Umahi Swims in Murky Waters

Last Tuesday’s judgment by a Federal High Court sacking the Ebonyi State governor, his deputy and the state’s lawmakers for defecting from their political parties to the ruling All Progressives Congress has again rekindled the debate on whether a governor can be removed from office over defection or not, Alex Enumah writes

A Federal High Court in Abuja on Tuesday stirred the hornet’s nest when it sacked Governor of Ebonyi State, Mr. David Umahi, and his deputy, Dr. Eric Kelechi Igwe, over their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC), thereby reigniting the debate.

The court also ordered the 15 members of the Ebonyi State House of Assembly, including the Speaker, who defected from the PDP to the APC to immediately vacate their seats.

In his judgment, Justice Inyang Ekwo held that the total number of 393,042 votes Umahi secured at the March 9, 2019 Ebonyi State governorship election belonged to the PDP, hence could not be legally transferred to the APC. The court noted that both Umahi and Igwe’s defection to the APC, not only threw out the PDP, but also the votes that belonged to the party.

Justice Ekwo held that the governor and his deputy failed to adequately defend the substantive issues concerning their defection. He further held that Umahi and his deputy cannot claim to be unaware of the “consequences of their act of defection.”

The judge pointed out that “the constitution is put in jeopardy when the will of the electorate who voted for a political party can be brazenly merchandised by candidates without consequence.” He noted that the “constitution does not treat the issue of defection lightly,” referencing Section 221 of the 1999 constitution.

Declaring the continued occupation of office by Messrs Umahi and Igwe unconstitutional, the court said it is in “breach of the provisions of Section 179 (2) (a) and (b) of the 1999 Constitution.”

“It would be constitutionally wrong for a person who was not sponsored by one political party, to defect and become a member of another political party before the expiration of the period he was elected,” the judge held.

“The APC cannot govern Ebonyi State through the 3rd and 4th defendants (Messrs Umahi and Igwe), when it did not win the election that produced them. “Having defected to another party, they cannot hold onto the votes of the plaintiff (PDP) to remain in office,” the court declared.

The judgment did not stop there, as the court went further to order 15 members of the Ebonyi House of Assembly, including the Speaker, who defected from the PDP to the APC as soon as the governor defected, to immediately vacate their seats.

Justice Ekwo held that their defection was unlawful and that having abandoned the political party on which platform they stood election, they could no longer occupy the seats.

The judge consequently declared their seats vacant and restrained them from further parading themselves in the capacity of members of the Ebonyi State House of Assembly.

However, Umahi who did not see anything wrong with his defection in November 2020, said the judgment was purchased. Speaking at a press conference in Abakaliki as soon as the judgment was delivered, Umahi, who said he was still the governor of Ebonyi State, added that he was not surprised that the judge delivered the judgment in favour of the PDP.

According to him, Justice Ekwo was on a mission to embarrass the APC and the federal government, saying, “I feel sorry for the Nigerian judiciary”. He said he would appeal the judgment.

Umahi declared: “I am still the Governor of Ebonyi State and there is no tension at all. In the first place, there is no constitutional provision for any hatchet man to remove a governor.  There are three ways whereby a governor can vacate his office: it is either by death, resignation and impeachment. There is no other constitutional provision that empowers a hatchet man to turn the Constitution upside down.

“I have listened to the judgment of Inyang Ekwo and it’s very obvious that he was on a mission. He was making all effort to upturn the rulings of the Appeal and Supreme Courts, on issues like this. We have heard the rumours before now that he was determined to give judgment against all known laws and the Constitution, first to embarrass the APC, and to equally embarrass the federal government.

“For me, I do not feel worried; but I feel so bad for the judiciary in Nigeria. The executives may have problems; the legislature may have problems, but the moment justice could be purchased, then we are in trouble in Nigeria. It’s obvious that the ruling this afternoon is clear evidence that this country is in trouble.

