Can PDP declare vacant the seats of five governors who defected to the APC?Lawyers: NO

Since the defection of five of its governors to the All Progressives Congress (APC), the Peoples Democratic Party (PDP) has been ill at ease. According to APC, the PDP is plotting to declare vacant the governors’ seats using a “pliant judge”. Was the governors’ defection illegal ? Can the Supreme Court’s verdict in Amaechi vs Omehia apply in the present case? Does PDP have any legal basis to declare the governors’ seats vacant?
sought lawyers’ views.
The All Progressives Congress (APC) has alleged a diabolical plot by the Peoples’ Democratic Party (PDP) to use the judiciary to declare vacant the seats of five PDP governors who defected to the APC.
The party, through its spokesman Lai Mohammed, said PDP was desperately shopping for a ‘‘pliant Judge’’ who would be induced to declare vacant the seats of the five governors (Rotimi Amaechi, Aliyu Wamakko, Rabiu Kwakwanso, Abdulfatah Ahmed and Murtala Nyako).
It said the ruling party has already recruited lawyers for the ‘‘hatchet job’’.
“We are in possession of the various nefarious legal options being explored by the villainous duo of the PDP and the Presidency but we hereby serve a strong notice to the duo that any attempt by anyone through any means other than what is provided for in Section 188 of the 1999 Constitution as amended will not only have grave consequences but will leave the polity severely bruised,’’ said APC.
Was the governors’ action illegal in the first place? If, indeed, the plot is true, does PDP have any legal basis to declare the seats vacant? Does the Supreme Court judgment in Amaechi versus Omehia apply in this circumstane?
The 1999 Constitution provides for how a governor or the deputy can be removed.
According to Section 188, a notice of an allegation must be made in writing and signed by not less than one-third of the members of the House of Assembly stating that a governor or his deputy is guilty of gross misconduct.
Where a panel set up by the Chief Judge reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.
Where the panel report proves the allegation, the House will then consider the report, and if by a resolution supported by not less than two-thirds majority of all its members is adopted, the holder of the office shall stand removed as from the date of the adoption of the report.
“No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court,’’ the Constitution says.
Although the constitution clearly states conditions and procedures under which an elected governor or deputy can be impeached, there have been instances where governors were removed at will.
Under former President Olusegun Obasanjo, Governors Rasheed Ladoja (Oyo); Joshua Dariye (Plateau), Peter Obi, (Anambra) Diepreye Alamieyesigha (Bayelsa) and Ayo Fayose (Ekiti) were removed from office without following due process.

Is cross-carpeting illegal?
The Constitution is not ambiguous on defection of elected politicians from the platforms they won elections on to another.
While it expressly gives conditions for legislatures to cross-carpet in Section 68(1) and 109(1) for National and State Houses of Assembly, no such restrictions are placed on President, Vice-President, Governors and their deputies.
Besides, several elected officials have defected to the PDP without losing their offices, such as Isah Yuguda of Bauchi State; Aliyu Shinkafi of Zamfara State and Ikedi Ohakim of Imo State. The governors of Zamfara and Bauchi defected from the All Nigeria Peoples Party (ANPP) while the Imo governor defected from the Progressive Peoples’ Alliance (PPA), without controversy.
Although Sections 68(1) and 109 restrain elected members of national and state Houses of Assembly from cross-carpeting, Senators such as the late Wahab Dosunmu, Adeseye Ogunlewe, Musuliu Obanikoro, Iyiola Omisore of the Alliance for Democracy (AD); Chief Arthur Nzeribe, John Nwanunu and Dr. Usman Kadir of the All Nigeria People’s Party (ANPP), as well as Satti Gogwin of the then Action Congress (AC), all jumped ships to the PDP and were not stripped of their elected offices.

Earlier court rulings
The defection of Governor Shinkafi and his deputy, Mukhtar Anka, led to a landmark judgment by a Federal High Court in Gusau, Zamfara State.
The ANPP had filed the suit challenging the legality of the governor’s action since it is political parties and not candidates that win election.
Justice Adamu Bello in his judgment, dismissed the case and held that Shinkafi and his deputy acted in accordance with the law.
The court maintained that Section 177 only provides the condition under which a person can be elected as a governor or deputy.
According to the court, the Constitution did not say that having been elected on a platform, the governor or deputy cannot leave if he so wishes.
To further clear the air on the issue, the Supreme Court in the case of Atiku Abubbakar vs the Attorney General of the Federation held that the former Vice President could not lose his position because there is no law to that effect even though he left the PDP for the defunct Action Congress of Nigeria (ACN).
