Okutepa Faults Ozekhome’s View on what Constitute Division in a Political Party

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J.S Okutepa SAN

Senior Advocate of Nigeria and social analyst Mr. J.S Okutepa SAN has said the views expressed by Chief Ozekhome SAN as to what constitute division in a political party does not represent the position of the law as expressed by the Supreme Court.

Chief Ozekhome had earlier today stated that there is no legal basis for Saraki to resign as the President of the Senate. He buttressed his point siting the provisions of section 68(1) of the 1999 Constitution which allows the law makers to defect to another party when there is a division in the party. Okutepa faulted the above views noting that the Supreme Court has given a clearer interpretation of the proviso to the provision of Section 68|(1) of the Constitution.

His views:

The views expressed by Chief Ozekhome SAN with respect as to what constitute division in a political party does not represent the position of the law as expressed by the Supreme Court. I have had cause to write on this about three days ago. I said it is no longer news that some law makers both at the national and state levels in Nigeria are moving from the political parties on whose platforms they were elected to the other parties. Can they do so? I think not in the current circumstances. Under the Nigerian constitutional jurisprudence, lawmakers are allowed to cross carpet or decamp to another political party or parties from the parties under which they were elected under certain conditions set out by the constitution itself. See section 68(1)(g) of the 1999 constitution as amended.

In fact the Supreme Court had occasion to consider this in the case of  HON. IFEDAYO SUNDAY ABEGUNDE VS. THE ONDO STATE HOUSE OF ASSEMBLY & ORS  (2015) LPELR-24588(SC).

The fact of the case is that the appellant was a member of the House of Representatives representing Akure North/South Federal Constituency having been sponsored by and elected on the platform of the Labour Party. He subsequently defected from the Labour Party to the now defunct Action Congress of Nigeria (ACN) before the expiration of the period for which the House was elected. By an originating summons filed on 26/1/2012 before the Federal High Court, Akure, Ondo State he sought various declaratory and injunctive reliefs in an attempt to validate his defection and avoid the consequences of Section 68 (1)(g) of the 1999 Constitution. The 1st, 2nd and 3rd respondents filed a counterclaim seeking in the main, a declaration that the appellant had automatically vacated his seat in the House of Representatives as a result of his defection and praying for an order directing INEC to conduct a bye-election to fill the vacant seat. It was the appellant’s contention that his defection was as a result of a division within the Labour party. That in the circumstances, his defection was covered by the proviso to Section 68(1)(g) and he was entitled to retain his seat.

In a considered judgment delivered on 30/5/2012 the High Court disagreed with him and dismissed the suit but granted the counter claim. His appeal to the Court of Appeal was dismissed on 15/9/2014 hence the further appeal to the Supreme Court. The 5th and 7th respondents also filed a cross-appeal, urging the Court to allow the appeal and set aside the judgments of the two lower Courts. All the respondents except the 5th and 7th respondents urged the Court to dismiss the appeal. In the judgement of the Supreme Court the court had to decide the point under what circumstances law makers who defected as being done presently can keep their seats in the house.

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This is what the Supreme Court said.

“I am unable to agree with learned counsel to the appellant that  on  the  facts and the  law  as concurrently applied by the two courts below their decisions can be interfered with. One is left in no doubt that the determination of the dispute the trial court is approached to resolve turns decisively on the meaning of the word “division” as used by the framers of the proviso to Section 68(1)(g) of the  1999  Constitution  as  amended.  Whereas learned appellant’s counsel contends that “any division,” in the political party would entitle a person who contested and won an election on the platform of that party to defect to another party and in spite of the defection to retain his seat, learned counsel to the respondents’, except the 5th & 7th, on the other hand, argue that the “division” in the State structure of the Labour Party only does not entitle the appellant to abandon the Labour Party for the A.C.N. Not being the kind of “division” that affects the national structures and therefore the corporate existence of the party, learned counsel insist, appellant’s defection does not come within the proviso to Section 68(1) (g) to entitle him to  retain  his  seat  in  the  House  of Representatives in spite of his defection to the A.C.N. from the Labour Party on which platform he contested and won the seat. This position of the respondents is unassailable. In Fedeco v. Goni (supra) this Court, while interpreting  Section  64(1) (g)  of  the  1979  Constitution which is pari materia, that is on all fours,  with  Section  68(1) (g)  of  the  1999 Constitution as amended, held at pages 21-22 of  the report thus:-

“Under Section 64(1) (g) of the Constitution

where  a  person  whose  election  to  the  legislative house was sponsored by a political party, becomes a member of another political  party before the expiration of the period for which that house was elected, he would have to lose his seat in that house. But under the proviso to the said Section 64(1)(g), if his membership  of  the  new  political  party occurred because  –

(1) THERE WAS A DIVISION in the political party which sponsored him and as a result he joined the new political party…. he does not lose his seat.” (Underlining mine for emphasis).

