By Alex Enumah
The Abuja Division of the Federal High Court last Tuesday ordered the Governor of Ebonyi State, Chief David Umahi and his Deputy, Kelechi Igwe to immediately vacate office on account of their defection from the People’s Democratic Party (PDP), whose platform they emerged as Governor and Deputy Governor respectively in 2019.
Justice Inyang Ekwo who made the order held that the governor and his deputy’s continued stay in office after defecting to the All Progressives Congress (APC) in 2020 was illegal, null and unconstitutional.
Justice Ekwo hinged his decision on the grounds that since it is political parties that sponsor candidates in an election, it follows that the votes won by a candidate in an election as well as the victory belong to the political party on whose platform the candidate contested the election.
He also noted that such votes won by a candidate with a political party cannot be transferred to another.
“Election is won on the ballots and constitutionally, ballots are sacrosanct and are ascribed to the party to whom the electorate voted. There is no constitutional provision that makes the ballot transferrable from one political party to another.
“Where the electorate express their trust in an election by giving their votes to a political party, there is no political machination or manipulation that would allow a party to short-change the will of the electorate.
“Let me put it this way, a Governor or Deputy Governor is dressed in the robes of the political party by whose vote they occupy the office. If a Governor or Deputy Governor defects from the political party by whose vote he got into office by joining another political party, such a person must be seen to have jettisoned not just the political party, but the votes of the party as well, under our law,” Justice Ekwo said.
He held that flowing from the above, Umahi and his deputy cannot continue to occupy office after dumping the party on whose platform they came into office.
Justice Ekwo subsequently ordered Umahi and his deputy to vacate office immediately, having decamped from the party on whose platform they won election as governor and deputy.
In a similar suit filed by the PDP, the court also ordered the 16 Ebonyi Lawmakers to vacate their seats having dumped the PDP that brought them to office.
He subsequently ordered the plaintiff (PDP) to present the names of its candidates to INEC for the post of Governor and Deputy Governor as well as for the affected 16 lawmakers of the Ebonyi State House of Assembly.
In addition, Justice Ekwo ordered INEC to stop recognising Umahi and Igwe as Governor and Deputy Governor of Ebonyi State respectively.
He also made a similar order in respect of the affected 16 lawmakers.
Umahi and Igwe had contested and won the 2019 governorship election on the platform of the PDP but decided to dump the party for the APC in September 2020.
Their action had incurred the wrath of the PDP which dragged them to court to challenge their continued stay in office, having left the PDP that brought them to power.
However, the judgment seems to have aroused some measure of controversy and confusion because the Constitution has no provision on defection for Governors nor has it made it an offence for a Governor to defect from one party to another.
Sections 188 and 189 of the 1999 Constitution, provide that a Governor and his Deputy can only be removed from office through impeachment by two-thirds majority of the State House of Assembly over acts of “gross misconduct” established against them by a panel set up by the House to investigate such allegations.
Similarly, Section 308 of the 1999 Constitution provides for the immunity of governors while in office.
In addressing the above, Justice Ekwo said: “Though no similar provision is made in respect of a Governor or Deputy Governor, such a lacuna is not to be celebrated or even mischievously flaunted as failure of a remedy for situations of such nature.
“It is not an assurance that any person, who occupies an elected office, would defect from the political party that puts him on the seat to a party that did not win the election, and nothing would happen.
“It would be constitutionally wrong for a person, who was sponsored by one political party, to defect and become a member of another political party before the expiration of the period he was elected and then continue with the voters’ mandate given to his former party. This is the situation here.
“It needs also to be said that the continued occupation of the 3rd and 4th defendants as Governor and Deputy Governor of Ebonyi State is in breach of the provision of Section 179 (2) (a) and (b) of the 1999 Constitution (as amended) as there was no election held in the State by virtue of which they emerged duly elected as candidates of the 2nd defendant (APC) with majority of votes cast at the election and they had not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas of the state,” he said.
The defendants in arguing their case had cited two recent judgments of the trial court which held that there is no known law that orders the removal of a governor on account of his defection from one political party to another.
In the suit filed by some PDP chieftains in Zamfara seeking the removal of Governor Matawalle as Governor of Zamfara State, Justice Aminu Aliyu of the Federal High Court, Gusau dismissed the case of the plaintiffs for lacking in merit.
The court in dismissing the case of the plaintiffs ruled that both the constitution of the PDP and the 1999 Constitution do not, in any way, prohibit any person from joining any association or political party.
Aliyu also premised his decision on the facts that it is only an election tribunal or State House of Assembly that could remove a governor from office. The ruling was delivered on February 8, 2022.
Meanwhile, on March 1, 2022, Justice Henry Njoku, of a High Court of Ebonyi State in Abakaliki also dismissed a suit seeking to remove Umahi and his deputy on account of their defection to the APC.
The judge in dismissing the suit also slammed a N500,000 cost in favour of Umahi and his deputy.
The plaintiff, Senator Sunny Ogbuorji had demanded that the governor and his deputy vacate office for the second runner up, having defected from his former party, PDP.
Among the issue for determination was whether Umahi and his deputy, having defected to APC, could still continue to be governor and deputy, having regards to the provisions of the constitution and the Electoral Act as relied upon by the plaintiff and that having come second in the governorship election, ought to be sworn in.
Responding, the defendants in their argument canvassed that the plaintiff was relying on the pre-election/election qualification issues, arguing that there was no provision in the constitution that provided for defection as one of the grounds for the vacation or removal of a person as governor or as deputy governor.
In his judgment, Njoku, citing Section 188 (1) of the 1999 Constitution, noted that the defendant (Umahi) has not offended any provision of the Constitution or the Electoral Act in his defection to APC.
