By Ayodeji Adeleye
“The party is nothing more than an umbrella under which a candidate can contest an election as the purpose of political party is to help shape the direction of the governing process.’’
On 8th March, 2022, the Federal High Court sitting in Abuja in suits marked FHC/ABJ/CS/920/21 and FHC/ABJ/CS/1041/21, filed by the People’s Democratic Party(PDP), ordered that Governor and Deputy Governor of Ebonyi State, Mr. David Umahi and Dr. Eric Kelechi Igwe respectively, vacate the seats, following their defection from the PDP to the ruling All Progressive Congress (APC). In what seems like the opening of a new vista in the Nigerian political landscape, Justice Inyang Ekwo held that the total number of 393,042 votes, the Governor secured in the 2019 gubernatorial elections in Ebonyi State belonged to the PDP and the said votes could not be validly transferred to the APC. Justice Ekwo held the defection was unconstitutional and that both men should not only immediately leave office but stop parading themselves as Governor and Deputy Governor of the State. The Judge further held that 16 lawmakers of the Ebonyi State House of Assembly who defected with Umahi and his Deputy to the APC to accordingly vacate their seats.
The decision of the Federal High Court “sacking” the Governor and his Deputy has however generated mixed reactions and talking points from diverse commentators, on different grounds. Whilst some have commended the decision and validated same, another school of thought believes the court reached a wrong decision following the letters and spirit of the Constitution and past judgments of the court. The essayist belongs to the latter school and reasonably believes the judgment of the Federal High Court cannot survive the litmus test of appeal, in the light of judicial precedents to the contrary.
On the removal of a Governor, the provisions of Section 188 1999 CFRN clearly stipulates the circumstances that could warrant a sitting governor to be removed from office and nothing in that section or nowhere in the Constitution provides that the Governor or Deputy can lose their seats upon cross-carpetting from the political party on whose umbrella they were elected into the given offices to another political party. Sections 68(1)(g) and 109 (1)(g) of the Constitution are clear and unambiguous, as they state that defection only affects those in the legislature. This manifestly does not stretch to those in the executive arm of government. It is trite law that in interpreting a statute, the express mention of a thing is the exclusion of another.
In the cause celebre of A.G Federation v Atiku Abubakar (2007) 4SC, PT.11, p.62, the court specifically stated as follows: “Although defection or cross-carpeting to another party or dumping the original party that sponsored one for election to a particular office which is created by the Constitution; or in the same vein, condemning or criticizing that party or its members who by virtue of the same election hold some offices created by the Constitution, is painful, unconscionable and immoral; it is however not illegal.”
Also in that case, Justice Walter Onnoghen enthused that: “There is nowhere in the 1999 Constitution where it is stated that the President or Vice President shall be removed from office if he/she joins another political party’. It is trite that under the 1999 constitution, provisions relating to removal of the President/Vice President are replicated with respect to Governors/Deputy Governors.”
As prior noted, cross-carpeting only constitutionally operates to disqualify those in the legislature from office. See the cases of FEDECO v GONI (1983) LPELR-1266 (SC); and ABEGUNDE V O.S.H.A (2015) LPELR-24588 (SC). Just recently, Bello Matawalle the Governor of Zamfara State was sued on the basis of his defection to another party. The Governor defected from PDP to APC and some PDP members took him to court, seeking his sack. The same Federal High Court held that the Constitution does not prohibit a Governor from defecting to another party, neither does it disqualify him from occupying the seat. This leaves one with the question as to why the Federal High Court is now taking a volte-face on the same issue in Umahi’s case, having directed otherwise much earlier.
Another ratio of the Court in reaching its decision in this case is that section 177 of the Constitution, provides that a person shall be qualified for election to the office of the governor if he is a member of any political party and is sponsored by that political party. This section shows that political party is a key player in our democracy as there cannot be individual contest in an election . The implication being that the Constitution does not envisage independent candidacy for the office of governor in Nigeria. In both Faleke v. INEC and Amaechi v. INEC, the court held that votes belong to the party and an election is won by the party and not the individual. However, in a more recent case of OZOMGBACHI v. AMADI & ORS , the Supreme Court held as follows:
“…I believe the Supreme Court has laid to rest the contention that it is the political party which contests and wins an election. In C.P.C. v OMBUGADU the court was categorical that individuals as candidates win election and not the political parties.”
This is another point that seemingly takes the wind out of the sail of Justice Ekwo’s decision. An insight into the decision supposes that the court believes the political parties own the votes cast in an election as opposed to the candidates sponsored by the said parties.
A cursory look into some constitutional and statutory provisions may be of immense help on this point. Section 177(d) of the Constitution suggests , a political party is nothing more than an umbrella under which a candidate can contest an election as the purpose of political party is to help shape the direction of the governing process.
Section29(1) of the Electoral Act 2022 provides that: ”Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the CANDIDATES the party proposes to SPONSOR at the elections, who must have emerged from valid primaries conducted by the political party.”
Section 66 of the Electoral Act 2022 provides that: “In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subjected to the provisions of sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.’’ The implication of this is that the results shall be ascertained by counting the votes cast for each CANDIDATE, despite the fact that the party logo is on the ballot paper. The Electoral Act still gives cognizance to the fact that those votes belongs to the candidates and not the party. This was rightly upheld in NWANKWO & ANOR v. INEC & ORS (2019) LPELR-48862(CA)
Section 72(1) Of the Electoral Act 2022 further provides that :“A sealed certificate of return at an election in a prescribed form shall be issued within 14 days to every candidate who has been returned by the returning officer in an election under this Act.” This section of the Electoral act 2022 still recognizes the fact that votes belong to the candidates and not the party because if reverse should be the case this certificate of return should be presented to the Political party who won the election and not the candidates and the certificate of return should be with the Party. This was judicial Stamped in HARUNA v. APC & ORS (2019) LPELR-47777(CA)
Another major talking point is the consideration of section 308 of the Constitution, which confers immunity on the Governor and his Deputy as regards civil proceedings commenced against them in their individual capacities whilst in office. A Governor or his deputy cannot be sued in their personal capacities, not being a pre-election, election or post-election matter. See the case of EJURA V. IDRIS & ORS (2006) LPELR -5827 (CA). The facts in the Umahi case however, infracts on that constitutional provision and does not fall within the given exceptions.
On a conclusive note, a matter of a contentious nature as that was commenced by originating summons. This goes to jurisdiction, as one of the factors to consider in appraising whether or not a court has jurisdiction has laid down in the locus classicus of Madukolu v. Nkemdili, a matter must be instituted by the proper mode of commencement. At the risk of absolutism, nothing empowers a High Court Judge to remove a sitting governor or the deputy by originating summons. It is sincerely hoped the judicial waters of appeal is tested on this decision. This would not only resolve the constitutional crisis qua uncertainty the case has foisted on us, it will do a great advantage to our electoral jurisprudence in Nigeria.
Ayodeji Adeleye is a 500 level Law Student of the Ekiti State University. He can be reached at: email@example.com