All Animals are Not Equal

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Last week’s defection of two members of the Peoples Democratic Party to the ruling All Progressives Congress in the House of Representatives and the handling of same by the Speaker, Hon. Yakubu Dogara, who pretended as if the development was normal, may have again confirmed that in Nigeria, different rules apply to different people. Davidson Iriekpen writes

Just when Nigerians had concluded that the issue of defection especially in the legislature had been laid to rest sequel to a judgment of the highest court in the land, the Supreme Court in the landmark case between the Labour Party and Hon. Ifedayo Abegunde, representing Akure South/North Federal Constituency of Ondo State, the issue, like a recurring decimal, reared its ugly head again in the House of Representatives last week.

Last Wednesday, two members of the Peoples Democratic Party (PDP): Hon. Tony Nwoye (Anambra) and Hon. Udende Emmanuel (Benue), defected to the ruling All Progressives Congress (APC). In two separate letters announcing their defection and read by the Speaker, Hon. Yakubu Dogara, both men cited what they said were factions in the PDP. The defectors noted that the PDP had been divided into three factions headed by Prof. Jerry Gana, Senator Ahmed Makarfi and Senator Ali Modu Sheriff.

Nwoye and Emmanuel’s letters stated that they do not wish to belong to any of the factions. As it is usually the case, the announcement was welcomed by APC members, who chanted the party’s slogan: “change, change, change” for several minutes before calm was restored.

However, Minority Leader, Hon. Leo Ogor, raised a point of order insisting that there was no faction in the PDP. But his point of order was overruled by Dogara, who said there was no need to debate the matter on the floor of the House, as such should be handled by the affected party.

The apex court had laid the issue of defection as it concerns the legislature to rest last year, when it decided the case between between the Labour Party versus Abegunde. In a unanimous judgment by a seven-man panel of justices, the apex court had ordered Abegunde to immediately vacate his seat in the House of Representatives on account of his defection from the Labour Party to the defunct Action Congress of Nigeria (ACN) because he was unfit to remain in the House.

Abegunde had defected from LP to the ACN in 2011 and in a bid to forestall any possible move by his party to recall him, lodged a suit before the Federal High Court sitting in Akure. He, however, lost both at the high court and the Court of Appeal, with the concurrent judgments of the lower courts equally declaring the defection as “unjustifiable.”

In their judgment, the Supreme Court panel, which was headed by the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, held that the lawmaker acted illegally by abandoning the party that sponsored his election. The court stressed that as at the time Abegunde defected to the ACN, there was no division in his parent party, LP.

The apex court maintained that the lawmaker’s defection to another party would have been justified if there was a division in the national structures of the LP, such that is capable of hampering the smooth operation of the party. It held that Abegunde’s defection could not be validated since his excuse of purported division in the LP was not in existence at the national level of the party.

The Supreme Court also stressed that the “division” or “factionalisation” of Labour Party, which was cited by Abegunde as his excuse for abandoning the party, was only at the state level.
Justice Musa Muhammad, who read the lead judgment, held that only a division that made it “impossible or impracticable” for the party to function by virtue of the provision of Section 68(1)(g) of the 1999 Constitution, “justifies a person’s defection to another party.”

According to the court, “The principles enunciated by this court in the two cases – FEDECO vs Goni supra and the Attorney General of the Federation vs Abubakar supra – is to the effect that only such factionalisation, fragmentation, splintering or ‘division’ that makes it impossible or impracticable for a particular 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, “Otherwise, has rightly held by the courts below, the defector automatically loses his seat.”

Justice Muhammad further maintained that by virtue of the combined provisions of section 68(1)(a) and (g) as well as section 222(a), (e) and (f) of the Constitution, division in a party at the state level did not entitle a legislator to abandon the party on whose platform he or she contested and won his or her seat.
Moreover, the apex court discountenanced the argument of counsel to the appellant, Mr. Akin Ladipo, to the effect that not “any division” in a political party would entitle a person to defect from a party that sponsored his election without having to lose his seat.