The court at pages 22-23 of the report further held:-

“A split or division could arise without any fault of the members of a political party resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent   practice   of   cross-carpeting politicians of yester years who, for financial consideration or otherwise, crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.” (Underlining mine for emphasis).

In AG Federation v. Abubakar (supra) which the Lower  Court  further  imbibed,  this  Court  per Aderemi JSC at page 178 of the report held thus:-

“It  is  manifest  from  the  above  quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by  declaring his seat vacant. No similar provision was made for the Vice-President or even for the President.” 

The principles enunciated by this Court in the two cases, Fedeco v. Goni supra and Court on the issue. The interpretation of Section  68(1) (a) and (g) of the 1999 Constitution in relation to Sections 221 and 222 of the same constitution to arrive at the same conclusion does not derogate from the position. After all, it is a trite principle of interpretation of the Constitution that its entire provisions be read together as a whole in ensuring the enthronement of the real intention of its framers. Isolated consideration of a particular section is disallowed. The Lower Court must be commended for its consideration of several clauses of the same Constitution and coming out with the harmonious conclusion it has and by so doing enthroning the real intention of the framers of the Constitution. See Odubeko v. Fowler (1993) 9 SCNJ 185, Unilife Dev Co. Ltd v. K. Adeshigbin & ors (2007) 3 SCM 151 and Alegbe v. Oloyo (1983) NSCC 315. Ag Federation v. Abubakar supra, is to the effect that only such  factionalisation,  fragmentation,  splintering  or “division” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1) (g), justify a person’s  defection  to  another  party  and  the retention of his seat for the unexpired term in the house inspite of the defection. Otherwise, as rightly held by the courts below, the defector automatically loses his seat. In the instant case, the two courts are right that the Labour Party that has continued to function as a political party by meeting the conditions associations by virtue of Section 221 and 222 of the Constitutions must necessarily meet, cannot be said to have been so factionalised, fragmented, split or divided to justify the defection of the appellant to another party and retention of his seat inspite of the defection. This remains the position of this Court on the issue. The interpretation of Section 68(1) (a) and (g) of the 1999 Constitution in relation to Sections 221 and 222 of the same constitution to arrive at the same conclusion does not derogate from the position. After all, it is a trite principle of interpretation of the Constitution that its entire provisions be read together as a whole in ensuring the enthronement of the real intention of its framers. Isolated consideration of a particular section is disallowed. The Lower Court must be commended for its consideration of several clauses of the same Constitution and coming out with the harmonious conclusion it has and by so doing enthroning the real intention of the framers of the Constitution. See Odubeko v. Fowler (1993) 9 SCNJ 185, Unilife Dev Co. Ltd v. K. Adeshigbin & ors (2007) 3 SCM 151 and Alegbe v. Oloyo (1983) NSCC 315.”. From the decisions of the Supreme Court quoted Supra, it becomes clear  that only such factionalisation,  fragmentation,  splintering  or “division” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1) (g), justify a person’s  defection  to  another  party  and  the retention of his seat for the unexpired term in the house in spite of the defection. It is therefore a question of fact that there are no divisions in any political parties in Nigeria to warrant the mass defections being witnessed in our legislative houses both at the Centre and state levels. If our political leaders want constitutional democracy to be practiced and grown without the kind of political prostitution in the form of defections going on they must approach our courts to declare vacant the seats of all those who left their parties for another party or parties outside the clear provisions of section 68(1)(g) of the 1999 constitution as amended. We cannot keep paying those who by their conduct and operations of our constitution have ceased to be law makers. It is time the office of the Hon Attorney General of the Federation approach the court to have all their seats declared vacant and another elections done to fill their offices which they have lost by operations of law arising out of their unconstitutional and gross misconduct.

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