Election and Defection: Who Owns the Votes? (Part 4)

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Introduction 

The New Trend Regarding Defections (Continues)

The politics of defection or cross-carpeting takes place, not because a narcissistic individual desires to publicly masturbate his over- bloated ego. Party defection is a well thought through process carried out by politicians, just like a philosophical thinkers do. It is a conscious re-awakening of the mind, aimed at a positive struggle targeted towards the majority. It is nothing but self-preservation, the first law of nature. In Nigeria, it has all the trappings anchored on an uncivilised democratic norm of staying put in power at all cost. Today, we shall continue with the new trend of defections from an elected person’s political party, to a new one. We shall further analyse the legal implications, the constitutional consequences and judicial pronouncements on same. The case of WADA v BELLO (supra) which we started last week, was, contrary to the wrong interpretation usually accorded it, simply about substitution of a dead candidate (Audu) in an election with a new one (Bello) who eventually inherited the deceased Audu’s votes. Bello later contested and won, with the added votes of deceased Audu. Since the earlier votes belonged to Bello (upon Audu’s death), APC (an abstraction) could never have contested any further supplementary election without bringing in Bello, a human being; a natural person. It was also Bello, not his party (APC), who was found to have scored the highest number of lawful votes and also met the constitutional requirement of securing one quarter of all the votes cast in each of at least two-thirds of the LGAs in Kogi State.

In the earlier case of EJURA v IDRIS (2006) LPELR -5827 (CA), the Court of Appeal pronounced upon the venue which a sitting Governor can be removed from office based on false affidavit information. It held as follows:

“The provisions of Section 21(5) of the Electoral Act 2002 can only operate to remove an elected Governor, if the said provisions are invoked before an Election Tribunal. The 1st Respondent, the Governor of Kogi State can only be removed by a successful petition heard by an Election Petition Tribunal. Where, as in the instant case the Appellant sought to remove the Governor by an Originating Summons filed before the Federal High Court, the provisions of Section 308 of the Constitution protects the Governor from such a civil proceeding, notwithstanding the provisions of Section 21(5) of the Electoral Act. The trial Judge was right to decline jurisdiction, in the light of the clear provisions of Section 308 of the Constitution.” Per OLABODE RHODES-VIVOUR, JCA (Pp 15 – 19 Paras F – E).

The case of MARWA v NYAKO (2012) 6 NWLR (Pt 1296) 216, was direct as to the factors that can lead to a Governor vacating his seat once his tenure of office commences. The Supreme Court minced no words in declaring that: 

By the provisions of Sections 180 and 182(1)(b) of the 1999 Constitution, at the expiration of four years for a single term to a maximum of eight years certain, that is, for two terms, the Governor ceases to hold office in accordance with the Constitution. Once the tenure starts off from the date the Governor has been sworn in, the term cannot be abridged or brought to an abrupt end other than as prescribed by law and the Constitution including where the Governor dies whilst holding office, or he resigns from office or by any form of permanent incapacity, or impeachment under Sections 188 and 189 of the Constitution, or he vacates office after the expiry of the first term of four years, or automatically on completing the eight years cumulative maximum period in office, otherwise the Governor exhausts his four-year tenure for the first term and to the maximum of eight years in office without interruption, although subject to his re-election for the second term”.

The same Supreme Court was again on song as late as 2020, in ABDULRAUF ABDULKADIR MODIBBO v MUSTAPHA USMAN & ORS (2020) 3 NWLR (Pt 1712) 470 SC when it held:

“By virtue of Section 285(13) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), 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. A person to be declared and returned as a winner of an election by an election tribunal or court, must have been 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 voting…”.

Primacy of a Candidate as Against His Political Party in Nigeria’s  Electoral Dispensation

The fact that it is a candidate (and not his political party that sponsors him) that is the focus in an election, has been thus, well emphasised in a plethora of appellate court decisions, as well as the Electoral Act 2020, as amended, itself, and by its predecessor, the Electoral Act 2010, as amended.

