By Sylvester Udemezue
The current commentary is a word of caution to lawyers in Nigeria generally. Permit me to respectfully say that unless we as lawyers stand up to defend constitutional democracy in Nigeria, democracy, rule of law and Nigeria may collapse upon us, and lawyers would be held responsible for destruction of both democracy and Nigeria. That the brouhaha in Rivers State has lingered till today is largely because Nigerian lawyers generally have refused to face the truth, play their role and discharge their primary duties to the state and professional responsibilities to the course of justice and the rule of law. I have some questions to ask all lawyers involved either as Counsel, interested parties or as observers in the imbroglio. But before then, please forget whose ox is gored, forget which side you belong to or you represent as a Lawyer, and just check out these, dispassionately and objectively:
(1). I have seen Paragraphs 1, 2, 3, 4, 5, 6, 8, and 15 of the Affidavit in support duly deposed to by Hon Martins Amaewhule on behalf of himself and 26 other members of the Rivers State House of Assembly, and filed on 13 December 2023 in Suit No: FHC/ABJ/CD/1783/2023 (Rt Hon Martins Amaewhule & 26 Ors v INEC & 5 Ors) wherein the Honourable declared on behalf of himself and 26 other honorables, that all 27 of them had VOLUNTARILY defected to another political party on 11 December 2023.
(2). I have watched media coverage of the open defection of Martins Amaewhule and 25 other Honorables on the floor of the hallowed chambers of the Rivers State House of Assembly on 11 December 2023. Martins Amaewhule and his group of 25 Honorables had read their letters of defection on the floor of the House in full glare of the world. The reports and VIDEOS are all over the place for all to see. Examples:
Below is a YouTube live video of Honorable Martins Amaewhule leading 25/26 other members of the Rivers House of Assembly to defect on 11 December 2023. This happened on the floor of the House. Please watch it: <https://youtu.be/5uX-E3yxvs0?si=tzawr3xv8aN9ncy5> Accessed 07 July 2024
Below is a YouTube live video of Honorable Martins Amaewhule and 25/26 other members of the Rivers House of Assembly after the 11 December 2023 defection, being warmly received/welcomed by the leadership of their new political party:
<https://youtu.be/8LS_VTc7YBo?si=RiBPcSGsuCXVit44> Accessed 07 July 2024
(3). I have read several times, the Press Release issued thereafter by Hon Martins Amaewhule affirming their defection, defending their defection, and even openly bragging about the defection, saying they defected because (a) there was “division” in the state chapter of PDP and in the House of Assembly, and that (b). they were defect in deference to the Renewed Hope Agenda. Eagleonline reports: “Speaking after reading the letters signed by the defected lawmakers, Amaewhule directed the Clerk of the House to convey their resolution to Fubara and other relevant authorities. ” (See: “Rivers: Why we defected from PDP to APC — 27 lawmakers”; Eagleonline; 11 December 2023). Platforms Africa reports: ‘The 26 lawmakers of the Rivers State House of Assembly have said that their defection from the Peoples Democratic Party to the All Progressives Congress was tied to President Bola Tinubu’s “Renewed Hope Agenda”. The factional Speaker, Martins Amaewhule, who led the mass defection, adduced the reason.’ (“Why We Dumped PDP For APC — 26 Rivers Lawmakers”; Platforms Africa; 19 December 2023). Sahara Reporters report: “Video Confirms Defection Of Rivers Former Speaker, Amaewhule, Colleagues From PDP To APC Despite Court Case” (24 May 2024). Vanguard reports: “The factional Speaker of the Rivers State House of Assembly, Rt. Hon Martins Chike Amaewhule said the twenty seven lawmakers decided to defect from the People’s Democratic Party, PDP to the All Progressives Congress, APC because of the crisis rocking the state chapter of the PDP. Amaewhule also said that they left their former party because President Bola Ahmed Tinubu is doing very well with the appointments of Rivers indigenes into various key positions in his government.” (See: “Rivers Factional Assembly Speaker, Amaewhule Lists Reasons for Defection”; VanguardNgr; 17 December 2023).