The Court further held that having regard to section 308 of the Constitution, it is even wrong to institute criminal or civil proceedings against the office of the Governor. The Court therefore dismissed the suit in its entirety.
However, reacting to this latest judgment outside the court, Ebonyi State Commissioner for Information and State Orientation, Mr Uchenna Orji described it as a travesty of justice and assured that they would appeal the decision.
In faulting the judgment, Orji stated that the judge relied on provisions of the Electoral Act dealing with pre-election and election matters.
“The Court of Appeal decision in Amaechi shows that today’s judgment was a clear case of an error in law and we must challenge it at the appellate court”, he said.
He further disclosed that a court of coordinate jurisdiction in Ebonyi State had made a pronouncement on this matter, saying that the Constitution has no provision on defection for Governors nor has it made it an offence for a Governor to defect from one party to another.
Ekwo however noted that the decision of the two courts of coordinate jurisdiction is not binding as the facts of the case are not the same.
He clarified that the crux of the matter was the defection of Umahi and Igwe from the PDP to the APC, adding that the averments of the 3rd and 4th defendants did not address the issue of defection rightly and frontally but rather resorted to general denial to affidavit evidence.
Justice Ekwo said that the depositions of the 3rd and 4th Defendants in their counter affidavit were “evasive and insufficient” to competently challenge the plaintiff’s originating process.
He went further to state that the “Immunity Clause” in section 308 of the Constitution is not absolute.
“Section 308 is a veritable constitutional shield” and not for political reasons.
According to the judge, the immunity clause was provided to protect a governor against distraction while in office and can be tried once out of office for any offence he might have committed while in office.
Ekwo stressed that the issue brought before the court is such that it cannot be deferred till the end of the governor’s tenure, adding that the issue of defection was not an act done as part of the official duties of the governor.
In addition, the judge held that Umahi and Igwe did not controvert the deposition that total votes scored in an election belong to a political party.
He said evidence abound that the 2nd defendant (APC) contested the Ebonyi State Governorship election held in March 2019, with its own candidates.
“It can be noted that the Constitution does not deal with the issue of defection lightly” the court stated.
“The 3rd and 4th Defendants cannot transfer the votes and victory of the plaintiff on March 9, 2019, to the APC.
“Office of the Governor and Deputy Governor of Ebonyi State belong to the PDP.
“The option for Umahi and Igwe is to vacate office and wait for the next election to contest under the platform of their “new party”, Ekwo held.
The court said the action of the APC, Umahi and his deputy was aimed at dismantling the 1999 Constitution.
Consequently, the court declared that under the democratic system operated in Nigeria, the plaintiff won the majority of votes during the election and is entitled to enjoy same till end of tenure of office for which the election was made.
Recall that the Supreme Court in the case of former Governor of Rivers State, Rotimi Amaechi had in 2007 held that the votes cast in an election belong to the party and not the candidate.
Amaechi had contested and won the ticket of the PDP for the 2007 governorship poll in Rivers State but his party had substituted his name with that of Celestine Omehia, who contested and won the 2007 governorship election in Rivers State.
However, the apex court while delivering judgment on the pre-election matter of unlawful substitution case, declared Amaechi who did not contest the poll as winner of the governorship poll and ordered the Independent National Electoral Commission (INEC) to withdraw the certificate of return earlier issued to Omehia as governor and issue a fresh one to Amaechi.
Also in 2007, the Supreme Court in a judgment in the suit between the Attorney General of the Federation and Atiku Abubakar, held that Atiku who was then the Vice President cannot be removed from office on account of his defection from the then ruling PDP to the Action Congress (AC).
Then President Olusegun Obasanjo had attempted to declare Atiku’s seat as VP vacant following his defection to the AC, but the courts held that the president’s action was illegal, null and unconstitutional.
In the lead judgment delivered by Justice Walter Onnoghen, the apex court held that there is no express provision of the vacation of office of the vice president upon defection from his sponsoring political party to a rival party.
According to the judgment, the vice president can only resign from office as per the provisions of section 306 of the Constitution.
Other provisions relating to cessation of office and removal from office, the apex court noted is by impeachment as stipulated by Sections 143 and 144 of the Constitution.
The apex court subsequently affirmed the judgment of the Court of Appeal, which held that, “the purported declaration by the President of the Federal Republic of Nigeria of the office of the plaintiff as the Vice President of the Federal Republic of Nigeria as vacant was unconstitutional and of no effect.
Recall also that the late Abubakar Audu and his running mate, James Faleke, were clearly in the lead in results announced in the 2015 governorship election in Kogi State, when Audu reportedly slumped and died.
Because the final results had not been announced and Audu declared winner of the election, his running mate could not benefit from the lead.
It was the position of the law that the party who owns the vote cast so far by the electorate in Kogi, was at liberty to nominate any person to enjoy the votes already won by the late Audu.
Accordingly, Yahaya Bello was nominated as the standard-bearer to conclude the election on behalf of the APC.
With the level of inconsistency and the seemingly contradictions by courts of coordinate jurisdiction in the last one month, the nullification of Umahi’s continued stay in office is expected to ultimately get to the apex court for resolution.
However, the Supreme Court on its part has also been enmeshed in conflicting judgments. But as the final court in the land, it still behoves it to give a verdict that will not only cure the discrepancies that are brewing in the polity as the 2023 general election draws near but give sound judgments that will stand the test of time and equally deepen democracy in the country.
Justice Ekwo’s judgment appears to have set the ball rolling to sanitise the nation’s battered democracy. The damage done by politicians to the nation’s democratic values will take a radical new order to fix.