Senator Akpabio’s Case on Defection Opens a New Frontier for Constitutional Amendment – Monday Ubani

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The Federal High Court in Abuja presided over by Hon Justice Okon Abang held that a former Minority Leader, Senator Godswill Akpabio’s movement from the People’s Democratic Party to the All Progressives Congress last year was not a case of defection but a movement occasioned by expulsion from the original Party.

The Judge held on to this view based on a letter dated August 2. 2018 written by the PDP expelling the Distinguished Senator from the Party. The judge was of the strong view that having been expelled by the PDP, Senator Akpabio was at liberty to join another political party of his choice, and to declare that he has defected to another political party has no backing of the Constitution. He further held that to declare Senator Akpabio’s seat vacant as requested by the Plaintiff, Legal Defence and Assistance Project would be to punish him for exercising his right to Freedom of Association under Section 40 of the Constitution of 1999 as Amended.

This pronouncement of Justice Okon Abang was made in a suit filed by LEDAP seeking an order declaring the seats of 54 members of the National Assembly, including Senator Akpabio, accused of unlawful defection from the parties which sponsored their elections to other ones. While the learned judge dismissed the case of the 53 lawmakers without considering the merit of the case on the grounds that the Plaintiff, LEDAP lacked locus standi, he dismissed that of Senator Akpabio on the ground that the Senator did not defect as defined under Section 68(1)(g) of the 1999 constitution as amended but that he moved into a new Party out of frustration.

The Plaintiff had anchored its suit on the said Section 68(1)(g) of the constitution which provides that the seat of a legislator who defects from his or her Party without any division in the party before the end of the tenure for which the Party sponsors the lawmaker’s election shall be declared VACANT.

In his considered judgement (which by implication) has expanded the provision of the constitution, Justice Abang held that the provision of Section 68(1)(g) of the constitution was not applicable to Senator Akpabio who “neither defected nor decamped” but only “moved” from the PDP following his expulsion.

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MAKING A CASE FOR AN AMENDMENT.
It is an established fact that no constitution or law prescribes for every situation in the polity, since laws by nature are made by human beings who remain fallible. However, whenever new issues crop up in the polity when applying the law, the best thing to do in such situation is to quickly address it by amending the constitution or law to cure such noticeable defect. Recall the ugly situation which occurred sometime ago in Kogi State where late Audu Abubakar contested as a gubernatorial candidate of APC and died when the election which he contested was declared inconclusive by INEC. The country was thrown into legal confusion, for the constitution did not envisage a situation that will arise where a candidate will suddenly drop dead after an election which have had some results announced but the entire election being declared inconclusive. The lawmakers quickly took up the gauntlet and had the Section of the Constitution amended to correct such an ugly situation which may arise sometimes in the future. That was a commendable step.

And so for Section 68(1)(g), it is clear that what that Section envisages is a situation where a lawmaker will willingly walk out of the Party that gave him or her an opportunity to be a representative in the National Assembly and for which the sanction will be to have his or her SEAT DECLARED VACANT by the court. Anyone who walks out of the mother Party when there is crisis, division or merger is not to be sanctioned for such movement. The constitution never envisages a situation where the mother Party will FOIST UPON THE ELECTED MEMBER A FAIT ACCOMPLI SITUATION THAT WILL RENDER THAT MEMBER POLITICALLY IRRELEVANT IF HE OR SHE TAKES NO PRACTICAL STEP TO STAY AFLOAT.

The story of Senator Akpabio which is evidenced by documents which he tendered before the Court was that his mother Political Party expelled him and that, that expulsion took place few days before the closure of the timeline within which candidates were supposed to pick forms for the contest of primary election in their various political parties. According to him he was left in the dark, an orphan so to speak and so to remain afloat and politically relevant he had to do a quick move to another Political Party to avoid being thrown into political oblivion.

These were the facts that the learned Justice considered and came to the inescapable conclusion that the distinguished Senator was indeed about to be frustrated politically and since the freedom of association is guaranteed by the constitution of the Federal Republic of Nigeria, the Senator had a choice to move to another political party to actualize his ambition of returning to the Red Chambers. It is worthy of note that his election to come back to the Red Chambers is presently a subject of serious litigation before the Election Tribunal in Uyo, Akwa Ibom State.

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By this judgement, any lawmaker who moves out of his or her political Party by virtue of expulsion, suspension and such like which its intent and purpose by the mother Party is to render such lawmaker politically irrelevant has a constitutionally guaranteed right of movement and association to join another political Party to stay afloat politically. That is the import of the decision reached today the 17th of May, 2019 by Learned Justice Okon Abang of Federal High Court, Abuja.

SUGGESTED AMENDMENT.
Apart from the exception already recognized by the constitution under Section 68 of the 1999 Constitution as Amended which exempts any lawmaker’s seat from being declared vacant if there is evidence of division in the mother Party, this new ground as recognized by the judgment of Justice Okon Abang should also be incorporated as one of the exceptions to declaring the lawmaker’s seat vacant.

The second issue that should attract the attention of those who will effect the amendment is to examine the wisdom of the perennial complaints or concerns of some Nigerians who have expressed the strong view that whosoever have “defected” or “moved” to another political party whether on the grounds of division or as in Senator Akpabio’s case where he was expelled is to forfeit the rights and privileges of being a Representative in the House since he or she is no longer a member of the mother political Party through whom he or she came to the House. Sound argument you think? Others will counter it and state that it will be greatly unjust to advice a representative who is there for the sake of his constituency to remain in a mother political Party that is constantly embroiled in crisis and division with no articulated focus to aid the member bring home dividends of democracy to his or her constituents. It will be advisable they say that the lawmaker should seek refuge elsewhere for the sake of his or her constituents in order to render adequate representation to them. Also in the case of Senator Akpabio where the alleged mother Party’s intent is to frustrate the particular candidate who has been delivering dividends of democracy to his people, it will be foolish they say to advise such a candidate to allow himself or herself to be drowned politically instead of seeking ways to remain politically afloat and relevant to his or her people.

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As we look forward to have this Section tinkered with by those who are saddled with the responsibility of amending our constitution under Section 8 of the 1999 Constitution as Amended, we hope that they will take critical look to the issues raised above and address them squarely and fairly and save Nigerians from this perennial arguments and counter arguments whenever our lawmakers defect from one political party to another. The idea of entrenching the issue of “political ideology” by enactment will not be a bad idea after all. The lack of it is the cause of this constant defections, decamping and its like in the polity by the Lawmakers and other politicians.

Monday Onyekachi Ubani (MOU) ESQ,
is the Immediate 2nd VP of NBA.

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