“I am unable to agree with learned counsel to the appellant that on facts and 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 word ‘division’ as used by the framers of the proviso to section 68(1)(g) of the 1999 constitution as amended”, Justice Muhammad held.

“Not being the kind of ‘division’ that affects the national structures and therefore, the corporate existence of the party, learned counsel insists, 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 ACN from the Labour Party on which platform he contested and won the seat. This position of the respondents is unassailable.”

Investigation by THISDAY revealed that both men had long perfected the defections. For instance, Nwoye is reportedly gearing up to contest the governorship election in Anambra State on the platform of the APC and is uncertain of the ticket of the PDP since he is not in good terms with the powers that be in the party. To them, they thought that seeing their defection materialise could not have been better than now.

But one thing that shocked many Nigerians was that the issue could come up again after the Supreme Court had conclusively laid it to rest. Even more shocking, perhaps, was the way and manner Speaker Dogara treated the issue perhaps due to the fact the lawmakers defected from the opposition political party to his party, the APC.
For many analysts, therefore, what the latest defection and attitude of Dogara portray is that the country is being governed by sentiments instead of laws and that different rules might be applicable to different people. While it can be said that the problem with the country has not always been that of dearth of laws, it has always been how to implement and enforce them.

A majority of commentators are of the belief that the attitude of Dogara confirmed the popular assertion that defections are usually encouraged by either the presiding officer of the assembly, whose duty it is to automatically declare the seat of the defecting lawmaker vacant as stipulated by the constitution. But because it gives the Speaker, governor or president as the case may be the opportunity to have firmer control of the legislature with an increased number, a blind eye is usually turned to the issue whenever it comes up.

The 1999 Constitution is very explicit on how to deal with the issue of defection as it concerns the legislature. For instance, Section 68(1) (109(1)) states that “A member of the Senate or House of Representatives (House of Assembly) shall vacate his seat in the House of which he is a member if (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that house was elected; Provided that his membership of the latter political party 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.”

Section 68(2) (109(2)) also states: “The President of the Senate or the Speaker of the House of Representatives (as the case may be) shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that members.”

The import of this is that the legislators must establish that their reason for defecting to another political party is that there is division in their party or that there was a merger of that party with another or factions in the party. And even at that, such lawmaker cannot successfully cross over to another party until the presiding officer; the Senate President or Speaker, House of Representatives or Speaker, House of Assembly, as the case may be, has endorsed the defection.

For lawmakers who frequently use crisis in their ward and state chapters of their political parties as an excuse to defect, the court stressed that a division in a party at the state level does not entitled a legislator to abandon the party on whose platform he or she contested and won his or her seat. It again reminded them that only a division that makes it impossible or impracticable for the party to function by virtue of the provision of Section 68(1)(g) of the 1999 Constitution, justifies a person’s defection to another party.

The court further reminded any intending lawmaker wishing to defect to be guided by the principles it enunciated in the two cases – FEDECO vs Goni and the Attorney General of the Federation vs Abubakar, where it stated that only factionalisation, fragmentation, splintering or division that makes it impossible or impracticable for a particular party to function as such will, by virtue of the proviso to section 68(1)(g), justifies a person’s defection to another party and the retention of his seat for the unexpired term in the house.

Observers have argued that part of the reasons defections have become cheap and common include the fact that sometimes, the lawmakers usually run away with the impression that before the case filed against them is pursued to the Supreme Court, the four years he/she would have stayed in the assembly would have been expired as it was in Abegunde’s case.

There have also been instances, where lawmakers would defect from the party that sponsored their elections on the mere basis of the fact that their governors either moved to another party or because there is a new governor in the state, who would want to damn the constitution in other for the lawmakers to be in his party.

