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Friday, 17 January 2014

Defection: Courts to the rescue of lawmakers?


Jonathan, David Mark and Tambuwal

The Senate insists that any member who defects will be made to lose his seat, the House of Representatives says any member is free to defect and most Nigerians are perplexed, not knowing the right course of action. ISE-OLUWA IGE, OBIORA IFOH, GEORGE OJI, TORDUE SALEM and OMEIZA AJAYI attempt to arrive at a nexus on the proper route to trod. Excerpts:
Does defection by lawmakers contravenes the constitution? This is the question that will be tested in the courts by the parties involved, namely, the Peoples Democratic Party, PDP and the All Progressives Congress, APC and lawmakers who had defected from the PDP to the APC and intending defectors.
Section 68 (1)(g) of the 1999 constitution states that: 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.
The very contentious part of that law is if the PDP, being the ruling party has division within it. While the defecting lawmakers have argued severally that there indeed existed division in PDP, leading to the breakaway and formation of the new PDP (now proscribed), the party however countered the division theory saying that not only is PDP one, but that a competent court has pronounced it to be one. But the defecting lawmakers will not have any of these, insisting that as at the time they left, the ruling party was factionalised.
However, legal luminary, Chief Richard Akinjide said the defecting lawmakers are expected to lose their seats and in his opinion, they are still retaining their seats because they have not really left the PDP. He challenged anyone to provide evidence as to why the lawmakers should remain in the House.
PDP spokesperson, Chief Olisa Metuh, said “defection is treacherous and a huge betrayal not only of the PDP but millions of voters who worked timelessly hard for their election on the platform of the PDP in their respective constituencies. As lawmakers, the defectors must, no doubt be aware of provisions of section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which clearly states conditions upon which a member of the legislature will change platforms. For the avoidance of doubt, the courts of our land have declared that the PDP is one and not bedevilled by any factions. Any member of the national or state Assemblies who therefore renounces his membership of a united PDP must be ready to face the consequences of defection in line with provisions of the Constitution.”
However, Hon. Sam-Tsokwa said: “Nigerians ought and, indeed, deserve to know that apart from the 1999 Constitution, there is no legislation in Nigeria against cross carpeting or defection. Indeed, the constitution subtly endorses cross carpeting or defection in sections 68(1) (g); 109(1) (g); 135 and 180 of the 1999 Constitution”.
These sections are similar except that they refer to the offices of the National Assembly, state House of Assembly, the President and the governors respectively.
Will the court resolve the defection crisis?
Already, the PDP has gone before a Federal High Court sitting in Abuja to halt the on-going moves by its members at the National Assembly from defecting to the opposition APC. The party is also urging the court to stop the House of Representatives from changing or altering its leadership, following the purported mass defection of its members to the APC. The dual requests were contained in two separate suits before the high court.
Listed in one of the suits as defendants were the House of Representatives, Speaker of the House, Aminu Tambuwal; Deputy Speaker, Emeka Ihedioha; Majority Leader, Mulikat Akande-Adeola; Deputy Majority Leader, Leo Ogor; Chief Whip, Isiaka Bawa; Deputy Chief Whip, Ahmed Mutkar; Minority Leader, Femi Gbajabiamila; Deputy Minority Leader, Sumaila Kawu; Minority Whip, Samson Osagie and Deputy Minority Whip, Garba Datti as well as the 37 members of the PDP who defected to the APC.
Attempts by the PDP to get separate interim orders to either stop the National Assembly members from cross-carpetting or the House of Representatives from changing its leadership were rejected by the trial courts.
For instance, when the suit seeking to stop the House of Representatives from changing its leadership came up for hearing on Monday, counsel to the PDP, Yunus Ustaz Usman, SAN, made frantic efforts to convince the court to issue a restraining order against the House of Representatives from changing its leadership, but the court refused. His situation was made worse by the submissions of the defence counsel to the effect that the suit was not ripe for hearing since service was only effected on them last Friday by 4.54 pm.
Specifically, Chief James Ochuli, SAN, counsel to Speaker of the House (Tambuwal), Gbajaiamila, Osagie and Kawu argued that having been served on Friday in the evening, the suit had not met the statutory requirement of 48 hours allowed for his clients to respond to it, and therefore not ripe for hearing. The lawyer argued that by virtue of section 15(4) of the Interpretation Act, the effective date to begin to count service on the defendants was Monday because holidays are always left out for computation purposes. He further informed the court that the House was going to resume from recess on Tuesday, January 21, and that there was no need granting an interim injunction.
In his submissions, constitutional lawyer and counsel to some of the defected members of the party, Sebastine Hon, SAN, contended that if the court acceded to the request of the plaintiff counsel to proceed with the hearing of the motion, it would constitute a breach of the statutory 48 hour rules as well as the fundamental right of his clients. He anchored his argument on the fact that service on Friday which was even after official closing hours could not be effectual. In addition, he argued that even if the court would bend backward to take the application of the plaintiff ’s counsel, he said he would have to come formally in writing as required by the rules of court.
