Election and Defection: Who Actually Owns the Votes? (Part 1)Introduction

T he Court of Appeal, Enugu Judicial Division, on Friday, 1st April, 2022, vindicated me fully, like Nostradamus, the man who saw tomorrow, when it held that defection cannot lead to a Governor or Deputy Governor vacating his seat. This has been my position all along. The Court unanimously dismissed the Appellants’ appeal, and held that the defection of Governor David Umahi and his Deputy, Kelechi Igwe, “may be immoral or even improper…it must be acknowledged that membership of political parties is an exercise of the freedom of association guaranteed by Section 40 of the Constitution”.

The Honourable Justice Taiwo O. Taiwo had also, on the 7th April, 2022, rejected PDP’s request to sack the Governor of Cross River State, Professor Ben Ayade, and his Deputy, Professor Ivara Esu, for earlier defecting from PDP to APC.

None of these judgements, I dare say, was too extraordinary, as the pronouncement on these issues concerning defection and ownership the votes cast at an election, were not new or novel. The Court of Appeal, Enugu made this point, before it rightly followed judicial precedents and the doctrine of stare decisis, rather than overrule the Supreme Court, a higher court. Respectfully I handled the very case of Governor Ayade and his Deputy, Esu.
The intermediate court in Enugu, while commending the learned trial Judge, Njoku, J, for respecting the hierarchy of courts, also held that had the lower court acceded to the argument of the Appellants’ counsel, for the trial court to fill an assumed lacuna in the Constitution by extrapolating consequences for elected legislators provided for in Sections 68(1)(g) and 109(1)(g) , so as to make elected Governor and his Deputy vacate their offices, would  “degenerate to judicial rascality”. The court emphasised that it is not the duty of courts to make laws, or speculate as to what the intention of the legislature will be outside the express and ordinary words used in the statute. This principle of interpretation is trite, hallowed and respected.

As regards the Constitution, “the duty is even higher, and it is beyond the courts to insert or manufacture words into the express provisions of the “Constitution”, the court warned.

Many Nigerians, surprisingly, including many Lawyers, still erroneously cite old cases to argue that votes belong to political parties, and not to individuals. No. This is no longer the position of the law.

The intermediate court carefully distinguished these old (now extinct) cases of AMAECHI v INEC (2008) LPELR-446(SC) and FALEKE v INEC (2016) 18 NWLR (1543), and found them gravely irrelevant in the new dispensation of our constitutional regime, having regard to the clear provisions of Section 141 of the Electoral Act 2010, as amended, and Section 285(13) of the 1999 Constitution, as altered.

Besides these provisions, the aforementioned cases have since been overruled and consigned to the judicial trashcan of historical oblivion, to remain there as relics and monuments of the past and artefacts fit only for a national museum. The new regime of authorities has since been anchored by the Apex Court, and followed by the intermediate court. These courts now insist that votes Wholly Belong to Candidates, and Not to Political Parties, which merely serve as their Vehicles to transport them, and Agents to canvass, garner and gather votes for the candidates. See: CPC & ANOR v OMBUGADU & ANOR (2013) LPELR-21007(SC); OZOMGBACHI v AMADI & ORS (2018) LPELR-45152(SC); NGIGE v AKUNYULI (2012) 15 NWLR (PT 1323) 343; NWANKWO & ANOR v  INEC & ORS (2019).LPELR-48862(CA); HARUNA v APC & ORS (2019) LPELR-47777(CA).

The Court of Appeal, following stare decisis, found that once a person has been elected Governor and his taken the oath of office and allegiance, he can only be removed in accordance with the provisions of Sections 180, 188 and 189 of the 1999 Constitution. See MARWA v NYAKO (2012) LPELR-7837 (SC).

The intermediate court further held that the case of AG FEDERATION v ABUBAKAR (2007) 10 NWLR (PT 1041) 1, was the relevant authority of the Supreme Court on the issue of defection, and same ought to guide all lower courts in matters concerning defection, using the doctrine of stare decisis. The Apex Court authority is to the effect that defection from the political party on whose platform a person was elected, to another, is not one of the grounds for removing a Governor or Deputy Governor under the 1999  Constitution; and that votes belong to individual candidates, and not to political parties that sponsored them.

One major significant pronouncement in this Enugu Court of Appeal case, is that even in the case of legislator’s defection, as held in ABEGUNDE v ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR-24588 (SC), the consequential order a court shall make to ensure they suffer the consequence of their act of defection from a non-fractured party, rather than being forfeiture of their seats, is, rather, an order for a by election to be conducted. “It is not for their vacated seats to be allocated to either the political party or the runners up at the election”.
 This point to me, is quite recondite, as it has not been brought up before now for interpretation, even though it is expressly provided for in the Constitution.