“And let me tell you, this same judge has over 10 cases against the Ebonyi State Government with him. And you can imagine what he is going to rule. We have petitioned him to NJC and we will follow it up to the end to ensure that this man (Ekwo) is brought to justice. I want you to disregard the judgment because it’s null and void.”

Umahi had in November 2020 dumped the PDP on which he was elected for two terms, and moved over to the APC. Owing to the development, Senator Sonni Ogbuoji approached the court by way of originating summons and asked it to hold that the governor, having defected to the APC from the PDP, ought to vacate the office.

Ironically, when the same suit came up for judgment before the Abakaliki Division of the Ebonyi State High Court penultimate week, Justice H. A. Njoku dismissed it. The judge ruled that the governor did not flout any provision of the Electoral Act or the constitution to warrant his removal from office.

When this happened the Ebonyi State Chapter of the PDP, vowed that it would appeal the judgment delivered by Justice H. A. Njoku at the Court of Appeal, describing it as a sham.  It added that the judge erred in delivering the judgment and that it would petition the National Judicial Council, stressing that the judge’s conduct debased the judiciary and abused court processes.

There is no doubt that what Umahi and the state government did not understand is that Justice Ekwo’s judgment may have again rekindled a fundamental question of who actually contests an election in Nigeria between a political party and a candidate.

While Section 109(1) (g) of the 1999 Constitution was purposely couched to ensure that state lawmakers who defected from the political parties which they used to enter the assemblies were not allowed to retain their seats, unless such defectors are able to justify their action, same was not clearly defined or stated for governors. For this reason, many governors have uncontrollably defected and nothing happened to them.

But on many occasions, the Supreme Court has emphasised sanctity of Section 221 of the 1999 Constitution (as amended) The section states: “No association, other than a political party, shall canvass for votes for any  candidate at any election or contribute to the funds of any political party or  to the election expenses of any candidate at an election.”

For example, in a locus classicus by the court in 2007 in the case of Amaechi vs INEC, Justice George Oguntade who delivered the lead judgment made it explicitly clear that without a political party in Nigeria, a candidate cannot contest election.  He said since there was no provision for independent candidacy in the Nigerian Constitution, it is a political party that wins election in Nigeria not the candidate.

According to him, a good or bad candidate may enhance or diminish the prospect of his party winning an election but that at the end of the day it is the party that wins or loses an election.

Justice Oguntade noted: “Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party winning but at the end of the day it is the party that wins or loses an election.”

Also in the case between James Faleke vs INEC, in 2016, the Supreme Court again reemphasised the sanctity of Section 221 of the 1999 Constitution (as amended) when it dismissed the appeal filed by James Faleke to challenge Governor Yahaya Bello

Justice Kudirat Kekere-Ekun who delivered the lead judgment held that Yahaya Bello, having become candidate of APC, and legally sponsored by the same party can lay claim to the votes scored by the party in the November 21, 2015 poll, even though the late former Governor Abubakar Audu was the party’s candidate.

“By virtue of the provisions of Section 221 of the 1999 Constitution, it is the political parties that actually contest elections. The governor, having become a candidate of APC, and legally sponsored by the same party can lay claim to the votes scored by the party in the Nov. 21, 2015 poll,’’ she held.

The latest was the Zamfara case where the apex court voided the primaries of the APC in the state and declared the election of the then ruling party candidates in the 2019 general election void.

The apex court had consequently directed that the party with the next highest number of votes should be declared the winner, paving the way for all the PDP candidates, including Governor Bello Matawalle that came second in the poll to be declared elected by the Independent National Electoral Commission (INEC).

The court took the position because in the eye of the law, it is the political parties that win elections in Nigeria and not the candidates.

Even though Tuesday’s verdict has the potential of causing a major political change in Ebonyi State, it is, however, not likely to take immediate effect, as parties to the suits still have the opportunity to exhaust their rights of appeal up to the Supreme Court level.