However, with the Supreme Court’s ruling in Ameachi vs Omehia, which held that it is political parties and not individuals that win election, thereby reinstating Amaechi as Governor of Rivers State, since he won the party’s primaries, there have been contending views on whether these governors, having left the PDP can remain in office. Lawyers of the view that the case does not apply in the present situation.
Amaechi won the primaries and was subsituted with Omehia, they said. The five governors were not substitute with any other candidates. They won their primaries and stood for elections themselves.
To the lawyers, the governors only exercised their constitutional rights as enshrined in Section 40, and did not abridge the law, since there is no clear cut provision on defection for executives, unlike legislators.
While calling on the APC to prove its claim and avoid bringing the judiciary to disrepute, the lawyers advised the PDP not to do anything that will overheat the polity.
Constitutional lawyer, Ike Ofuokwu said the APC should stop alleging anything and everything through Lai Mohammed, adding: ‘‘They should go ahead and prove their claim and should not drag the judiciary into this infamy.’’
He stated that any attempt to declare vacant the seats of the five governors would only lead to political anarchy and unnecessarily heating up the polity.
He said: ‘‘It will be tantamount to the PDP committing political suicide. All sides should rather quietly lick their wounds and wait till 2015 to prove their popularity.
‘‘Constitutionally, their defection is not illegal in any way. Their right to association is fundamental, inalienable and guaranteed. It is true that a party must sponsor their election but they are not constitutionally bound to remain with the party. Once they are sworn in they become Governors of their respective states and not of the party. We must bear in mind that even people who are not party members voted for them.”
Ofuokwu added that the decision of the Supreme Court in Amaechi vs Omehia does not apply in this case because there is no contention as to the candidates sponsored by the party. ‘‘Here, the candidature of the governors is not in dispute. It must be reiterated here, that defection to another party is not a constitutional disqualifying factor for a governor.
‘‘The PDP itself has over the years set this precedent by having in their fold governors who were first elected on the platform of other parties and later defecting to the PDP. If the PDP claims crisis in those parties, then we all know that a greater crisis exist in the PDP as we see with the case of the new PDP. The PDP therefore has no legal basis whatsoever. At best it only has a moral burden which even equity will not welcome.’’
Abuja based lawyer, Dr. Steven Chukwuka said: “I do not think the PDP will have any legal standing to seek the declaration of the seats of the governors that chose to leave it ranks vacant.
‘‘If the provisions of sections 68(1)(g) and 109(1)(g) are to be applied to this case, one would say the defecting governors are justified, because the PDP is currently in crisis and it is factionalised.
“People should note that the Supreme Court’s decision in Amaechi/Omehia case is no longer the law. The court has even taken a different position in some latter decisions. The law now is that you cannot challenge the outcome of an election in which you did not participate. The earlier position that it is the party that contests and win election is no longer valid.
“But, on a moral ground, I think the governors should not have abandoned the vehicle with which they rode to office. But be that as it may, you cannot blame a man for abandoning a leaking umbrella while it is raining.”
To Lagos based lawyer, Ikechukwu Ikeji, the APC ‘‘are so serendipitous in always unveiling sundry evil plans by PDP but are less expository in revealing their own failures’’.
He averred that there is nothing illegal in the defection of the governors, insisting there is no constitutional or legal provision precluding elected governors from changing political party.
He said: ‘‘But our actions ought not be solely governed by whether they are legally right or wrong. Some actions may be legally right but, upon proper scrutiny, they are morally wrong. This is where our sense of right and wrong as human beings come into play.
‘‘My view is that the Governors came into power through the vehicle of PDP and are now jumping ship at their convenience with the intention of destroying the same vehicle that brought them into power. It is like biting the finger that fed you. Both PDP and APC are the same fingers of a leprous hand. None is better than the other, no clearly identifiable political ideology. It is therefore morally and ideologically wrong for the Governors to defect from PDP to APC.’’
Like others, Ikeji said the case of Amaechi vs INEC was too distant from the present scenario because ‘‘at all material times, the duly nominated candidate of PDP for the Rivers gubernatorial election was Rotimi Amaechi and not Celestine Omehia.
‘‘This does not extend to deprive Amaechi the right to change parties. Although this raises a question as to whether PDP actually sponsored Amaechi at the elections as presently provided for by Section 177(c) of the 1999 Constitution of Nigeria as amended, the case does not have direct application to the present case of the defecting Governors.
‘‘Like I said earlier, the PDP does not have any legal basis to declare the seats of the defecting governors vacant. It is only legislators that have their right to defect curtailed by the provision of Section 68 (1) (g) of the 1999 Constitution as amended.
In his view, David Iwilade said the PDP will be a clown if it contemplates declaring vacant the governors’ seats for expressing their freedom of association.
‘‘Whoever contemplates a unilateral and arbitrary declaration of empty Governorship seats simply because rights of association were exercised by the Governors would merely be a clown.