Indeed, analysts have not even carefully read and studied Section 68(2) and 109(2) which have to be first activated before a legislator loses his seat. Both sections emphasise the point that the President of the Senate, Speaker of the House of Representatives, or Speaker of a House of Assembly, or even a member of any of the Houses, “shall first present evidence satisfactory to the house that any of the provisions of that sub section has become applicable in respect of that member”.  This is clear enough. The relevant House must be fully involved, concur and first activate the removal. Not a court of law!

As we await the final court of the land’s determination of an appeal that will certainly arise from this epochal pronouncement, let me again make it abundantly clear for future reference purposes, that, the Constitution of Nigeria is quite clear on these issues. No court can read into it what is not contained therein. It is trite, the legal maxim, “Expressio Unius Est Exclusio Alterius” (the express mention of one thing is the exclusion of others). See EHUWA v ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) LPELR-1056(SC); UDOU & ORS v ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD & ANOR (1993) LPELR-3308( SC); SHINKAFI & ANOR v YARI & ORS (2016) LPELR-26050 (SC).

Some may decide, in their analysis, to pontificate and to talk politics, sentiments, emotions, ethics and morality. In my humble opinion, pulpits, mosques, or even shrines, are more appropriate places for such ineffectual liberal disquisitions and moral platitudes. I speak the law, without any partisan colouration. I am not a politician and do not have the membership card of any political party. I speak the lex lata of the law (the law as it is); and not the delege ferenda (the law as you would want it to be). We were so taught, in our Jurisprudence classes.
The Old Order

Amaechi’s Case has Since Been Overruled

The 2007 case of AMAECHI v INEC (2008) LPELR – 446 (SC), is the cause of the needless ruckus, hoopla and hysteria. Many Lawyers and commentators ululate over it and appear to suffer from unnecessary nostalgia (“The Great Gatsby”, by John Fitgerald). They embrace tightly and refuse to forget the past and move on with the new trend, especially after Section 141 of the Electoral Act, 2010, as amended, and Section 285 (13) of the 4th Alteration to the Constitution had intervened to change the tide and times. In Amaechi’s Case (supra), the Supreme Court had held (now overruled by the same Apex Court):

“Now Section 221 of the 1999 Constitution provides: “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. The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. 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 in winning, but at the end of the day, it is the party that wins or loses an election. I think that the failure of Respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate, that has made them lose sight of the fact that whereas candidates may change in an election, but the parties do not. In mundane or colloquial terms, we say that a candidate has won an election in a particular constituency, but in reality and in consonance with Section 221 of the Constitution, it is his party that has won the election”.

It was on the strength of the above that the Apex Court declared Amaechi the duly elected Governor of Rivers State; and removed Chief Celestine Omehia who had not contested the election. The Supreme Court had reasoned then that the votes belonged to the political party (PDP).

After the Amaechi Judgement however, Section 141 of the Electoral Act, 2010 (as amended) and Section 285(13) of the 4th Alteration to the 1999 Constitution, have since further overruled the decision in Amaechi v INEC (supra). Section 141 of the Electoral Act 2010 (as amended) provides in unmistakable terms as follows:
“An election tribunal or court shall not declare any person a winner at an election, in which such a person did not fully participate in all stages of the election”.

The above provision has been given constitutional flavour and imprimatur, having been enacted into Section 285(13) of the Constitution. By virtue of s 285(13) thereof, “an election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election”. In effect, for a person to be declared and returned as a winner by an election tribunal or court, he must be such a person who had fully participated, as a candidate, in all the stages of the election, starting from his nomination as a candidate, to the actual general election.

The case of FALEKE v INEC (2016) 18 NWLR (PT.1543) SC is another authority that is often cited, and misused as authority by commentators. In that case, the Apex Court had dealt with Sections 179 and 181 of the Constitution, dealing with the question of when a candidate for the office of Governor of State shall deemed to have been duly elected. It also dealt with the effect of what happens when a person who has been elected as Governor dies before subscribing to the oath of office and oath of allegiance. Sections 31(1), 32(2) and 33 of the Electoral Act, bordering on the time limit for political parties to submit names of their candidates to INEC, and reasons allowed for substitution of candidates, were also dealt with. (To be continued)

THOUGHT FOR THE WEEK

“When critics sit in judgement, it is hard to tell where justice leaves off and vengeance begins”. (Chuck Jones)