The word “candidate” is used 224 times in the 2022 Electoral Act. The candidate is the fulcrum, the pivot and the lynchpin around which the entire electoral system revolves. The word “candidate” is mentioned (at times multiple times in one section) in the following sections of the Electoral Act: Sections 27(1); 28(8); 29(1), (2), (3), (5), (6), (7), (8); 30(1), (4); 42(1), (3); 48; 51(1); 60(1), (2); 61; 62(1); 65(1); 66; 68; 72(1), (2); 80; 84; 87(1), (2); 88(1), (2), (3), (4), (5), (6), (7), (8), (9), (10); 91(4); 92(3), (4), (5), (6), (7), (8); 93(1), (2); 94(2); 95(1), (2), (3), (4); 96(1); 97(1); 105(1), (2), (3); 106(1),(7); 107(4); 115(1); 121(1), (7); 123; 126(1); 133(1); 136(1), (3); and 139(1) & (2) of the 2022 Electoral Act.

Judicial Activism vs Judicial Rascality

All the above appellate court authorities, having made it abundantly clear that it is only a candidate, a live flesh-and-blood natural person and human being (and not the political party that sponsored him), that wins an election (and therefore owns the votes); can such a person be removed from office for merely defecting to another political party during his tenure, without following laid down constitutional provisions? Do the votes he received at the said election belong to his political party? I believe not. 

But, some purists and pro-judicial Activism commentators,  erroneously believe a court of law should simply extend and expand the frontiers of the Constitution, rewrite it and make a Governor and his Deputy removable from office when they defect. They anchor this logic on the argument that the court should extrapolate the provisions relating to Legislators in Sections 68(1)(g) and 109(1)(g) of the Constitution, to apply to Executives, notwithstanding that the Constitution  clearly made them applicable only to Legislators. A Judge is not a Knight Errant, looking out for skirmishes; trying to extend the frontiers of the law beyond what has been presented to him in court. See AYOLOGU & ORS v AGU & ORS (2001) LPELR-2036(CA) and OLEKI v AG BENDEL STATE (1986) 4 SC 222.

The intermediate court in the Ogbuoji case (supra), while commending the learned trial Judge, Njoku, J, also held that to have 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 an 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 words used in the statute. This is trite, hallowed and respected. In commending the trial Judge, the Court of Appeal held that “the learned trial Judge must be commended for rejecting this invitation which would have done incalculable damage to the rule of law and constitutionalism. Judicial activism must be guided by the rule of law, otherwise it would degenerate to judicial rascality”. 

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 prove that votes belong to political parties. No. 

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. Aside these provisions, the aforementioned cases have since been overruled and consigned to the judicial trash can of historical oblivion, to remain there as relics and monuments of the past and artefacts fit for a national museum. 

The new regime of authorities, has been anchored by the Apex and intermediate courts. They now insist that votes wholly belong to candidates (natural persons); and not to abstract political parties, which merely serve as their vehicles to transport them, and agents to canvass, garner and gather votes for the candidates. See the cases of: 

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 in the Ogbuoji case, following stare decisis, found that once a person has been elected Governor and has 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  Ogbuoji case was not novel, as the case of AG FEDERATION v ABUBAKAR (2007) 10 NWLR (PT. 1041) 1, was already an existing authority of the Supreme Court on the issue of defection; and that same ought to guide all lower courts in matters concerning defection, using the doctrine of stare decisis. The Apex Court authority in the Atiku matter, is to the effect that defection from the political party on which a person was elected, to another, is not one of the grounds for removing a Governor or Deputy Governor under the Constitution; and that to so remove them, would breach their fundamental right to freedom of association and assembly provided for in Section 40 of the 1999 Constitution. (To be continued) 

THOUGHT FOR THE WEEK

“Winning or losing of the election, is less important than strengthening the country”. (Indira Ghandi)