By Rotimi Ogunleye
Defection in Nigeria’s political environment is as common as the human activity of changing clothes.
While in the advanced democracies party affiliations are based on ideological persuasion and beliefs rooted in altruism and commitment to the national interests, the reverse is the case in this clime.
In Nigeria, people are propelled from one party to another by selfish reasons. Hence, within a year, or couple of years, the nation produces more turncoats than partisans.
By section 40 of the Constitution of the Federal Republic of Nigeria 1999 and its precursor, section 37 of the Constitution of thevFederal Republic of Nigeria 1979, every person is entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.
The sections which provide for one of the fundamental rights enshrined in Chapter IV of both the1979 and1999 Constitutions make it a right for Nigerians to decide on who to associate with or dissociate from as appropriate.
The activity called defection is easily justifiable by relying on the sections.
The verb “defect” from defection has other synonyms like “decamp” and“ crosscarpet” which refer to the same behavioural pattern.
Longman Dictionary of Contemporary English (6th Edition) defines “decamp” as to leave a place quickly and“ defect” to mean leave your own country or group in order to join an opposing one.
In case law, “cross-carpet” is similarly used. Though the 1979 and 1999 Constitutions did not use any of the aforementioned words in their provisions, they provide in unambiguous words for the what happens to a legislator that moves from one party to another.
Section 68(1)(g) of the1999 Constitution providest that: A member of the Senate or the House of Representatives shall vacate his seat in the House of which he is a member if – 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 same provision in section109(1)(g) of the1999 Constitution was given judicial backing in Dapianlong v. Dariye (2007) 8N.W.L.R. part 1036 page 239 at page 435 paragraphs G and H, ratio 26, where the Supreme Court held that by section109(1)(g) of the Constitution, a member of the State House of Assembly who leaves the political party on whose platform he or she was elected, to join another is deemed to have vacated his or her seat.
The same position was taken by the Supreme Court in Abegunde v. Ondo State House of Assembly (2015) 8N.W.L.R. part1461, page 314 at page 347 paragraph E to page 348 paragraph F, ratio1, where the apex cour tdepicts. the scenario of moving from one party to another as fraudulent and malevolent practice of cross-carpeting, politicians of yesteryears who, for financial consideration or otherwise, crossed from one political party to another without qualms and without conscience. It added that such a practice had to be discouraged by the framers of the Constitution if political public morality of our country is to be preserved.
The loophole that is often exploited by political actors is the proviso in sections 68(1)(g)and109(1)(g) on division in a party, even when the affected legislators know that the seeming division in their parties is localised to the State, Local Government or ward.
The Supreme Court relying on its earlier decisions in Federal Electoral Commission (FEDECO) v. Goni (1983) 2SCN LR 227 and Attorney General of the Federation v. Abubakar (2007) 10 N.W.L.R. part 1041 page 1 held in Abegunde v. Ondo State House of Assembly supra at page 348 paragraph F, page 349 paragraph B, page 357 paragraphs E and F and page 372 paragraphs D and E, ratio 4, that the division, factionalisation, fragmentation or splintering, which would make the proviso to avail a decamped legislator, must affect the entire structure of the political party at the centre, that is to say, the national leadership. In the instant case, Hon. Ifedayo Sunday Abegunde who was elected into the Akure North/South Federal Constituency of the Federal House of Representatives under the Labour Party, decamped ostensibly due to the division in the Ondo State branch of the party and the apex court held that he did not show that the division in Ondo State affected the entire structure of the Labour Party at the centre or nationally and that a person who defects, must resign and fight for by-election in his new party, otherwise, he must remain in the party that sponsored him for the term for which he was elected. Abegunde v. Ondo State House of Assembly supra at page 357 paragraph D to G, page 379 paragraphs G and H and page 376 paragraphs A and B ratios 1 and 2.
The apex court also held that by virtue of party registration under section 80 of the Electoral Act 2010 (now section 77 of the Electoral Act 2023), a political party is a single corporate entity from which there are several branches or chapters such as States, Local Governments and wards chapters.
The questions: when a defected legislator fails to vacate his seat as required by the law, how would sections 68 (1)(g) and 109 (1)(g) be invoked to declare the seat vacant?
Section 68 (2) provides that the President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of section 68(1) while section 109(2) saddles the Speaker of the House of Assembly with the same obligation at the State Level.
The Rivers State scenario posed a challenge to these provisions. Pray, would the framers of the 1999 Constitution have envisaged that in a State predominantly dominated by a political party controlling both the executive and the legislature, a situation would arise where 27 out of the 32 members of the House of Assembly, including the Speaker, would defect to another, party leaving the State Governor in a limbo?
It therefore raises further questions on who else has the locus standi to invoke the provisions in the face of the cul-de-sac. created in the State.
It is submitted that the political party which sponsored the legislator, to the legislative seat into which he was elected has the locus standi to initiate the proceedings in the court to enforce the afore-said sections. It is also submitted that where the political party’s organ at the national level lacks the consensus or political will to invoke the provisions, then, it could be a ground for a defecting legislator to claim that the party is divided.
However, to ensure that the intention of the framers of the Constitution is achieved, it is canvassed here that a registered member of the affected political party, who votes in the constituency where the legislator was sponsored by the party and a registered voter of whichever party or affiliation in the constituency should be able to move the court to invoke the constitutional provisions to declare the seat vacant.
This will entail liberal judicial intervention which would prevent a situation where legislators pander to puppeteers precipitating a cul-de-sac and the consequent declaration of a State of Emergency, coupled with the unconstitutional dissolution of democratic institutions.
The court and the citizens must therefore play their roles to ensure the intendment of the Constitution is achieved.
Defectors should not be allowed to benefit from their wrongful act, see Bimba Agro Livestock Company Limited v. Landmark University (2020)15N.W.L.R.part1748 page 465 at page 491 paragraphs D and E ratio 3.
The Supreme Court held in All Progressives Congress (APC) v.Karfi (2018) 6N.W.L.R.part1616 page 479 at page 513 paragraph H to page 514 paragraph Gratio 17 that section109 of the Constitution or any other section for that matter does not state that a court of law in deserving cases cannot order a member to vacate his seat.
Cases of defection where the affected legislator refuses to vacate his seat should be deemed to be sui generis and given accelerated hearing.
Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator
