By Sylvester Udemezue

(a response to a senior legal analyst)

(1). Under the Constitution of the Federal Republic of Nigeria, 1999, defection by a member of a legislative house (the National Assembly or the House of Assembly of a State) may be constitutional or unconstitutional. A constitutional defection is one that happens “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”. An unconstitutional defection occurs when the defection 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”. A major different between a constitutional defection and an unconstitutional defection, in effect, is that in the case of the former, the defecting lawmaker does not lose his seat in the House, unlike in the latter case which results in automatic loss of his seat, meaning that his seat automatically becomes vacant. See Section 109(1)(g) of the Constitution. It’s respectfully submitted that, as I’ve explained earlier and based on available evidence, the defection by the 27 members of the Rivers State House of Assembly is a perfect example of an unconstitutional defection by virtue of which the affected lawmakers lost their seats, and accordingly ceased to be members of the House of Assembly of Rivers State. In A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178, the Supreme Court of Nigeria (per Aderemi, JSC at page 178) stated thus:
“Members of the Senate and House of Representatives were elected by the people…. I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. *A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision…. It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant.”

The above case was followed in ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR-23683(CA) (Pp. 78-79 paras. B)(CA), where the Court of Appeal (Per MSHELIA, J.C.A) had this to say:
“Appellant has violated the provisions of Section 68(1)(g) of the 1999 Constitution. The consequence is that appellant has to mandatorily vacate his seat as member in the House of Representatives. The case of A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178 is relevant and instructive on this issue. The Apex Court per Aderemi, JSC at page 178 stated thus: “Members of the Senate and House of Representatives were elected by the people as were the President. Applying the well known principles of interpretation to the above provision of the Constitution, I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision. His Lordship further stated: -“It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant. No similar provision was made for the Vice-President or even for the President.”

(2). In his reply to my legal commentary entitled, “Rivers State: Court Pronouncement Not Necessary In Vacation Of Seat Of A Defecting Lawmaker In Nigeria”, a distinguished Bar leader, respected legal luminary and committed public legal affairs commentator who happens to be also an Attorney-General emeritus (AGE) for Rivers State, Sir Boms Worgu, left the following comment on The Law Centre (TLC), a WhatsApp platform:
“There is serious dispute that the person you call Speaker is not speaker. That 3 or 4 or 5 persons cannot sit down and elect or appoint a person speaker in a House of over 20 Persons. That disputed speaker, so enthroned, goes ahead to do what the Constitution says a speaker, properly so called, can do- making a declaration of who has lost seat by reason of defection- in the face of the subsisting challenge to his status as speaker- you now conclude, because you agree that he is speaker, (I do not, from the way he emerged) that the Court has no role to play, no need for any pronouncement as the Constitution did not say Court must make pronouncement. The Court will make pronouncement on the legality of his speakership and if found wanting, you already the consequences as to the validity of that which is claimed to have been done. Always, we must be reminding ourselves of the normativity of law as a crucial characteristic of Law.”

(3). In response to the submission of the Hon AGE (especially the aspect that suggests that “There is serious dispute that the person you call Speaker is not speaker. That 3 or 4 or 5 persons cannot sit down and elect or appoint a person speaker in a House of over 20 Persons”), I respectfully consider it necessary to make the following further observations:

(a). First, since the defecting 27 members well knew, or ought to have known the legal consequences of their said defection at a time when there was absolutely NO form of division in the political party on whose platform they were elected (PDP), one could never have reasonably expected the same defecting 27 lawmakers to be the ones to proceed and take steps to give effect to the provisions of Section 109(1)(g) of the Constitution, which had rendered their seats VACANT upon their defection. I think perhaps the 27 lawmakers had thought (unfortunately erroneously) that since they were in the majority, the minority members (that is, those who did not defect) would be incapable of validly taking steps to give effect to Section 109(1)(g), as required by Section 109(2). That’s why, perhaps, they had felt so confident in flagrantly flouting the Constitution of the Federal Republic.

(b). Second, perhaps the lawyers to the defecting lawmakers did not advert their learned minds to the operation of rules of Corporate Governance relating to Majority Rule and Minority protection/rights, especially those bothering on when the majority members are the ones committing a breach of the law and have therefore refused or are reasonably not expected to be willing to, or are legally incapable of taking necessary legal steps to rectify the situation or, as was/is the case in the Rivers State scenario, to give effect to the legal consequences of their own actions — legal consequences which would see they themselves losing their seats in the legislative house.

