Last week’s judgment by Justice Ademola Adeniyi of a Federal High Court, sitting in Abuja, declaring the movement of 37 Peoples Democratic Party members in the House of Representatives to the All Progressives Congress illegal, has renewed the controversy in the defection saga. Shola Oyeyipo and Ojo M. Maduekwe write
If it were right by law and the matter brought before it for consideration, following the recent ruling delivered by Justice Ademola Adeniyi of the Federal High Court in Abuja on the defection case brought before it by the Peoples Democratic Party (PDP) concerning last yearâ€™s defection of 37 PDP House of Representatives members to the All Progressives Congress (APC), there should be 37 vacant seats in the House of Representatives at the moment. But as it stands, the judgmentâ€™s validity may have stoked a fresh controversy in the defection saga.
Delivering his judgment, Justice Adeniyi ruled that in line with the 1999 Constitution, the 37 lawmakers no longer have the legal or moral right to contribute to or vote on any motion in the House; and should therefore vacate their seats. The court further issued an order of perpetual injunction restraining the defected legislators from taking steps, actions or doing anything to effect any change in the leadership of principal officers of the House.
In her delivery, Adeniyi said the affected lawmakers cannot â€œvalidly function as members of the 1st defendant (House of Representatives), contribute to or vote on any motion and or debate in the proceedings of the 1st defendant with a view to removing or sanctioning 2nd to 10th defendants or any of the Principal Officers of the 1st defendant.â€
Adeniyi had based his ruling on the premise that the defendants were sponsored and won their election through the PDP and maintained that their tenure on the PDP platform hasnâ€™t expired and â€œthere is no division in the PDP,â€ the Justice said, adding that: â€œthe defendants are, therefore, not competent to vote or contribute to any proceedings in the House of Representatives. An order of perpetual injunction is, hereby, ordered, restraining them from altering or attempting to change the leadership of the House of Representatives.â€
The affected lawmakers are Nasiru Sule Garo, Ahmad A. Zarewa, Aliyu Sani Madaki, Bashir Baballe, Alhassan Ado Doguwa, Mannir Babba Dan-Agundi, Aminu Suleiman Goro, Abdulmumin Jibrin, Musa Ado Gezawa, Mustapha Bala Dawaki and Mukhtar Ciromawa, all from Kano.
Also affected were Sokoto lawmakers â€“ Kabiru Marafa Achida, Aminu Shagari, Isa Salihu Bashir, Abdullahi Mohâ€™d Wammako, Saâ€™adu Nabunkari, Aliyu Shehu, Shuaibu Gobir, Musa Sarkinâ€™adar, Abdullahi Balarabe Salake and Umar M. Bature. But Bature had, later in January, rejoined the PDP.
Those from Rivers State are Andrew Uchendu, Asita Honourable, Sokonte Davies, Dakuku Peterside, Mpigi Barinada, Pronen Maurice, Dawari George and Ogbonna Nwuke. Also affected are Ali Ahmad, Rafiâ€™u Ibrahim, Aiyedun Akeem, Mustapha Mashood, Aliyu Ahman Patigi and Zakari Mohammed from Kwara, as well as Yakubu Dogara (Bauchi) and Nasiru Sani Zangon Daura (Katsina).
The House was sued as the 1st defendant in the matter. Those listed as 2nd to 10th defendants were all the principal officers of the House such as the Speaker (Aminu Tambuwal), Deputy Speaker (Emeka Ihedioha), Majority Leader (Mulikat Akande-Adeola), Deputy Majority Leader (Leo Ogor), Chief Whip (Isiaka Bawa), Deputy Chief Whip (Ahmed Mutkar), Minority Leader (Femi Gbajabiamila), Minority Whip (Samsom Osagie) and Deputy Minority Leader (Sumaila Kawu). All the APC lawmakers that decamped from the PDP were also cited in the matter as the 12th to 53rd defendants.
The lawmakers and the APC have rejected the court ruling and decided to appeal the judgment. Minority Leader of the House, Gbajabiamilaâ€™s reaction seemed to capture the feelings of the affected lawmakers. â€œThe judgment is strange and will be appealed. No person can be compelled by law to stay in an association against his or her wishes,â€ said Gbajabiamila.
Arguing further, Gbajabiamila said the judgment was an affront to the right of association. â€œIt negates a fundamental right of association of every citizen that is inalienable. Section 68 of the constitution has been turned on its head and the error of the court is manifestâ€¦Section 68 was never argued in court by any of the parties. The judge gave an opinion he was never asked to give and an argument that was never canvassed before him.â€
Interim National Publicity Secretary of the APC, Lai Mohammed, also said: â€œWhat the court has said is that the House of Representatives cannot change leadership and that the affected members lacked competence to stay within the House. In any case, whatever the decision is, we will appeal the ruling. The court did not say they should resign, it simply expressed an opinion that they lacked competence.â€
The House has also filed an appeal in Abuja. In the notice of appeal filed by Mahmud Magaji (SAN), the House asked the appellate court to set aside the judgment, describing it as â€œperverseâ€. According to the House, Justice Adeniyi â€œerred in law when he granted reliefs not sought by the plaintiff.â€ They also maintained that the judgment â€œis against the weight of evidence.â€
Late last year, the ruling PDP experienced mass defection of some of its members, who cited internal crisis in the party as the basis for their defecting to the APC. It began with the partyâ€™s special convention held in Abuja on August 31, 2013, which saw seven PDP governors, along with former vice-president, Atiku Abubakar, stage a walkout on the pretext of what they termed high-handedness of the then national chairman of PDP, Alhaji Bamanga Tukur.
Adeniyiâ€™s ruling was based on another â€“ of Justice Elvon Chukwu of a Federal High Court, also in Abuja. On October 2013, Justice Chukwu had ruled that there was no division in the PDP.
â€œTherefore, it is the courtâ€™s opinion that there is no division in PDP in line with Justice Elvon Chukwuâ€™s ruling,â€ part of Justice Adeniyiâ€™s judgment read.
The Justice also based his judgment on the courtâ€™s interpretation of Section 68 (1)(g) of the 1999 Constitution which states: â€œA member of the Senate or the House of Representatives shall vacate his seat in the House of which he is a member if â€“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,â€ reads the Section.
But reacting to the above claim, Constitutional lawyer, Professor Itse Sagay, faulted the Justiceâ€™s application of that section of the Constitution. â€œI certainly do not agree with that judgment. I think it is wrong; it is not instituted in the constitution. Obviously, the judge has not availed himself of the provisions of the constitution and applied them to his actions.
â€œThe constitution does not require a lawmaker who has crossed over to another party to resign his seat, if his crossing over to the other side, is as a result of factionalisation of his party. If his party has broken into two, he can then cross over to another party and that is what happened. The PDP broke into two factions, the court did not allow one of the factions to use the name of PDP and they went and joined the APC. So, they are perfectly entitled; it is constitutional and the court is definitely wrong.â€
Following the August 31, 2013 walkout at the special convention of the PDP by the governors of Jigawa, Niger, Sokoto, Rivers, Niger, Adamawa, and Kwara States; Atiku and a former chairman of the PDP, Kawu Baraje, a faction of the party was created when the group met at the Sheu Yarâ€™Adua Centre in Abuja, where it held a press conference to announce its emergence. The 37 lawmakers were to later follow these governors to defect to the APC.
At the conference, Baraje said the defected members came together to rescue the PDP from the former national chairman, Tukur. â€œWe address you today as leaders of the PDP, who are worried by the increasing repression, restrictions of freedom of association, arbitrary suspension of members and other such violations of democratic principles by a faction of our party led by Tukur.â€
Listing several wrongs of then Tukur-led national leadership, whom according to Baraje, had the backing of the presidency, the faction said: â€œFrom now, the new leadership of the party under us will strive to build a fairer as well as a more transparent and accountable PDP that will put the interest of members and indeed all the people of Nigeria above that of one single individual.
â€œFor all the members of our great party who may have become disillusioned by the anti-democratic tendencies of the Tukur leadership, there is a new lease of life in the horizon. Itâ€™s a new day for the Peoples Democratic Party as we take over the leadership of the PDP; our immediate priority is to revive the culture of robust debate of all contending issues while providing a level-playing field for all our members.â€
Based on this, a faction of the PDP was assumed to have been created and, whose leaders went ahead to meet several times. If their association werenâ€™t recognised, security agencies under the orders of â€˜powers from above,â€™ wouldnâ€™t have disrupted their meetings at different times.
Some of the internal crises that rocked the PDP and listed by the faction included â€œthe dismissal of a former deputy national chairman, Mr. Sam Sam Jaja, by the Rivers State chapter of the party with the alleged connivance of the Tukur leadership; suspension of Governors Amaechi and Wamakko; dissolution of the Adamawa State chapter of the party,â€ amongst numerous other allegations.
It was the crises in the party that created the faction that was nicknamed newPDP. Even the current national chairman of the PDP, Adamu Muâ€™azu, while addressing a press conference was reported to have admitted to journalists that there was both a crisis and a faction in the party.
â€œThis is an election period and very critical; PDP is a reality, the only party with continuous life. We may have our internal crisis, it is the only detribalised party in Nigeria. The lost ground will be addressed; we will reconcile all the factions in PDP.â€
Contrary to Muâ€™azuâ€™s stand, the PDP under Tukur, through its National Publicity Secretary, Olisa Metuh, kept maintaining that there was neither a crisis nor a faction in the PDP.
At the Eagle Square, venue of the special convention of the PDP, Tukur, while reacting to the newPDP press conference, said, â€œThe PDP does not recognise any parallel party. Their attempt to create parallel party is illegal; unlawful, as there are no crises within the PDP whatsoever.â€ PDP maintained this position until Muâ€™azu accepted on behalf of the party that indeed, it was in crisis and factionalised.
It was also established that there was crisis and faction in the PDP when the defunct newPDP asked the Independent National Electoral Commission (INEC), through the courts, to deregister the main PDP for failing to comply with Section 222(d) of the constitution, which requires a political party to notify the electoral umpire about an alteration in its constitution.
The faction loyal to Baraje from a statement of claims which they took before the Lagos High Court, prayed the court to also declare Tukur as an illegal chairman of the PDP on account of the fact that he was not appropriately accepted as a member of the party after his expulsion by the National Executive Committee (NEC) of the PDP in 2001. But the INEC and the court would instead recognise the Tukur-led PDP as the authentic party.
Once the newPDP tried to open offices in different parts of the country including President Jonathanâ€™s home-state of Bayelsa, the war of words that ensued between the State chapters of the PDP and the new entrant was instructive. The Baraje group had taken the factional battle to the presidentâ€™s home-state, therefore, those who might have still been in denial had no doubt that a faction indeed existed.
The new faction in the state, comprised of supporters of former Governor Sylva along with others who claimed to have been marginalized by Governor Seriake Dickson, had briefed journalists in the state, demanding the suspension of the Samuel Inokoba-led State Working Committee (SWC) and also petitioned the National Working Committee of the PDP to approve the suspension of Inokoba; the Secretary, Keku Godpower; Publicity Secretary and Osom Makbere among other officials.
It is then surprising that after this deepening crisis that took up many newspaper front pages for weeks and months unending and that even saw the PDP chairman after Tukur, accepting responsibility, Justice Adeniyiâ€™s court, following Chukwuâ€™s, would rule that the party was not in any form of crisis.
The APC, still reacting to the judgment, maintained that the Justice couldnâ€™t have asked the 37 legislators to vacate their seats because the issue of whether or not they can defect was not before him.
â€œFirstly, the question whether the House of Representatives members should vacate their seats was not a question before Justice Ademola for determination. The only question for him to determine was whether the APC members, with their numerical strength at that time, had the right to change the House leadership such as the Majority Leader, Chief Whip and their deputies. So Justice Ademola had no business commenting on seats being vacated.
â€œSecondly, it is highly unprofessional and unethical for one judge to delve into a matter that is subjudice in another court. A judge should not make comments on matters being litigated in another court. The question of seats being vacated or otherwise is being heard by Justice Ahmed Mohammed in the Federal High Court in Abuja who, on March 29, 2014, said the issue was still live before him and is not ripe for judgment.â€
According to a report by a national medium, the PDP had on January 7, 2014 instituted a suit seeking to restrain members of the APC in the House from altering the composition of the House leadership. This is because when the 37 lawmakers defected to the APC, there were insinuations that they had planned to change the leadership of the House and, it was based on this that the case was instituted.
Earlier, Justice Adeniyi dismissed the contention of the lawmakers that the suit was incompetent, maintaining that â€œthe suit was rightly commenced by way of originating summon. It is competent in this court since material facts in the suit are not in disputeâ€.
He insisted that the court had the jurisdiction to adjudicate on the matter since the issue in question bordered on the interpretation of provision of Section 68 (1) (g) of the Constitution as amended.
Consequently, against the position that there was another case before a High Court to determine the matter, Adeniyi waved aside the contention of the lawmakers that the suit was an abuse of court process.
â€œThe suit is not an abuse of court process. Plaintiff in this case is not the plaintiff in the sister suit before Justice Ahmed Mohammed. Therefore, arguments of the defendants are misconceived and hereby struck out,â€ he said.
The court noted that whereas the sister matter was basically on the issue of defection, the suit in dispute bordered on alleged plot by the defected lawmakers to effect change in House leadership. More so, objection by the lawmakers that PDP lacks locus standi to meddle into issues they said border on internal affairs of the House, was also struck out.
The court held that PDP was able to adduce sufficient reasons on how change in leadership of the House would affect its interest. The court stressed that the fact that the 12th to 53rd defendants were sponsored by the PDP, conferred locus on the plaintiff.
But aside Sagay, many other lawyers have tried to give perspective to the judgment. â€œMy view is that if you are asking them to resign, it must be based on the fact that there is no dispute in their party but from what we know, it will be difficult for me to say that the court was right in reaching that decision because everybody knows that the PDP, at the time they defected, was factionalised.
â€œI think it was not right in reaching that decision. I may be wrong. Let us see how the Court of Appeal will react to that when they go on appeal,â€ said a lawyer, Bamidele Aturu.
For Constitutional lawyer, Fred Agbaje, the implication of the judgment is both political as well as constitutional. Looking at the constitutional implication, Agbaje said â€œWith the judgment of the Abuja High Court, it means the concept of separation of powers and the rule of law, are no longer operational in Nigeria. In other words, the domestic domain of the National Assembly can now be transgressed by the court. Whereas it is an age long thing that the court does not interfere in what is the business of the legislature.
â€œThe court can only interfere when such issue is justiciable – where in carrying out its functions the legislature trample on the right of others. Then the court will act as check and balance. But the way it is now, the court has arrogated power to delve into political matter and to give unsolicited legal advice to itself. A court is not a Christopher Columbus, who goes on voyage; it cannot also become Father Christmas to give out gifts. These are the constitutional implications of the judgment.
â€œSection 68 of the 1999 constitution as amended is similar to Section 107 of the 1970 constitution, which provisions provide that it is only the Senate President and the Speaker of the House of Representatives that can declare a seat of a legislator vacant.
â€œAnd the circumstances were stated: if he fails the sitting requirement. Two, under the present democratic dispensation, if he cross-carpets. But where he can prove that his party is disintegrated or merged he can defect but, when it has not been proved it is dangerous.
â€œIn the case of Alegbe vs. Oloyo, 1963, Oloyo who was the plantiff in Akoko Edo in western region was not regular in the Assembly, so Alegbe invoked the power to declare his seat vacant. Oloyo, not satisfied went to the High Court where the declaration was annulled but the Supreme Court allowed.
â€œIn the case of the 37 House of Representatives members, the High Court went in excess of its jurisdiction. In Section 68 subsection 2, it is said that â€œit shall be the power of the Senate President and the Speaker of the House of Representatives to declare a seat vacant.â€
â€œIs it the duty of the court to tell the legislature how to change its leaders? I expect that the appellate court will right the wrong because anywhere in the world, in political matter, the court must stay away. The court cannot crawl into political matters. Also, the leadership of the National Assembly doesn’t know its rights because it doesn’t consult as you are doing and that is why it makes mistakes,â€ said Agbaje.
On the other hand, legal practitioner, Afolabi Omobomi, considers the ruling as â€œa landmark judgment in the annals of democratic dispensation in Nigeria.â€
According to Omobomi, â€œthis judgment has in effect determined the legal status of the 37 House of Representatives as members who had defected from PDP to APC. It had made the seat of the honourable members vacant and had finally given judicial interpretation to the Provision of section 68(1)(g) of the Constitution of The Federal Republic of Nigeria, 1999 which makes provision for condition for the vacation of seat by the Senate and House of Representatives member.
â€œIt provides that a member of the Senate or the House of Representatives shall vacate his or her seat if; (g) being a person whose election into the House was sponsored by a party and leaves the political party that sponsored him by defecting to another party, he becomes a member of another political party before the expiration of the period for which the House was elected.
â€œThis provision of the constitution mandatorily provides that a member of House of Representatives, who defected to another political party, must automatically vacate that seat because he occupied the seat under the sponsorship of the party from which he defected. The only exception to this rule where a representative is exempted from losing his seat is when there is a division in the political party in which he was previously a member or a merger of two or more political party or a faction of the party on which platform he was previously sponsored,â€ said Omobomi.
In an interview with THISDAY, another lawyer, Wale Ogunade, hailed the judgment, saying it would bring sanity to the nationâ€™s democracy.
