Lawmakers as Lawbreakers

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The defection of Senator Yele Omogunwa from the Peoples Democratic Party to the All Progressives Congress last week has again shown that the country’s lawmakers have little or no respect for the laws they enact. Davidson Iriekpen writes

There was friction in the Senate last Wednesday the Senate President, Bukola Saraki, read a letter by Senator Yele Omogunwa (Ondo South) announcing his defection from the political party through which he sought election to the Senate, Peoples Democratic Party (PDP) to the All Progressives Congress (APC). Omogunwa said he was defecting from the PDP to support the governorship candidate of the APC in the just concluded election.

The reason he gave for his defection infuriated the Minority Leader, Senator Godswill Akpabio, who immediately raised a point of order, citing Order 43 in Senate Standing Rules, which empowers a senator to make a personal explanation on any given subject. Against this background, Akpabio asked Saraki to declare the seat of Omogunwa vacant, insisting that the only reason allowed by the constitution for defection is a crisis in the party.

According to him, there was no leadership crisis any longer in PDP, following a recent Supreme Court judgment, which he said acknowledged the Senator Ahmed Markarfi caretaker committee as the authentic leadership of the PDP. Hence, he said there was no division in the party that could provide any justification for Omogunwa’s defection.

But Saraki ruled Akpabio out of order, an action which further exacerbated the depth of anger of the PDP senators. The PDP senators were further provoked by the submission of Senator Dino Melaye (Kogi West), who cited Section 68 (g,h) of the 1999 Constitution (as amended) to explain that Omogunwa’s defection was justifiable in view of the division in PDP.

But Senator Peter Nwaboshi (Delta North) raised another point of order, stating that the intervention of Melaye was a breach of procedure as he further argued that after the Senate President had ruled Akpabio out of order and therefore, it was wrong for Melaye to speak on the same subject matter.

Realising that they were not having the listening ears of the president, the PDP senators opted to walk out in protest. At a later briefing, Akpabio said they had opted to stage a walkout because the action of Omogunwa was a breach of constitutional provisions with a claim that as lawmakers, they must not be seen to be “lawbreakers.”

Akpabio insisted that Omogunwa’s defection was misplaced because there was no division in the PDP following the decision of the apex court, which he said had recognised Makarfi’s caretaker committee as the authentic PDP body and hence, their decision to call on Saraki to “do the needful” by declaring Omogunwa’s seat vacant at the plenary.

Pundits consider Omogunwa’s action as a breach of the Constitution and Supreme Court’s judgment. The apex court had last year laid the issue of defection as it concerns the legislature to rest when it decided the case between the Labour Party versus Ifedayo 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 at the legislative 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 at both 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 former 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.

Besides, the Supreme Court 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), justifies 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 the 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 who 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.

He added: “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.”

But one thing that shocked many Nigerians was that the issue could persist after the Supreme Court had extensively laid it to rest. More shocking, perhaps, was the way and manner Saraki treated the issue due to the fact the lawmakers defected from the opposition political party to his party, the APC.

It is known fact that there is no crisis. Apart from Justice Okon Abang, who has consistently maintained that Ali Modu Sheriff is the National Chairman of the PDP, other courts and the Court of Appeal have endorsed the Senator Ahmed Makarfi-led group as the authentic leadership of the party.

To many analysts, what the latest defection and attitude of Saraki portray is that the country is being governed by sentiments and not laws. While it can be said that the problem with the country has not always been the dearth of laws, it has always been how to implement and enforce them.

They are of the belief that the attitude of Saraki confirms the popular assertion that defections are usually encouraged by either the presiding officer of the legislature, whose duty it is to automatically declare the seat of the defecting lawmaker vacant as stipulated by the constitution. But because it gives the presiding officers, governors or president as the case may be the opportunity to have firmer control of the legislature, a blind eye is usually turned to the issue when 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: “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 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.”

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 he 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), justify 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 so common is the fact that sometimes, the lawmakers usually run away with the impression that before the suit filed against them is pursued to the Supreme Court, the four years he/she would have stayed in the assembly would have been exhausted, like in the Abegunde case. They believe that if any presiding officer especially at the federal level displays courage and declares a seat vacant, it would serve as deterrent.

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, 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 their actions, to resign from the House, they ignored the order.

The height of the lawlessness was when Tambuwal himself, the presiding officer of the House, defected from the PDP to the APC and still held on to his position as Speaker instead of honourably resigning his position.

While the PDP did not comment on the issue, the APC said the minority party would continue to cry and cry more. It also invited other PDP senators to join the APC. To many Nigerians, therefore, this was a surprise because, before the party took over government at the federal level, it had consistently described the PDP as lawless. Evidence has now shown that all the APC did then was to deceive Nigerians into believing that they are better. But today, they have seen that members of both parties are one and the same.

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But one thing that shocked many Nigerians was that the issue could persist after the Supreme Court had extensively laid it to rest. More shocking, perhaps, was the way and manner Saraki treated the issue due to the fact the lawmakers defected from the opposition political party to his party, the APC