By Dr. Raphael Christopher
Senior Member of Enugu Bar

Straight off, before I put forward any comments, let me make myself perfectly clear and unambiguously, that I am never a member of any political party and do not have any political affinity with any political party so my comments are simply focused on the lacunae, the validity or otherwise of the above judgement of The Federal Hight Court in light of the Constitution of Nigeria and previous Supreme Court cases and why The Governor and his Deputy may succeed on appeal.

Having clarified my position and my viewpoint, let us get into the meat of this matter. We all heard the news that The Federal High Court sitting in Abuja was petitioned by the PDP on account of Chief Dave Umahi and his deputy Chief Eric Igwe defection from PDP to APC and the judgment of the Court was handed down in PDP’s favour and this has been greeted with very passionate and mixed reactions.

Many of those reactions and reactors say it is the right decision and others say it is patently wrong . Those who say it is the right decision point to the Amaechi and Celestine’s judgment ( now overtaken by provisions of the electoral Act) and the Yahaya Bello and Audu judgment and others to justify their views, plus they employ the forces of loyalty and morality in that it is not right that a party that has expended funds and resources to secure the election of their members to public office should suffer loss by the acts of the same members who dumps them, midstream, in favour of new patronages. They further say that these defections from one party to another has been a bane of our political scenery and one which they believe this judgment has gone some way to redress.

But those who say that it is the wrong decision point to the fact the constitution already provides the ways a Governor can leave office, Supreme Court’s decision in the Atiku’s case, The Tambuwal case, the Bukola Saraki’s cases, the constitution plus the matter of morality that anyone should be free to enjoy their constitutional right to freedom of association and any curbs on this right, as has been by this judgment, is not right and would be too much of an intrusion into the unfettered rights that our people enjoys.

There is a third viewpoint constituted by people who welcome the judgment as a glowing example of Judge made law – a Lord “Denningesque” (my invented word) judicial incarnation- as they posit that since there was a lacunae in the constitution, this judgment is rightly made to address that gap and does this by extending the principle in Chief Amaechi’s case to this particular case in point.

Which view is right? Which view is wrong? Which view is a question of morality? Which view is supported by The Law? Is there a lacunae?

Now, let us recall that Governor Chief Dave Umahi and his Deputy Chief Eric Kelechi Igwe were elected on the PDP platform but defected from PDP to APC in the middle of their tenure of office.

The issue here is whether a sitting Governor who for whatever reason defects from the party ie PDP which sponsored his election should lose his seat on the grounds that the electoral votes that brought the Governor to power belongs to the party and not the Governor. By the way recent moves to allow independents to contest elections is most welcome and can only enhance our democracy.

And if, this was possible, then does this operate automatically as of law or issue of interpretation of the relevant sections of the constitution?

The sole intention here is to dispassionately analyse the validity of the decision vis a vis our constitution and The Supreme Court pronouncements on similar cases and based on the result of these, it would appear that the eventual outcome would favour Governor Umahi and his Deputy Chief Igwe.

Firstly, S.186 of The Nigerian Constitution 1999 as amended provides for a governor and a deputy governor. However, the same constitution provides only several ways in which the incumbent of these offices are to be removed.

We know that the candidates for these offices will first have to secure election on the platform of which ever political party they belong to. Moreover, The Electoral Act reversing Amaechi’s case, indicates the votes belong to the voter and not to the party. Further, this matter is neither a pre-election matter or post election matter that has occurred before the assumption of office.

But once the Governor and his Deputy are elected, they are now governed by provisions of The Constitution and their removal can only be undertaken according to the constitution. The constitution states who has been given the powers to remove them and states which court can decide if their term has come to an end.

According to Section 188 of the 1999 Constitution, it is the House of Assembly. This is to be done after engaging the steps and processes as set out in the constitution.

It is not the Federal High Court so by giving a judgement on this, The Federal High Court has exceeded its jurisdiction.

Furthermore the amendment to subsection 4 of S. 251 of the 1999 constitution as amended limits the jurisdiction of Federal High Court to the determination of whether the term of office or the seat of a member of House of Representatives or Senate has ceased or has become vacant.

In this case, in this point also, the Federal High Court has exceeded its jurisdiction by its judgement in this case because the case is about Governor and Deputy Governor of a state and not a senator or House of Representatives member.

It would not be surprising if this judgement was set aside on appeal.

However, as some have said that this is an example of a lacuna in the law and therefore the principles established in cases involving Senators who had their seats declared vacant because they defected should be extended to this case as was done and so they hold this judgement is a sound example of Judge made law.

Those who say this rely on the principles of Judicial reasoning, logic and formulations and interpretation for purposes of the law being used as an instrument for social engineering and control of society.

Would The Supreme Court or Court of Appeal agree with this, at first sight seemingly attractive proposition.

I do not think so.

Why?

There is no lacunae in the law. The constitution has provided the ways a Governor and his Deputy can be removed and defection to another party is not one of these grounds and no amount of judicial scrutiny will be able to cure this defect.

Further, s308 gives the Governor and his deputy absolute immunity from all civil and criminal actions during the currency of their offices.

The Supreme Courts has consistently held that where the constitution has set out how a thing is to be done, then, that is the only way that thing is to be done. It cannot be done by any filling a non-existent lacunae by very attractive jurisprudential logic and reasoning.

The principle is that Courts should in the interest of justice read the constitution as a whole and go with the broader interpretation unless something in the text or the rest of the constitution shows that a narrower interpretation will best carry out the objects and purposes of the Constitution. You see this is The Rabiu and AG Nasarawa and AG Plateau cases.

Equally relevant is the section 308 immunity against all civil and criminal proceedings granted to a Governor and his Deputy during their tenure of office. By virtue of this provision, Governor Umahi and his Deputy Kelechi ought not have been sued in their personal capacity as that has breached the immunity provisions and protection granted by our constitution. The case of Donald Duke is very good case law on this issue of total immunity.

We have been here before.

Atiku’s case is very applicable here even though Atiku resigned and Umahi defected, the same outcome should be expected.

The Supreme Court categorically declared that the fact that Atiku resigned from PDP and joined a different political party AC was not enough to have him lose his office of the Vice Presidency.

The Tambuwal case, the Bukola Saraki’s cases all support this position.

Should then Umahi and his deputy lose their office for a similar set of facts?

No. I think not.

Some have mentioned Yahaya Bello case but with respect this is different as his was about rigging in seven local government areas and forgery against Yahaya’s deputy and the death of the chosen candidate and are all pre-election and post – election matters.

In summary, the situation is that our constitution has provided ways for a Governor and his Deputy should be removed therefore there is no lacunae. Moreover, s308 confers immunity to the sitting Governor in every civil and criminal matters therefore it is unlikely that the judgment given would be upheld on appeal.

However, the whole saga has brought into sharp focus the issue of defections and cross carpeting and why candidates seeking political office on the platform of any political party may now think twice before making any moves to defect during their tenure of office.