(c). Third, one may be right to suggest that the 27 defecting legislators having lost their seats, by virtue of Section 109(1)(g), had thenceforth lost also the right to participate in the businesses of the House.

(d). Fourth, the Constitution requires the Speaker to make a formal declaration signaling the end of the defecting lawmakers’ membership of the legislative House. However, since the Speaker and the Deputy Speaker in this instance, were among those defecting, it is not reasonably expected that the speaker or the Deputy Speaker would be willing or would be legally capable of implementing the provisions of the Section 109(2) to declare vacant his own seat and those of his fellow-traveller. In such a situation, it appears the remaining members of the House (those not affected by the defection) could take necessary steps (the only option practically and legally available to them) to give effect to the provisions of Section 109(1)(g) of the Constitution, more so, considering that the speaker and the Deputy Speaker were among the defecting lawmakers.

(e). Fifth, and with due respect, when Section 109(2) says the Speaker shall take steps to give effect to Section 109(1)(g), the Constitution envisages that the Speaker IS NOT the one defecting or is not among those defecting. As the Speaker in the present instance happened to be among the DEFAULTING/defecting lawmakers, the ball was then in the court of the non-defaulting/non-defecting lawmakers to take necessary legal steps in line with Section 109(2) of the Constitution.

(f). Sixth, please recall the necessary legal implications of the principle that nature abhors vacuum, in leadership, leadership being a continuous activity, as a result of which no one person or group of people has/have the right or power, by their actions or omissions, to hold the House of Assembly of Rivers State to ransom; there must never be any vacuum in the position of Speaker of the Rivers State House of Assembly. It therefore follows that since, upon their own voluntary, unconstitutional defection, the Speaker and the Deputy Speaker were deemed to have lost their respective seats, it’s not illegal for the non-defecting members to sit and elect a new Speaker to ensure the businesses of the House were continued in the interest of the good people of the State.

(g). Finally, on this point, it has become necessary at this juncture, to consider the necessary, legal and practical implications of the following provisions of the Nigerian Constitution:

(i). SECTION 92(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999: “There shall be a Speaker and a Deputy Speaker of a House of Assembly who shall be elected by the members of the House from among themselves”. The implication of this appears to be that there shall never be a time a State House of Assembly does not have a Speaker or a Deputy Speaker. The Office of the Speaker or of the Deputy Speaker has perpetual succession. Existence of a Speaker and a Deputy Speaker is thus mandatory, and as such, does not depend on the will or whims and caprices of any member or group of members of the House of the Assembly.

(ii). SECTION 92(1) OF THE CONSTITUTION: “The Speaker or Deputy Speaker of the House of Assembly shall vacate his office –(a) if he ceases to be a member of the House of Assembly, otherwise than by reason of the dissolution of the House”. It is respectfully submitted that the legal implication of this provision is that the Speaker or Deputy Speaker of a House of Assembly would AUTOMATICALLY cease to be the Speaker or the Deputy Speaker where he ceases to be a member of the House of Assembly. Hence, where the Speaker or Deputy Speaker of a House of Assembly unconstitutionally DEFECTS to another political party, such a Speaker or Deputy Speaker AUTOMATICALLY loses his office as the Speaker or Deputy Speaker of the affected House of Assembly. It therefore follows that, from the day the Speaker and the Deputy Speaker joined the other 25 members of the House of Assembly of Rivers State to defect to another political party in a manner contrary to Section 109(1)(g), the Speaker and the Deputy Speaker lost not only their seats in the House, but also their respective positions as Speaker and Deputy Speaker. My humble opinion, please.

(iii). SECTION 95 OF THE CONSTITUTION: “(1) At any sitting of a House of Assembly, the Speaker of that House shall preside, and in his absence the Deputy Speaker shall preside. (2) In the absence of the Speaker and Deputy Speaker of the House, such member of the House as the House may elect for a purpose shall preside”. It is humbly submitted that the implication of the above provision is that where there is no speaker or a deputy speaker to preside over the affairs of a House of Assembly, eligible members of the House are entitled to elect one of their own to preside as the Speaker of the House. If one agrees that the Speaker and the Deputy Speaker of the Rivers State House of Assembly had, upon their said defection, lost their seats and also their leadership positions, then we are entitled to agree that the remaining members of the House at that point in time (their number notwithstanding) could/can validly sit and elect anyone from among them to preside over the affairs of the House as its Speaker. Yes, the House originally had 32 members; but since the 27 members who unconstitutionally defected had thereby lost their seats from the date of their said defection, it then follows that the House as at that point had only five (5) valid members, and these five (5) members of the House were from that point entitled to sit to conduct the businesses of the House.

