Our chief concern here is to discuss the legal consequences of the current spate of party defection by members of the Peoples Democratic Party (PDP) to the All Progressive Congress (APC). We shall leave the task of recounting Nigeria's history on carpet crossing to historians and shall not be bordered by it. We shall also not allow ourselves to be drawn into arguments as to the morality / propriety of carpet crossing.
The media is awash with the news of the defection of 37 PDP members of the House of Representatives to the APC. Already, five PDP governors have dumped the party for the APC. The collapse of the PDP as the ruling party in Nigeria and as Africa's biggest political party seems imminent as unconfirmed reports say that twenty-two senators are planning to also dump the party for the APC.
Nigerian law on carpet crossing begins and ends with the provisions of Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution of the Federal Republic of Nigeria. These sections provide that:
"A member of the Senate or House of Representatives or State House of Assembly shall not vacate his seat in the House of which he is a member if being a person whose election into the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which the 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 of a merger of two or more political parties by one of which he was previously sponsored. "
It is interesting to note that unlike the purport of above provisions, Sections 135 and 180 of the said Constitution which provides for circumstances under which the President or his Vice, and a Governor or his Deputy could cease to hold office does not mention party defection as a ground for vacating or ceasing to hold office.
From the above provisions therefore, Nigerian law on carpet crossing could be summarized as follows:
1. A Legislator in Nigeria could lose or vacate his seat in parliament if he defects from the party that sponsored him into the Legislative House to another party.
2. A Nigerian Governor, Deputy Governor, President or Vice President can not vacate or cease to hold office for defecting from the political party that sponsored him into office to another.
3. Before a Legislator in Nigeria could be made to lose his seat in parliament for defecting to a party other than the one that sponsored him into the House, the principal officer of that Legislative House (the Senate President, the Speaker of the House of Representatives or the Speaker of the State House of Assembly as the case may be) or a member of that Legislative House must first present evidence satisfactory to the Legislative House concerned that a member has defected from the political party that sponsored him into the House to another political party and has by operation of law vacated his seat in Parliament.
4. It follows from the above that if there is no satisfactory evidence presented to the Legislative House on a member's defection, the member who is alleged to have defected can still retain his seat. He will however continue to be known and addressed as a member of the party that sponsored him into the House.
5. A Legislator in Nigerian can cross carpet to a party other than the one that sponsored him into the House and still keep his seat if he can prove that his defection was as a result of a division within his former party.
6. Also, a Legislator in Nigeria will not lose / vacate his seat even though he has defected from the party sponsored him to another party if he can prove that his membership of a new party is as a result of a merger of two or more political parties or factions by one of which he was previously sponsored.
The position that while a Legislator in Nigeria is liable to lose his seat in parliament for cross carpeting to another party, the President, Vice President, Governor or Deputy Governor is not liable and can not be forced to vacate or cease to hold office for the same reason was endorsed by the Nigerian Supreme Court in the case of AGF V. Atiku Abubarkar (2007) 4 SC (pt.11) 62 where the issue before the court was whether the Vice President's defection from the PDP (on whose platform he was elected into office) to the Action Congress of Nigeria (aCN) meant that he had automatically vacated and ceased to hold that office.
The Supreme Court held that it is only Legislators that are liable to vacate their seats in parliament for defection to a different party from the one that sponsored them into office. The supreme held that the constitution does not envisage or provide for the vacation / cessation of the office of the President, Vice President, Governor or Deputy Governor for defection from the party that sponsored them into office to another party. The Apex court held therefore that Vice-President Atiku Abubarkar was entitled to keep and / or in office even though he had effected from the PDP to the ACN.
Again, the position that a legislator may lose his seat in parliament for cross carpeting to another political party has been affirmed by the court in some decisions. For instance, the Federal High Court of Nigeria sitting in Akure in the case of Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors. sacked Mr. Abegunde, a House of Representatives member representing Akure North and South, Ondo State for defecting from the Labour Party to the ACN. Mr Abegunde had been elected into the House under the auspices of the Labour Party in the April 2011 General Elections. He however, defected to the ACN during the currency of the tenure of the House. The court held that Mr Abegunde had vacated his seat and ceased to be a member of the House by operation of law. This decision was affirmed and upheld by the Court of Appea in Re Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors. (2014) LPELR-23683 (CA), Appeal No.CA/AK/110/2012.
Again, in the case of Hon. Michael Dapialong v. Chief (Dr) Joseph Chibi Dariye, Appeal No. SC 39/2007 the Supreme Court took judicial notice of the fact that between 25th and 26th July, 2006, fourteen members of the twenty-four members of the Plateau State House of Assembly including the Speaker and the Deputy Speaker thereof defected from the PDP platform on whose they were elected to the House in 2009 to the Advanced Congress of d Democrats (ACD) as a result of which the said 14 members were held to have vacated their seats by operation of law.