‘‘The only process by which a Governor’s seat can be declared vacant is either by death, permanent incapacitation or impeachment, in which case, the Deputy Governor takes over. The decision in Ameachi v. INEC did not deal with defection. It dealt with valid nomination of candidates and wrongful substitution by a political party.
‘‘Whoever contemplates arbitrary declaration of empty seats will be toying with anarchy. And in any case, the Courts are open to anybody that wants to introduce such jurisprudence and we trust that at least, the courts will listen to every rational argument before it will take a stand,’’ he stated.
Legal expert, Chris Uche (SAN) said the issue of defection by governors or a member of the executive arm of government has been adjudicated upon by the Supreme Court. He averred that the Supreme Court settled this question in the case of Atiku Abubakar versus the Attorney General of the Federation in 2007 when President Obasanjo wanted to force Atiku out of office following his (Atiku’s) defection to the Action Congress (AC).
‘‘The Supreme Court held that there was nothing in the constitution or judicial statutes to make Atiku lose his seat as a vice president, hence as far as governors are concerned, there is no constitutional or legal restraint on free political mobility. Section 40 of the constitution of the Federal Republic of Nigeria, 1999 has granted to everyone, including governors, the right to belong to any political party of their choice and this right includes the right to leave or change political parties.
‘‘Unlike the case of legislators, both state and national, where the constitution sought to place some conditions for such change, in respect of governors and deputy governors, president and vice president, the constitution placed no restraint whatsoever.”
Arguing further, he explained that the Supreme Court’s decision in Rotimi Amaechi’s case has nothing to do with the defection of a governor from his party to another party as the Supreme Court dealt with the question of sponsorship of a governor by his political party and held that since by virtue of section 221 and 222 of the constitution, independent candidacy is not allowed in Nigeria, when an election is won, it is the political party that has won the election.
He said the case of Amaechi cannot be used to interpret the constitutional implications of the change of an elected governor from one political party to another
But, in line with the argument on moral, Uche said there are political and moral implications of such carpet-crossing, suggesting an explicit legislation on the matter should Nigerians want cross-carpeting of executives abolished.
“I believe that if it is our collective desire in this nation that a person elected on the platform of a particular political party must remain with the party until the expiration of his term of office, we must get our constitution to be amended to say so. It is not a matter of electoral reform through an amendment of the Electoral Act, because an Act cannot override the provisions of the constitution,” he said.
Chairman, Midwest Lawyers’ Forum, Ferdinand Orbih (SAN) said while the governors were free to defect to any party of their choice individually, same cannot apply to the National or State Houses of Assembly members, insisting there is no such party as new PDP.
He said the legislators cannot be covered by the proviso to section 68(1)(g) in the case of members of the National Assembly or the similar proviso in section 109(1)(g) in the case of members of a House of Assembly.
‘‘While the defecting Governors do not have any constitutional impediment on their way to becoming members of the APC despite being elected on the platform of the PDP, the same cannot be said of members of the National Assembly or State Houses of Assembly, who were elected on the platform of the PDP but may want to defect to the APC.
‘‘We are of the firm opinion that any member of the National Assembly or State House of Assembly as the case may be, in the fold of the so-called new PDP, who may want to defect to the APC would automatically lose his seat. The fact that there have been defections in the past or cross-carpeting of some members of the National Assembly from the political party under which they were elected to other parties does not make it legally right.
‘‘The reason defection from one party to another continues to take place is because the political parties themselves have not been serious in getting the courts to enforce the provisions of sections 68(1)(g) and 109(1)(g) of the Constitution. This time, the stakes are higher,’’ he said.
Lagos lawyer and activist Mr Theophilus Akanwa said: “I consider the defection of the five PDP governors to the APC not to be illegal. Recall that there is serious crisis in the PDP clearly evident from the series of meetings held between Mr President Dr Jonathan, other PDP members and the defected governors. This crisis was not however resolved hence the defection.
“In the eyes of the law, vis a vis the 1999 Constitution and the Electoral Act, freedom of association and defection when there is crisis in a party is respectively allowed. The case of Amaechi v. Omehia cannot apply in the circumstances to avail PDP the opportunity to declare these governors’ seats vacant. The crux in the said case was a pre-election matter which was on who was the legitimate candidate of the PDP in the Rivers State gubernatorial elections.
“The case had nothing to do with defection from one party to another. PDP cannot therefore declare these governors’ seats vacant in view of the said case. PDP should ask itself has there not been other party members who defected to PDP and they received them? PDP should concentrate on competing with viable parties like the APC in delivering good governance to Nigerians who have suffered lack of good governance in its administration.”

  THE NATION