According to him, â€œthe judge got the law right and he interpreted it right. The legislators got elected under the PDP and if they know they want to abandon that platform, they should resign honourably. In Nigeria, people donâ€™t vote for individuals, they vote for political parties. They got elected on the platform and they did not get there as independent candidates. That is the fundamental issue.â€
But a former Chairman of the Nigerian Bar Association (NBA), Ikeja branch, Adebamigbe Omole, said the judgment violated the constitutional right to association and would be set aside at the appellate court. â€œThe constitution guarantees the right of association. You have the right to choose which party you want to belong to,â€ Omole said.
Lagos-based Lawyer, Greg Nwakogo, said “Could there be something not entirely clear about the judgement considering the proviso to section 68(g) 1999 constitution which makes it legal for the senators and House of Representatives members to become members of another political party and retain their seats if there is a division or factionalisation in their political party.
“The simple interpretation of section 68 (g) is that when a member defects from the party that sponsored him to his seat, he must vacate the seat if there is no division within the sponsor party. The question to be asked in this instance is whether there was a division/fictionalisation in the PDP and that question can only be answered by the court.
“The court has in this case said that there was no division in PDP.
Until the decision is overturned by an appellate court, that remains the position of the law. The law makes provision for a party who wishes to appeal a judgement to be able to file for stay of execution pending appeal in which case the status quo will be maintained until the appeal is heard and judgement given in respect of the appeal,” Nwakogo maintained.
Beyond the question of what steps should be taken by the lawmakers, in the interim, it is being rumoured that the judgment has turned the House apart. There are conflicting interpretation of the judgment by different lawmakers on opposing sides of PDP and APC. There are those asking the 37 lawmakers to vacate their seats first before going ahead to appeal the judgment. But the APC members in the House have vowed not to vacate their seats.
Minority Whip of the House, Samson Osagie, APC, Edo State, while briefing journalists on the judgment, said: â€œFor us in the APC, we were not surprised because in the course of the proceedings, the same judge had earlier issued a preservative order as soon as the arguments against his jurisdiction in the case were taken. This was our first apprehension at the commencement of the case.
â€œConsequently, a section of the media and indeed the public have been misled by the court ruling into believing that the said judgment has effectively terminated the tenure of office of the affected members. This is not only untrue but also a mere obiter dicta expressed by a judge, who veered off the course of the case before him in order to do the bidding of the ruling party.
According to Osagie, at best, the judgment has turned law on its head and cannot stand. â€œOur colleagues have taken steps to appeal the judgment and we are confident that justice will prevail. In the meantime, we want to assure members of the public that there is no court judgment before the House directing any member of the APC to vacate his or her seat.
â€œIn any event, Section 68 (2) of the 1999 Constitution makes it clear that satisfactory evidence must be presented to the House before any of the provisions of S.68 (1) can become applicable. At the moment, the APC in the House remains strong and focused on the need to ship of state as being piloted by the ruling party in this country today. Finally, for the avoidance of doubt, let me state unequivocally on behalf of our members that the import of yesterday (Monday) ruling was that our 37 members cannot participate in the removal of Principal Officers of the House. Nothing more, nothing less!
â€œEvery other pronouncement by the judge as to the status of our 37 members of the House were mere opinion. In any event, this judgment was given in vain and in ignorance of the House rules which governs the appointment of party leaders in the parliament. It is also an attempt by the court to meddle into the internal affairs of the parliament.
â€œThis certainly is not the import of the doctrine of judicial review. As we speak, our colleagues have appealed the vexatious ruling and we hope to get justice soon. We believe the House of Representatives will take due notice of the appeal in this case.â€
Indeed, if Adebiyi erred, the appellate court is expected to right the perceived wrongs in his submissions. But while that is still in the works, the APC is asking the Chief Justice of Nigeria (CJN), Justice Aloma Mariam Mukhtar, to urgently sanction the Justice for â€œengaging in mischief that could bring the bench into disrepute.â€
From the laymanâ€™s understanding of the case, it is presumed that if the constitutional provision places striking emphasis on faction as being promulgated by the PDP; faction, they argue, cannot exist in vacuum. In other words, if action begets reaction, then it must be a clearly established crisis situation that would precipitate a faction.
Although the PDP has continued to harp on faction as the fulcrum of its defence, it has also tacitly admitted there was a seemingly irreconcilable crisis within its ranks at some point which obviously forced Tukur out of reckoning. How that would be taken out of the context of body of debate is a task the court must perform.
But of course, except the courts insist that party factionalisation is automatic regardless of a crisis, the case of the 37 lawmakers, observers noted, is a tough one for both parties, the finality of which would be determined expressly by the interpretation adduced the controversial section of the constitution that seems to be hanging the fate of the lawmakers in the balance.