Relying on the Supreme Court decision in AGF V. Atiku Aburbakar therefore, we can safely conclude that the five PDP Governors that had defected to the APC can validly do so without being liable to vacate or cease to hold their offices. This is because the Constitution simply does not penalize the President, Vice President, a Governor or Deputy Governor who dumps the party that sponsored him into office for another party. Also, unlike Legislators, these members of the executive arm of Government are not required to proffer explanations or reasons to justify defection.
However, some persons have argued that even though the Constitution does not penalize defection by Governors, the Supreme Court decision in Rotimi Amaechi v INEC Appeal No. SC 525/2007 could be relied upon to effect the vacation from office of Governors who defect from the parties that sponsored them into office to another political party before the expiration of their tenure. Acording Mr Dan Nwayanwu, Chairman of the Labour Party of Nigeria, the Supreme Court's dictum in Amaechi's Case to the effect that it is the political party and not the candidate for which the electorate cast their votes could be interpreted and applied to mean that Governors who get elected into office only to dump the party that sponsored them into office for another party should vacate or cease to hold office upon defection.
Mr Dan Nwamyawu in an interview granted to Sunday Trust Newspapers in 2007 advocated that Governors who defect to parties other than the ones that sponsored them into office should be kicked out of office on the basis of the decision in Amaechi v. INEC. We humbly disagree with this position. This is because the Constitution does not impose any penalty or legal disability on carpet crossing by Governors. Secondly, the Supreme Court in Amaechi's Case did not decide the issue of the consequence of a Governor's defection from his party. Rather, the question in Amaechi's case was whether a person who did not contest an election could be heard to challenge an election or be declared as Governor. The decision in AGF V. Atiku Abubarka for all intents and purposes remains the authoritative exposition of the law on party defection in Nigeria.
It is by now beyond doubt that the five PDP governors who had defected to the APC are entitled to do so without any attendant penalty or legal disability. But can the same be said of the 37 members of the House of Representatives members who have defected to the APC? Can they validly dump the PDP for the APC without losing their seat in parliament?
By a letter addressed to the Speaker of the House of Representatives, titled 'Communication of Change of Political Party' and dated the 18tth December, 2013, the 37 defecting Federal Lawmakers explained that their defection from the PDP to the APC was as a result of the internal crisis within the PDP. The Lawmakers also premised their defection from the PDP to the APC on the fact that the PDP has broken into two factions: the New PDP and the Old PDP. The so-called New PDP consisting of the dissatisfied and disgruntled members of the party, the majority of whom have defected to the APC.
It is to be recalled that in Agundade's case, he had argued that given the internal crisis, division and factionalization within the Labour Party, he was entitled by virtue of the proviso in Section 109 (1) (g) of the 1999 Constitution to defect from the Labour Party to the aCN without losing or having to vacate his seat in the House. The court however ruled that since he could not prove division or factionalization within the Labour Party, he was not entitled to keep or retain his seat after he decamped to the ACN. That he vacated his seat upon defection to the ACN by operation of law.
The proviso to the provisions of Section 68 (1) (g) and 109 (1) (g) of the 1999 Constitution are to the effect that although a Legislator would ordinarily lose his seat if he defects to a party different from the one that sponsored him into the Legislative House, he is entitled to keep his seat if he can prove that:
1. He defected to a new party as a result of division within the party that sponsored him into the house.
2. His membership of the new party is as a result of the merger of two or more political parties or factions by one of which he was previously sponsored.
Before we proceed to examine whether the internal crisis rocking the PDP falls within the proviso to Sections 68 (1) (g) and 109 (1) (g) of the Constitution, it is pertinent to determine what constitutes division in a political party. The constitution does not define word "division". The Oxford Advanced Learners Dictionary of Current English, 6th Edition, defines division as a disagreement or difference in opinion or way of life etc especially between members of a society or an organization.
According to Professor Okey Okon of the South Central University, California, USA, division could arise from:
1. Ideological differences and
2. Organizational differences.
Organizational differences denote conflict, division, crisis etc arising as a result of the way and manner the party is run, operated or managed. In fact, all conflicts and crises arising from the management and operation of the organic structure of the political party fall under the category of organizational differences. Conflict, division or crises arising from organizational differences bordering on such issues as internal democracy mechanism of the party, conduct of primaries election, funding, election of principal officers of the party, adoption of candidates as party flag bearer for election, handling of party finances , planning and execution of election campaign strategies etc come under organizational differences.