(4). I’ve read news reports that the group of 27 Honorables later deposed to an affidavit filed at the Federal High Court, admitting on oath, that they’d defected from their own.
(5). I have read Section 109(1)(g) of the Constitution of Nigerian,1999. I’ve researched and researched and researched to see if there was any division or merger in the PDP at the National level, as of the date of the defection. I have seen no such evidence of division in the party; or, can there exist a hidden division in a political party, not reported anywhere in the news? Also, I have not found any evidence of a merger or merger plans involving the PDP as of 11 December 2023.
(6). I’ve read, from top to bottom, the case of DAPIALONG V. DARIYE (SC 39/2007) [2007] NGSC 181 (27 April 2007) (Supreme Court) where the Supreme Court held that the 14 members of the Plateau State House of Assembly who had defected from their political party to another political party when there was no division in their own party, had thereby AUTOMATICALLY lost their seats in the Plateau State House of Assembly.
(7). I have read the case of A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178, where the Supreme Court of Nigeria (per Aderemi, JSC at page 178) held as follows:
A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178, the Supreme Court of Nigeria (per Aderemi, JSC at page 178) stated thus: “Members of the Senate and House of Representatives were elected by the people…. I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision…. 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.”
(8). I have read the case of ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2014)LPELR-23683(CA) (pp. 78-79 paras. B)(CA), where the Court of Appeal (Per MSHELIA, J.C.A) held as follows: “Appellant has violated the provisions of Section 68(1)(g) of the 1999 Constitution. The consequence is that appellant has to mandatorily vacate his seat as member in the House of Representatives. The case of A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178 is relevant and instructive on this issue. The Apex Court per Aderemi, JSC at page 178 stated thus: “Members of the Senate and House of Representatives were elected by the people as were the President. Applying the well known principles of interpretation to the above provision of the Constitution, I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision. His Lordship further stated: -“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.”*_
(9). I have indetified the two types Of Defection In a Legislative House In Nigeria (My Opinion): Under the Constitution of the Federal Republic of Nigeria, 1999, defection by a member of a legislative house (the National Assembly or the House of Assembly of a State) may be constitutional or unconstitutional. A constitutional defection is one that happens “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”. An unconstitutional defection occurs when the defection 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”. A major different between a constitutional defection and an unconstitutional defection, in effect, is that in the case of the former, the defecting lawmaker does not lose his seat in the House, unlike in the latter case which results in automatic loss of his seat, meaning that his seat automatically becomes vacant.
(10). I have read the case of SPEAKER, CROSS RIVER HOUSE OF ASSEMBLY & ANOR V. EKOM & ORS (2021) LPELR-55738(CA) Per MUHAMMED LAWAL SHUAIBU ,JCA (P. 21, paras. C-F) on what is factionalosation in a political party, and on the type and definition of the type of “Division” of “Merger” That Can Justify Defection In A Legislative House In Nigeria:
(11). I have searched and researched and researched to see whether there is any evidence that anyone or group had coerced or otherwise compelled Hon Martins Amaewhule and his 25-member group of Honorables into the defection that happened on 11 December 2023. I have not seen any sign of coercion or compulsion. This means that Martins Amaewhule and his group had deliberately, voluntarily, intentionally and willingly, without legal justification, defected from PDP to another political party on 11 December 2023.
(12). I have read and researched much about the principles of Volenti Non Fit Injuria, and of a person having to be legally responsible for the necessary legal consequences of his deliberate acts.
(13). I have read the immutable pronouncement of Hon Justice PIUS OLAYIWOLA ADEREMI, JSC in CHIBUIKE AMAECHI V. INEC (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt.1080) 227 to the effect that “in all countries of the world which operate under the rule of law, politics are always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts” and also the declaration in the case of MILITARY GOVERNMENT OF LAGOS STATE V EMEKA ODUMEGWU-OJUKWU* (1986) 1 NWLR (Pt.18) 621, (2001);
(2001) FWLR (Part 50) 1779 at 1800, to the effect that “The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which profess loudly to follow the rule of law”.
(14). I have researched and written extensively on what the role of a lawyer and a law reseacher should be in his society towards the sustenance of the rule of law and promotion of constitutional democracy. Among relevant write ups in this regard are: (A) . “Has the Recent Supreme Court Decision in DAUDA V. FRN changed the System of Criminal Justice Administration in Nigeria?”* By Sylvester Udemezue (18 November 2018; barristerng.com); and (B) . “The Lawyer`s Place In Mismanagement Of Media Misinformation In Democratic Nigeria”* By Sylvester Udemezue (05 November 2016; thenigerialawyer.com). In the latter of the two, I had cited numerous works among which is an article titled, “Role of Lawyer in the Society: A Critical Analysis,” and published in The Clarion: A Multidisciplinary International Journal, (2012) I(I)148-52, wherein the author, Balin Hazarika, has this to say:
“In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so. A lawyer’s function therefore lays on him a variety of legal and moral obligations toward:…the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the power of the state and other interests in society.”
(15). I can remember Mahatma Gandhi`s shining example of what the role of lawyer should be in society. On page 4 of the book, THE LAW & THE LAWYERS (by M.K Gandhi), it is reported thus about Mahatma Gandhi`s love of truth and justice: “If there was one characteristic more than another that stamped Gandhi as a man amongst men, it was his extraordinary love of truth. The Mahatma was an ardent and inveterate votary of truth. Truth, like nonviolence, was the first article of his faith and the last article of his creed. It was therefore no wonder that in his practice of the law, he maintained the highest traditions of the profession and did not swerve by a hair’s breadth from the path of rectitude and integrity. He was always valiant for truth, bold in asserting it in scorn of all consequence, and never sold the truth to serve the interests of his clients. He never forgot “that if he was the advocate of an individual, and retained and remunerated, often inadequately, for his valuable services, yet he had a prior and perpetual retainer on behalf of truth and justice.” It may truly be said of him that he practiced law without compromising truth.”
(16). In several writings, I’ve recalled Mr. Justice Crampton’s admonition to legal minds in the case of R. v. O’Connell et al. (1844), 7 I.L.R. 261 at 313, “[the lawyer] will ever bear in mind that if he be the Advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other license which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer.”
(17). Now, in my writeup, “THE PLACE FOR “KICK-BACKS” & “BRIBES” IN OUR EFFORTS TO KICK BACK CORRUPTION & KICK-START RESPONSIBLE GOVERNANCE IN NIGERIA” By Sylvester Udemezue.
23 October 2018, I tried to paint a picture of what the role of Lawyers and legal researchers should be in a democracy: “A major duty legal researchers and rule of law campaigners owe society in the practice of constitutional democracy for promotion and sustenance of responsible and responsive governance is to constantly offer legal opinions on issues of law to guide our leaders and institutions in the discharge of leadership responsibilities”
(18). It is in view of the aferosaid that we have decided to ask ask the following questions:
(A). What are all these lawsuits in re Rivers State House of Assembly, all about?
(B). Are we trying to prove that Martins Amaewhule and his group did not defect on 11 December 2023?
(C). Are the lawsuits trying to change the fact of the defection or are the lawsuits going to manufacture a fact to show that there was a “division” in the PDP on 11 December 2023? Or are the lawsuits going to rewrite the provisions of Section 109 of the Constitution or change the decisions in the cases of DAPIALONG V. DARIYE (SC); A.G. FEDERATION v. ABUBAKAR (SC); and the Court of Appeal decision in ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS?
(D) Are the lawsuits trying to prove that the 24 Honorables were compelled to defect?
(E) What are the lawsuits and brouhaha all about? Can someone educate me? Do we want to operate democracy or to kill democracy? Do we want to stand the law on its head or to turn the law upside down? What are we doing? What his the brouhaha all about? Some group of people who knew about Section 109(1)(g) of the Constitution and who knew there was absolutely no division in the PDP, woke up from sleep and defected to another political party whereupon they lost their seats and accordingly ceased to be members of the Rivers State House of Assembly. Instead of them going home to prepare for fresh elections, lawsuits are flying all over the place, in all directions. Why? Who did this to nigeria?