To cap it all, Mohammed Magaji , SAN, while adopting the submissions of his colleagues posited that technically speaking, there was nothing before the court for determination, since the issue of service was yet to be resolved.
When it dawned on the plaintiff ’s counsel that he could not proceed with his suit, given the staunch resistance from the defence team, he urged the court to make an interim order preserving the res (subject matter) from being destroyed. He said failure to restrain the defendants, there would be a breakdown of law and order that would not only paralyse the activities of the party, but deal a deadly blow to it.
Usman had, in his affidavit in support of the motion, told the court of how the Minority Leader of the House, Gbajabiamila threatened the PDP via telephone calls and interviews that upon their resumption from their recess, they would remove all the principal officers of the House of Representatives.
But rather than accede to the request of the plaintiff, Justice Adeniyi ordered the defendants to file their responses and other relevant processes on January 16, and file on the plaintiff and thereafter adjourned the matter to January 20, 2014 for hearing.
In the originating summons, the plaintiff raised the following questions for the determination of the court”
*Whether in view of the mandatory provision of section 68 (1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and in view of the pendency of suit No. FHC/ABJ/ CS/621/2013 between Senator Bello Hayatu Gwarzo and 78 ors. vs Alhaji Bamanga Tukur and 4 ors before the Federal High Court, Abuja division, the 23rd to 79th defendants can validly function as members of the 1st defendant, contribute to or vote on any motion and or debate in the proceedings of the 1st defendant with a view to removing or sanctioning 2nd to 10th defendants or any of the principal officers of the 1st defendant.
*Whether in view of the mandatory provision of section 68 (1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and in view of the pendency of suit No. FHC/ABJ/ CS/621/2013 between Senator Bello Hayatu Gwarzo and 78 ors. vs Alhaji Bamanga Tukur and 4 ors before the Federal High Court, Abuja division, the 23rd to 79th defendants can lawfully alter the composition or constitution of the leadership of the 1st defendant.
The party is asking the court for the following reliefs: *A declaration that in view of section 68 (1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and in view of the pendency of suit No. FHC/ABJ/CS/621/2013 between Senator Bello Hayatu Gwarzo and 78 ors. vs Alhaji Bamanga Tukur and 4 ors before the Federal High Court, Abuja division, the 11th to 52nd defendants (who are 23rd to 79th plaintiffs in the aforementioned suit) cannot lawfully vote and or contribute to any motion for the removal or change of any of the principal officers of the 1st defendant;
*A declaration that the 11th to 52nd defendants who are 23rd to 79 plaintiffs in the suit No. FHC/ABJ/ CS/621/2013 between Senator Bello Hayatu Gwarzo and 78 ors. vs Alhaji Bamanga Tukur and 4 ors before the Federal High Court, Abuja are not competent to sponsor, contribute or vote for any motion for the removal or change of any of the principal officers of the 1st defendant.
*An order of perpetual injunction restraining the 2nd to 52nd defendants from altering or changing the leadership of the 1st defendant
Will defection continue in the House at resumption next week?
The defection that began in the House of Representatives on December 18, last year, is expected to continue on the resumption of the Green Chamber on January 21, though some lawmakers have argued that the defection of 37 PDP lawmakers to the opposition APC and the more defections that would follow would not threaten the PDP.
House spokesman, Zakari Mohammed (APCKwara), has said that both the Speaker, Aminu Tambuwal and his Deputy, Emeka Ihedioha would not be changed, as according to him, both are products of the collective decision of the members. The lawmaker said that the House rules defined the status of the leadership of the House at all times.
He allayed fears that some principal officers would lose their seats in the event that the APC formally records a majority in the lower chamber of the National Assembly.
He said: “For the avoidance of doubt, the leadership of the House of Representatives as is embodied in the presiding officers emerged from the popularity of the candidates on one hand and the popular votes of members on the other and not strictly on party lineage. Therefore, defection or no defection, the leadership of the House of Representatives remains intact, having enjoyed and is still enjoying the confidence of the members.
“Nigerians are hereby assured and reassured that defection or no defection, the House of Representatives remains and shall so remain Nigeria’s House of Representatives bound together by one solemn constitutional duty, that is to make laws for the peace, order and good government of the federation or any part thereof. The House has a date with history as encapsulated in its Legislative Agenda and this date it must keep faith with in the overall interest of Nigeria.”
The Rules of the House allows a party with the simple majority of 181 to select principal officials.
Earlier, the Chairman of House Committee on Rules and Business argued that the House would rely on Order 7 Rule 2 to resolve the issues faced by the House on the defections. But other lawmakers have disagreed, insisting that it was time Deputy Speaker was given the boot and the present Minority Leader allowed to assume the Deputy Speakership of the House.
Why defections in Senate is not likely
The defection story in the Senate is quite different from what has transpired at the House. Senators from the merging political parties have been foot-dragging from formally announcing their crossover. Although 22 senators have signified their intentions to defect to the new APC and indeed, were part of the 79 lawmakers (22 senators and 57 House members) that approached an Abuja Federal High court to seek a restraining order on the presiding officers of the National Assembly not to declare their seats vacant, no serious efforts as at date has been made by the senators to walk their talk.