It is a notorious fact that the PDP has from inception been bedeviled by internal crises caused by the occurrence of undemocratic practices within the party. The defecting 37 Federal Legislators have alleged that their defection from the PDP to APC was as a result of division and internal crises within the party and that they are entitled to keep their seats in parliament. We do not know the particulars of the alleged division or crises within the PDP but if their allegations are true then they are entitled to keep their seats in parliament.
We shall now turn our attention to the issue of whether ideological differences constitute division as to entitle a defecting legislator to retain his seat in parliament. Ideological differences relates to conflict, disagreement, crisis or division arising from a conflict between a party member's ideas, beliefs, conviction, principles, philosophy or policy with those of his political party. When a member disagrees with his party's ideas, policies, programs, philosophy or principles on socio- political or economic issues does this disenchantment or disagreement with his party entitle him to defect to another party without having to lose / vacate his seat in parliament? Does this conflict or disagreement with his party constitute division as envisaged by the proviso in Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution?
Professor Okey Okon is of the opinion that ideological differences constitute division within the meaning of Sections 68 (1) (g) and 109 (1) (g) of the Constitution and at such empowers a Legislator to defect to another party without losing his seat whenever he disagrees with the policy and philosophy of his party. According to the learned Professor, ideological differences are a form of division which should justify a legislator to defect to another party without having to lose or vacate his seat. He opined that any interpretation of the law to exclude ideological difference as constituting division is erroneous. The learned Professor further posits that failure to treat ideological differences as division will deprive Legislators of the sense of safety and protection they need to stand up for what they believe in. He held that such a narrow reading of the law will provide perverse incentives for Legislators to emphasize compliance at the expense of principles and conviction to expediency.
We however beg to disagree with this position. With due respect to the learned professor, the proviso to Section 68 (1) (g) and 109 (1) (g) of the Constitution can not be objectively interpreted to mean that whenever a legislator disagrees with the policy or philosophy of his party on socio-economic political or other issues he can dump his party for another party and still retain his seat in parliament. Such an interpretation of the law can not be the intendment of the drafters of the Constitution. It is important to note that the relevant provision reads … "As a result of a division in the political party" … This shows clearly that what the law envisages is a situation where there is a conflict or disagreement within the party that leads to internal crisis or instability in the party. In other words, ideological differences alone can not justify defection.
However, for ideological differences to justify defection, they must be of such magnitude and intensity as to lead to crisis, instability, factionalization and conflict within the party. The Noscitur Associis rule of construction of statutes states that the company a word keeps suggests its meaning. The word "division" as used in Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution are accompanied by the words "merger" and "factions" which words denotes a change or alteration in the organic structure of a political party. We therefore agree with Professor Okey to the extent that ideological differences can constitute division which can justify defection only when such differences are of such magnitude and intensity as to lead to instability or crises within the party. A mere difference in opinion or belief will not suffice to justify defection.
Indeed, legislators do not have to defect to a new party to express or hold opinions or views contrary to those favoured by their party unless of course doing so would result and actually results to instability and crisis / conflict within the party. It is submitted that to allow defection merely on the ground that a legislator disagrees with the policies or ideological position of his party on certain socio-economic cum political or moral issues would defeat the intention of the framers of the constitution. The constitution clearly intends to discourage and penalize legislators for defection except on rare and exceptional circumstances. Making mere differences in opinion and belief a ground for political defection would provide legislators an excuse for political prostitution.
It is interesting to note that the 37 defecting legislators have also sought to justify their defection on the ground that the PDP was divided into two political parties; the old PDP and the new PDP which consist of the defecting and disgruntled member. They alleged that the new PDP has formally merged with the APC. We are of the opinion that if these allegations are true then the 37 defecting legislators are entitled to so defect without having to lose their seats. It is pertinent to note that the PDP has obtained a court order declaring the so-called new PDP illegal and restraining its members from parading themselves as PDP members. The question that arises from this development is, what is the legal effect of this order on the rights of these defecting legislators to keep their seats. It is our humble opinion that the court order has no effect whatsoever on the rights of the defecting legislators to keep their seats. The order merely prohibits the use of the name PDP by the defecting faction. It does not mean that the defecting faction is an illegal group because they are not a group of criminals or bandit.
Indeed, Sections 39 and 40 of the 1999 Constitution guarantees the right to freedom of expression as well as the right to freedom of association. The court order therefore can not operate to deprive or in any way prejudice the defecting members' entitlement to keep their seats.
The PDP has reacted to the defection of its member, especially the 37 Federal lawmakers by saying that any member of the party that renounces its membership of PDP shall be made to vacate his seat. There are also reports in the media that the PDP has gone to court to obtain a declaration for the vacation of the seats and offices of the defecting legislators and five governors. Let's keep our fingers crossed as we watch the drama unfold.