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.
NationalMiorror
Tambuwal said this at the 11th Daily Trust dialogue in Abuja on January 15.
