When Lawmakers Break the Law

 Executive Briefing

 Davidson Iriekpen argues that the decision of the Speaker of the House of Representatives, Yakubu Dogara to allow two members of the Peoples Democratic Party who defected to the All Progressives Congress to retain their seats is illegal, as it violates the clear provisions of the constitution as interpreted by the Supreme Court

For the umpteenth time last Thursday, two members of the Peoples Democratic Party (PDP) in the House of Representatives defected to the ruling All Progressives Congress (APC). The members, Zaphaniah Jisalo, representing Abuja Municipal Area Council /Bwari Federal Constituency of the Federal Capital Territory (FCT), and Ahmed-Tijani Damisa from Okene/Ogori-Magongo Federal Constituency in Kogi State, had their respective letters of defection read on the floor of the house by the speaker, Yakubu Dogara, as usual, cited divisions in the PDP as reasons for abandoning their party.

 Knowing that there is no division in the party since the Supreme Court decided the leadership tussle between Ali Modu Sheriff and Ahmed Makarfi, the excuse by the defectors did not go down well with PDP members who promptly raised objection.
The House Minority Whip, Umar Barde (PDP, Kaduna) in a point of order, argued that the seats of the defectors ought to be declared vacant sequel to Section 68 (1g) of the constitution (as amended). His argument was supported by the Chairman of the House Committee on Ethics and Privileges, Osai Nicholas Ossai (PDP, Delta), who urged the speaker to respect section 68, by declaring the seats of the defectors vacant. They equally referred the entire house to the recent decision of the Supreme Court which resolved the leadership crisis in the party.

 But in a surprise move, the speaker, Dogara, waded in, explaining that the reference to Section 68 (1g) of the 1999 Constitution by PDP members for the defectors to vacate their seats was insufficient to warrant declaring the seats vacant, especially as the constitution did not define what constituted a division in a political party. He added that the division in a party was not pronounced in the constitution and so lawmakers should not be prohibited from defecting.

> He said: “Division in a political party is not defined by the constitution, the constitution does not state whether it should be at the national, state or local government level. So we should allow the judiciary to do its job.”
> He urged the PDP to seek redress in court if not satisfied with the development.
> The defection of the two lawmakers brings to six, the number of PDP members who have so far defected to the APC in the 8th Assembly. They included Hon. Tony Nwoye from Anambra, Edward Pwajok from Plateau, Hassan Saleh from Benue and Adamu Kamale, Adamawa.

> Pundits consider Jisalo and Damisa’s action as a breach of the constitution and the Supreme Court’s judgment. The apex court had last year extensively dealt with the issue of defection as it concerns the legislature 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, Ondo State He lost at both the high court and the Court of Appeal. Both courts held that the defection was ‘unjustifiable.’

> In its judgment, a panel of the Supreme Court, 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 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 was 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 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.”

> For lawmakers, who frequently use crisis in their wards and state chapters of their political parties as an excuse to defect, the court held that a division in a party at the state level would not entitle a legislator to abandon the party on which platform he or she contested and won his or her seat. It said 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, would justify a person’s defection to another party.

> The court further reminded any lawmaker wishing to defect to be guided by the 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 or division that made it impossible or impracticable for a particular party to function as such would, 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.

> 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 cconstitution, division in a party at the state level did not entitle a legislator to abandon the party on which 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.”

> It is therefore shocking that despite the clear judgment of the Supreme Court, members of the National Assembly are still relying on the rejected definition of division to ditch their party for another. More shocking, perhaps, was the way Dogara, a lawyer, who swore to defend the constitution at all times on assumption of office, treated the issue because the affected lawmakers defected from the opposition political party to his party, the APC.

> The Supreme Court in its judgment had extensively dealt with every aspect of the issue especially his claim that “the division in a party is not explained in the constitution and so lawmakers cannot be prohibited from defecting.”
> To many analysts, the attitude of Dogara portrays the country as one being governed by sentiments and not laws. Those who say that the problem with the country has not always been the dearth of laws, but implementing and enforcing them, are obviously right.

> The latest defections have confirmed 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 them and the government in power the opportunity to have firmer control of the legislature, a blind eye is usually turned to the issue when it comes up.
> Others have said that one the major reasons why Nigeria is not making much progress since 1960, is because there is no law and order. This, according to many pundits, is because those who make, implement and enforce laws are themselves chronic lawbreakers. This, no doubt, is why there is massive disorderliness in every sphere in the country.

> 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.”

> 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.

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 It is therefore shocking that despite the clear judgment of the Supreme Court, members of the National Assembly are still relying on the rejected definition of division to ditch their party for another