The height of the defection of lawmakers in the country was when 37 members of the House of Representatives and almost the same number in the Senate defected from the PDP to the APC. The Speaker of the House, Aminu Tambuwal (now the Governor of Sokoto State), who swore to defend the constitution, because of his own agenda looked the other way.

Even when a Federal High Court ordered the lawmakers, who apparently knew what they were doing and the implications of the actions, to resign from the House, they ignored the order. The climax was when Tambuwal too defected from the PDP to the APC and held on to his position as Speaker instead of resigning from his position and quitting the House.

Minority Leader of the House, Ogor, who spoke to THISDAY on the matter, expressed disappointment in the two members. He insisted that there was no basis for their defection as there was no faction in the PDP, adding that no court had ruled otherwise. He said he would approach the party with the votes and proceedings of the House.
“The Supreme Court ruling says for there to be a faction, some members of the executive of the party have to be a part of the faction. The convention took a decision of setting up an ad hoc committee to organise elections in three months. We would head to court to make sure they vacate those seats, then, we go for bye-election to replace those interlopers. They think they can go to APC so easily, but they are wrong. So as long as we have a Supreme Court ruling on this matter, they are history,” Ogor said.

Ogor admitted that as minority leader, he was taken completely unawares by the defections. “I am so shocked and highly disappointed. I would have thought they would have discussed this kind of issue with me. They know there is no faction but they are trying to create one. They did not do proper consultations on this. These are young men, who do not know their right from their left in politics,” he said.

In the same breath, the PDP has threatened to ensure that both Nwoye and Emmanuel lose their seats in the House. A statement signed by the Secretary of the Board of Trustees (BoT) of the party, Mr. Ojo Madueke, PDP said there was only one approved National Convention which took place in Port Harcourt on Saturday, May 21, 2016, which it said was in accordance with the PDP constitution. The statement added that the party “approved some far reaching resolutions that had the unanimous support of those, who attended the Port Harcourt convention with subsequent endorsements of another PDP political meeting that took place in Abuja on the same day”.

The statement further added that the conveners of the Abuja meeting had since integrated their positions with the structures and resolutions of the Port Harcourt convention, adding that aggrieved members are being reconciled across the length and breadth of the country.

“Subsequent meetings of first, Board of Trustees members, and second, meetings with the PDP Governors’ Forum, leadership of National Assembly and former Ministers in PDP Government Forum, and a PDP Former Governors’ Forum, held and decided to work together.

“The rank and file of the party had resolved to work together and PDP has never been stronger than it is now since its entry into the honourable role of a robust and principled opposition. Any suggestion of a faction, is at best ill-informed and ignorant, and at worst, is part of a grand plan to decimate the only political platform today that is ready, experienced and able to honour the nation’s invitation to have a credible opposition party that will hold government of the day accountable and thereby strengthen and nourish our young democracy.

“Let it therefore be understood by those of our members in the National Assembly who may be tempted to jump ship, or have already jumped, that on the basis of clear decisions of cases decided in the Supreme Court, they stand the risk of losing their seats in parliament if they go ahead with their latest indulgence,” PDP said.

The party added that it would insist on a declaration of vacancy and subsequent elections in the affected constituencies in the event of such “misguided defections”, adding that “The pattern of PDP electoral victories all over the federation since the 2015 general election shows that where there are elections arising from such vacancies, PDP will return a more credible and more loyal representative of the people,” the statement said.

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But one thing that shocked many Nigerians was that the issue could come up again after the Supreme Court had conclusively laid it to rest. Even more shocking, perhaps, was the way and manner Speaker Dogara treated the issue perhaps due to the fact the lawmakers defected from the opposition political party to his party, the APC.

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For many analysts, therefore, what the latest defection and attitude of Dogara portray is that the country is being governed by sentiments instead of laws and that different rules might be applicable to different people. While it can be said that the problem with the country has not always been that of dearth of laws, it has always been how to implement and enforce them