(19). MY HUMBLE OPINION:
The 25/27 Honorables who defected from their political party to another on 11 December 2023, have lost their seats and are no longer members of the Rivers State House of Assembly. Unless we call a spade by its name, we’d not make any progress in our claim to practice Constitutional democracy. The defected Honorables well know, or ought to have known the legal consequences of their said defection at a time when there was absolutely NO form of division in the political party on whose platform they were elected. I think perhaps the defected lawmakers had thought (unfortunately erroneously) that since they were in the majority, then NO SHAKING. That’s why, perhaps, they had felt so confident in flagrantly flouting the Constitution of the Federal Republic.
(10). My people, it’s the rule of law that governs constitutional democracy, not majority rule. Any majority rule that fails to comply with the rule of law is void ab initio, the rule of law being the inviolable foundation of constitutional democracy. I accordingly submit that being no longer members of the Rivers State House of Assembly, the defected Honorables may no longer be able to take any action in the name of or on behalf of OR as the Rivers State House of Assembly. I think that, as things stand stand today, if they purport to do otherwise, any person or group who possesses relevant locus standi could go to Court, relying on DAPIANLONG V DARIYE, etc, to have their actions set aside on grounds that they are now impostors.
(21). NOTE: My humble opinion is without prejudice to whatever the courts will say in the end.As I wrote in one of my commentaries, “All in all, mine is a mere opinion, respectfully and disinterest offered, without prejudice to the wisdom of the Supreme Court of Nigeria, which has the final say. The Supreme Court is a court of law, possessing appellate, original and supervisory jurisdictions. It has also been described as a court of policy. I respect their Lordships. The ball is now in their court, to do justice to the case, according to law. We are bound by their decisions. ‘Let rule of law prevail’ is my prayer”*_ (SEE: “Does Nigeria’s Supreme Court Have Original Jurisdiction to Entertain the Case Filed by the Senate Over CJN Onoghen” (By Sylvester Udemezue; 03 February 2019; thenigerialawyer.com)
(22). BOTTOM LINE:
Speaking generally, Rule 1 of the Rules of Professional Conduct for Legal Practitioners (RPC), 2023 imposes on every Legal Practitioner in Nigeria a perpetual duty “to uphold and observe the rule of law,” and to “promote and foster the cause of justice.” Also, in Rule 15, RPC, a lawyer is barred from asserting any position when he knows or ought reasonably to know that such “would serve merely to harass or maliciously injure another.” He must also not make a false statement “OF LAW OR FACT.” Generally, the lawyer is not expected to “aid or participate in conduct that he believes to be unlawful even though there’s some support for an argument that the conduct is legal.”
(23). Honestly, I think much of the challenges some Legal Practitioners in Nigeria encounter in this respect have more to do with their difficulty in being able to draw a clear line being between their duties as lawyers in society and their responsibilities to their clients or to political, social, religious or ethnic organisations or other interest groups to which they belong or whose interests they represent. Some Legal Practitioners easily overlook the fact that, irrespective of their political leanings or cultural, ethnic, religious or social predilections, they have a primary responsibility as lawyers to uphold the truth, and promote the rule of law irrespective of whose ox is gored. This duty is overriding and supplants the lawyer`s duty to his clients and/or any desire on his part to protect or advance the/any provincial interests he represents. It could therefore be concluded that promoting the truth, justice, and rule of law, is the most obvious and fundamental role for lawyers in a constitutional democracy, although this duty is not necessarily such a simple one. Nevertheless, let it be known that if Nigerian lawyers for whatever reasons fail in these core duties, our hope of building, sustaining and advancing true constitutional democracy and democractic constitutionalism would become a mirage.
Respectfully,
Sylvester Udemezue (udems)
Proctor,
The Reality Ministry,
(A Non-aligned, Nonprofit Public Interest Law Advocacy Group)
08039136749.
therealityministry@gmail.com.