Will 25 Rivers Lawmakers Survive Constitutional Hurdles? 

With the express provisions in the 1999 Constitution and the position of the Supreme Court, many believe that the seats of the 25 members of Rivers State House of Assembly, who defected from the Peoples Democratic Party to the All Progressives Congress, last Monday are as good as vacant, Alex Enumah writes

The political crisis rocking the Rivers State House of Assembly took a new dimension last Monday when 25 out of the 31 state lawmakers defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).

The 25 lawmakers, who belong to a faction of the party loyal to the former governor of the state and now the Minister of the Federal Capital Territory (FCT), Nyesom Wike, cited alleged divisions within the PDP as reason for their defection.

The lawmakers left behind the state Governor, Siminalayi Fubara in the PDP.

Recall that the state has since late October been engulfed in political crisis after a failed attempt by the assembly to impeach Fubara. This resulted in the bombing of a section of the assembly complex. As a result, the state lawmakers have split into two factions – a faction backed by Wike and the second faction loyal to Governor Fubara.

Martin Amaewhule is the speaker of Wike’s faction while Edison Ehie, a former leader of the assembly who was removed for not supporting Fubara’s impeachment, is the speaker of the faction loyal to the governor.

The two factions have repeatedly held parallel sittings at different locations in Port Harcourt.

But on Tuesday, the 25 lawmakers suffered a major blow when following a motion ex parte filed by Ehie, the state High Court sitting in Port Harcourt, suspended them by restraining Amaewhule and Dumle Maol from parading themselves or interfering with the activities of the state assembly. It then proceeded to confirm Ehie as the interim speaker.

On Wednesday, the crisis deepened when the Speaker of the four-member assembly, Ehie, declared the seats of the 25 defected lawmakers vacant. He said the decision was in line with Section 109 (1) (g) and 2 of the 1999 Constitution as amended.

The interim speaker, who read the names of the lawmakers affected, called on the Independent National Electoral Commission (INEC) to conduct fresh elections within the time frame provided by law to fill the positions.

What made the case of Rivers State different was that before now, Nigerians were used to seeing governors defecting from one party to another with their lawmakers, which is not the same in the instant case.

But the question that is still begging for answers is: Was there really a division in the PDP both at the state and national levels to warrant the defections from the PDP to the APC? Unfortunately, many think the PDP is not factionised to justify the defection.

Two sections of the 1999 Constitution make it explicitly clear how to deal with the issue of defection as it concerns the legislature in Nigeria.

For instance, Sections 68(1) and (109(1)) state: “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.”

Sections 68(2) (109(2)) also states: “The President of the Senate, Speaker of the House of Representatives or Speakers of the states’ Houses of Assembly (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.”

Apart from these constitutional provisions, the Supreme Court had in 2016 extensively dealt with the issue of defection as it concerns the legislature when it decided the case between the Labour Party (LP) versus Ifedayo Abegunde, who was a member of the House of Representatives.

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 headed by the then 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.

Besides, the Supreme Court stressed that the “division” or “factionalisation” of the 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 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.”

For lawmakers, who frequently use crises in their ward and state chapters of their political parties as an excuse to defect, the apex court stressed that a division in a party at the state level does not entitle a legislator to abandon his party.

 It further reminded any intending lawmaker wishing to defect to be guided by 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, splintering or division that makes it impossible or impracticable for a particular party to function as such will, under the provision of Section 68(1)(g), justify a person’s defection to another party. Justice Muhammad further maintained that under 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 does not entitle a legislator to abandon the party on whose platform he or she contested and won his or her seat.

The apex court, having extensively dealt with the issue, nobody ever thought defection would be rampant in the country again but it became worse. Observers have argued that part of the reasons the malaise 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 has to stay in the assembly would have been exhausted, like in the Abegunde case.

Many, however, believe that if any presiding officer, especially at the federal and state levels, displays courage and declares the seat of a defected lawmaker vacant, it would serve as a deterrent to others.

This is why a foremost constitutional lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, declared that the 27 Rivers lawmakers were not exposed to sound legal advice.

Speaking on the issue in a live television programme, Falana said: “The legislators were not exposed to sound legal advice. Everybody should know that once the Supreme Court has made a pronouncement on a matter in any country, you’re bound to comply, and if you’re going to take any decision, you must study the judgment critically.

“Just yesterday, 27 legislators who defected from the PDP to the APC, had their seats declared vacant by the court. That’s the law; unless the Supreme Court decides to change it, that is the law in Nigeria today.

“It’s also a good development; it’s a good law; it’s a good interpretation that there should be no political prostitution in the country, because it’s tantamount to political immorality if you vote on the platform of a political party and you abandon the party; you’re advised to go and try your luck by contesting again under the new political party,” he said.