechi versus Omehia, as decided by the Supreme Court, will hope that when it does, Umahi would be asked to leave Ebonyi government house; an outcome that is bound to shake the polity to its very foundation, those who argue that the judge erred, like Umahi himself who has since appealed the judgment, will also look back at a 2009 High Court decision in Zamfara.
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.
