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The High Cost of Defection…

While the defecting Governors do not have any constitutional impediment on their way to becoming members of the APC despite being elected on the platform of the PDP, the same cannot be said of members of the National Assembly or State Houses of Assembly, who were elected on the platform of the PDP but may want to defect to the APC, writes Ferdinand Orbih SAN…
 
Last Wednesday, November 27, 2013, the National Newspapers in Nigeria came out with screaming headlines. Although these headlines related to the same topic, the different wordings of each headline was an indication of the sensitivity and the volatility of the subject matter.
 
In the Guardian, the headline was “Four Aggrieved PDP Governors Move to APC”. In the Vanguard, the headline was “Amaechi, Four Other PDP Governors, nPDP Join APC”. THISDAY Newspaper captioned its own headline as follows “In political earthquake, five PDP governors defect to APC”.
 
The defection of four or five PDP Governors to APC did not come as a surprise to keen watchers of Nigeria’s political scene. Defection has been part and parcel of Nigerian Politics dating back to the First Republic. It is a well known fact, that the first Election into the then Western Region House of Assembly was clearly won by the NCNC led by the inimitable Dr. Nnamdi Azikiwe and its allies. But to the amazement of the winners of that election, when the time came for the party with majority of members of the House to Form a government the NCNC (The Party that won the Election), suddenly found itself in the minority as a result of the cross-carpeting of many of its elected members from the NCNC to the Action Group, thus the seed of political cross-carpeting or defection or what some political analysts call political prostitution, was sown in Nigeria body polity.
 
The instability and other negative political consequences of political cross-carpeting or defection informed the wisdom behind the provision of section 68(1) (g) in the Constitution of the Federal Republic of Nigeria (As Amended). The said section which is designed to check this malaise provides as follows;
 
“A member of the Senate or of the House of Representatives 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”
We shall in the course of this article examine whether or not the above provision has achieved its aims and purposes i.e. the prevention of political cross-carpeting in Nigeria, as well as, examine the political and legal implication of the defection of the PDP Governors to the All Progressives Congress (APC).
 
The point must be made that political prostitution is undesirable in all its ramifications because it is both politically and morally wrong. The constitution recognises that fact hence section 68(1) set out above. When a politician contests an election on the platform of a particular political party, and such a politician gets elected on that basis, it is morally wrong to abandon that political party by defecting to a political party that was not even in existence at the time he contested elections. If he must resign from his political party, he should also resign from the office to which he was elected into and then seek a fresh mandate from the people. That is the only way to demonstrate moral and political rectitude and that would be democracy in action.
 
It is laughable to hear defecting Governors proclaiming that they are fighting for democracy. What democracy if one may ask? The answer is democracy of unenlightened, selfish self-interest. One of the demands of the defecting Governors is their insistence that President Goodluck Jonathan must renounce his constitutional right to seek a second term in office. Is that demand democratic; especially when it runs counter to the express provisions of the Constitution? Some of the Governors are aggrieved because they are not in control of their political party structures in their various States. Is it democratic to hand over political structures to a Governor without his going through the necessary party rules and regulations to be in control of such structures? If one may ask, what stopped the Governors from seeking redress using the procedures laid down in their party’s constitution and the courts of the land?
 
Some of the Governors have complained about lack of internal democracy within the PDP. Are they sure that the APC to which they are headed is any better? Any casual observer of the activities of political parties in Nigeria can easily see that while the APC is built around 2 or 3 leaders, the PDP is not built around anybody and that is why it is possible for the Governors to effectively carry out a rebellion within their party in the last one year, fighting their political party to a standstill without let or hindrance from any person including the President of Nigeria. No Governor or group of Governors can constitute themselves into an internal opposition in the APC. They will be expelled unceremoniously.
 
The seemingly lack of principles in the defecting Governors is apparent from their bid to use the defection as a bargaining chip within the PDP they are condemning. For instance in the Vanguard Newspaper of Thursday November the 28, it was reported that the Baraje group speaking through Ezechukwu Eze, has clarified that they are still open for reconciliation and peace moves with the Bamanga Tukur-led National Working Committee. He was also quoted to have explained that their group is yet to merge with the APC and that the Newspaper report of the merger of their group with APC was a misrepresentation. In the same Newspaper three of the Governors belonging to the Baraje Group were explaining why they left PDP. It is difficult to understand the ways of Nigerian politicians maybe because one is not a politician. One is lost in the sea of clarifications offered by Ezechukwu Eze on the one hand, and the reasons given by Governors Nyako, Ahmed and Amaechi on the other hand for leaving PDP. However, the only irresistible inference which could be drawn from their action is that they have raised the stakes deliberately to blackmail the PDP to give in to their political demands. It will be interesting to watch how the PDP and the President will handle the situation.
 
Some of the Newspaper reports on the defection of the PDP Governors to the APC also stated that the “New PDP” (nPDP), has also in the process merged with the APC.
But is there any such political party as new PDP? Legally, the plain, simple, and straight-forward answer to that question is an emphatic NO and it has to be No because of the express provisions of section 222 of the Nigerian Constitution (As Amended) 2011 which provides inter alia as follows;
 
222. No association by whatever name called shall function as a party, unless –
(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission;
(c) a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission;
 
There is no gainsaying the fact that the names and addresses of the National Officers of the so-called new PDP are not registered with INEC. Similarly, neither a copy of its constitution nor its symbol or logo is registered with INEC. That being the case, the new PDP has been masquerading as a political party with the unfortunate connivance of the Nigerian press. And I say unfortunate because, the press is not unaware of the legal battles that the new PDP has fought and lost in its unsuccessful bid to establish its legitimacy.
 
In the light of the above, we are therefore of the firm view that there is legally no new PDP that can merge with the APC. Individual members of the PDP such as the defecting Governors, who feel that the grass is greener on the APC side, may join APC in their individual capacity and no more. It may well be that the political contraction known as the new PDP is contrived to invade the clear the provisions of Section 68(1) (g) of the Constitution which provides that where a member of a House of Assembly of the Senate or of the House of Representatives whose election to the House was sponsored by a political party becomes a member of another political party before the expiration of the period for which that member of the House was elected, shall vacate his seat.
 
It will appear that those who are calling themselves would want to hide under the proviso to this section by alleging that their membership of their new political party, the APC, was as a result of a division in their former political party (the PDP). The political drama being played out by those who have constituted themselves into the so-called new PDP, and their merger, or planned merger with the APC, cannot be covered by the proviso to section 68(1) (g) in the case of members of the National Assembly or the similar proviso in section 109(1) (g) in the case of members of a house of Assembly. While the defecting Governors do not have any constitutional impediment on their way to becoming members of the APC despite being elected on the platform of the PDP, the same cannot be said of members of the National Assembly or State Houses of Assembly, who were elected on the platform of the PDP but may want to defect to the APC.
 
We are of the firm opinion that any member of the National Assembly or State House of Assembly as the case may be, in the fold of the so-called new PDP, who may want to defect to the APC would automatically lose his seat. The fact that there have been defections in the past or cross-carpeting of some members of the National Assembly from the political party under which they were elected to other Political Parties does not make it legally right. The reason why defection from one party to another continues to take place is because the political parties themselves have not been serious in getting the courts to enforce the provisions of sections 68(1) (g) and 109(1) (g) of the Constitution. This time, the stakes are higher.
 
We foresee a situation wherein the PDP would seek to bring the full weight of the afore-mentioned sections of the Constitution on any member of the National Assembly of State Houses of Assembly, elected on its platform who would want to defect to the APC.
Chief Orbih SAN is the Chairman, Midwest Lawyers Forum

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