The 22 senators are Bukola Saraki (Kwara Central), Bello Gwarzo (Kano North), Senator Abdullahi Adamu (Nasarawa West), Senator Magnus Abe (River South-East), Wilson Ake (Rivers West), Senator Shaaba Lafiagi (Kwara North), Danjuma Goje (Gombe Central), Aisha Alhassan (Taraba North), Ali Ndume (Borno South), Ahmed Zannah (Borno Central) and Simeon Ajibola (Kwara South).
Others included Bindowo Jubrilla (Adamawa North), Abdulaziz Usman (Jigawa North-East), Danladi Sankara (Jigawa North-West)), Abdulmumuni Hassan (Jigawa South-West), Hassan Barata (Adamawa South), Umaru Dahiru (Sokoto South), Ahmad Maccido (Sokoto North), Ibrahim Gobir (Sokoto East), Garba Mohammed (Kano Central), Isa Galaudu (Kebbi North) and Ahmed Alkali (Gombe North).
Out of the whole lots of the senators, only a few of them appear to be serious about their defection plans. From their actions and utterances, the very serious ones appear to be only Saraki, Adamu, Goje and Abe.
The likes of Alhassan and Ndume who initially showed signs of seriousness in the defection bid somewhere along the line appeared to have been cowed and subsequently became very lukewarm about the move.
National Assembly watchers have adduced a number of reasons to explain the indecision of the senators to actualise their defection plans like their colleagues in the House. Firstly, there is the notion that the senators appear to be cowed by the towering influence of the Senate President, David Mark, who will stop at nothing to ensure subtle victimisation of any of the defecting senators.
There is also the reason that most of the senators who have indicated their willingness to defect might not do so and backdown when the chips are down and thus make it impossible for the opposition to realise the required majority in the Senate unlike their colleagues in the House.
Besides, there is in addition to the theory that the senators are living up to their character as an institution that functions to stabilise the polity and therefore will not be willing to take actions that may jolt or heat up the nation’s political system.
While all these permutations have been on-going, a group, which goes by the name Nigeria Sustainable Democracy Network, NSDN, obviously conscious of the above considerations have urged senators to dam the consequences and act in line with their counterparts in the House of Representatives to be counted with the people.
In a widely published advertorials last week, the group recalled that since 2007, when Mark assumed the leadership of the National Assembly, many senators have defected from other political parties to the PDP without any adverse consequences. It listed about 14 instances, where such defections by senators from other parties to the PDP had taken place since 2007 till date.
“It is expected that in the circumstance that the Senate President should be consistent in his principled approach and management of cross carpeting by any senator of the Federal Republic. Any attempt to tamper with this established and accepted norms and practice is enough to plunge this nation into another political quagmire, especially where over 20 senators are alleged to have prepared to defect from the PDP to the APC,” the group cautioned in the said advertisement.
Why INEC is powerless to halt defection.
Obviously rattled by the defection, the PDP had written the Independent National Electoral Commission, INEC, urging it to declare the seats of the lawmakers vacant, but the commission has clearly thrown the letter into the waste bin, a development that saw the APC rising from 135 to 172 members, while the PDP slide to 171.
Interestingly, INEC cannot, at least by its own estimation, declare vacant the seats of 37 members of the House of Representatives who defected from the PDP to APC. As expected, the 37 lawmakers had at a session presided over by Speaker Aminu Tambuwal, hinged their decision on the factionalisation in the ruling party.
Consequently, the Chief Press Secretary to the INEC chairman, Kayode Robert Idowu, said the law does not empower the commission to do so, saying there are appropriate authorities to perform such duty. According to him, it is not within the purview of INEC to take such a decision. He said INEC is not the one to declare seats of elected public office holders vacant and that INEC is not going to do that.
He said: “It has never been INEC’s duty to declare seats vacant. That is not what the law provides for. INEC’s job is to conduct elections if, and when, seats are declared vacant by the appropriate authorities.”
Options left for the ruling PDP
As it is now, three options remain open to the PDP. The first option is since it is clear that the PDP can no longer muster the required majority in the House of Representatives, the party may have to really “work” on the Senate and ensure that it keeps the party’s members in line. With the party controlling the Senate, it would still be difficult for the APC-controlled House to adopt resolutions that could embarrass the PDP and the presidency.
The second option which may seem herculean would be to rally the constituents of the defectors to initiate the process of recall. With some lawmakers not clearly on ground, the PDP can at least hope to successfully “engineer” the recall of a few of them.
The last option, which is the court option incidentally, is what the party has chosen. Although the high court had twice rejected the invitation by the PDP to stop defection of its members and the move to change leadership of the House of Representatives, it is still early to conclude that the PDP had lost in its bid. It is expected that the court will hear out all parties in the case and decide on merit the constitutionality of defection of members of National Assembly either out of the ruling PDP to the opposition APC or from the opposition political party to the ruling PDP. As it is, time will tell where judicial pendulum will swing in this matter.

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