(iv). SECTION 96 OF THE CONSTITUTION: ”The quorum of a House of Assembly shall be one-third of all the members of the House”. With due respect, the expression “one-third of all the members” appears to mean one-third of all the valid members at any point in time. If we agree that the unconstitutional defection had rendered vacant the seats of the 27 members, then one may argue that the House thenceforth had only 5 (five) members pending when the INEC would conduct necessary bye-elections to fill the 27 vacant seats. Hence, the term “one-third of all the members” may be interpreted to mean one-third of all the 5 (five) remaining members after 27 seats had become vacant.

(v). SECTION 99 OF THE CONSTITUION: “Any person who sits or votes in a House of Assembly of a State knowing or having reasonable grounds for knowing that he is not entitled to do so commits an offence and is liable on conviction to such punishment as shall be prescribed by a Law of the House of Assembly”. It appears from this provision, that any member of a House of Assembly who, upon an unconstitutional defection has lost his seat in the House, would no longer be eligible or entitled to join in conducting the business of the House. Else, such a member may be considered to be committing a triable, punishable criminal offence.

(vi). SECTION 102 OF THE CONSITUTION: “A House of Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings”. This provision appears to be self-explanatory; in the absence of any other legal inhibition(s), NO amount or extent of vacancy in the membership of a House of Assembly shall be sufficient to legally prevent the House from sitting to transact the business of the House. Put differently, where 27 seats out of 32 seats, as is the case in the Rivers State House of Assembly, have become vacant, the remaining five (5) members of the House may validly sit to do the business of the House, including electing one of their own as the Speaker. Accordingly, the argument does not hold water, that the election of Hon Edison Ehie as the Speaker of the House by four or five members of the remaining five members of the House was not valid, lawful. And since the election of a Speaker by the remaining five members was valid, it follows that all actions of the said remaining five members, pending bye-elections to fill the vacant 27 seats, would be considered valid, lawful.

(vii). Consider this please: it was reported that immediately upon being elected Speaker by the remaining members of the House, and backed up by a High Court order which had authorised him to continue with presiding over the House as the Speaker, Hon Edison Ehie (the new Speaker) had sent a letter to the Independent National Electoral Commission (INEC) to conduct bye-elections for purposes of filling the 27 subsisting vacancies. The fact that the INEC was/is yet to conduct the said bye-elections, could not/cannot stop the remaining five members from continuing to sit to conduct the businesses of the House. Besides, it is not part of the business of the remaining five members to fill the existing 27 vacancies. All they needed to do was to notify INEC of the vacancies, and ask INEC to do the needful; that, they had done.

(4). From the foregoing, one may be right to conclude that any suggestion to the effect that “There is serious dispute that the person you call Speaker is not speaker” or that “3 or 4 persons cannot sit and elect or appoint a person speaker in a House of over 20 persons” is not valid. With due respect, the truth is that as of the time Hon Edison Ehie was elected the Speaker by 4 or 5 members, the House of Assembly of Rivers State was a House of only 5 members, not “a House of over 20 persons”. It’s therefore respectfully submitted that Hon Edison Ehie was validly elected speaker by the remaining 4 or 5 members after the seats of 27 members had become vacant, unless there are other valid grounds to question his said election, which grounds are however yet to be seen. Besides, there was an order of a competent Court of law, validating the position of Hon Edison Ehie as the speaker which court order had also given him the go-ahead and preside over the businesses of the House, pending the determination of the, then, pending lawsuit. How then, can anyone suggest he couldn’t preside over the House after the court had given him the green light?
Hon Justice Oliver Wendell Holmes, Jnr once wrote that, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law,” meaning that the law is whatever the Court says it’s, and the law is with whoever the Court is with. (See: Oliver Wendell Holmes in The Path of the Law by Oliver Wendell Holmes, Jr., 10 Harvard Law Review 457 (1897))

(5). Well, this is a continuing law discussion. And as have I earlier said, we shall continue to learn as we move on with this discussion which, I submit, is in the interest of general public, of Nigeria’s constitutional democracy and of the rule of law. Meanwhile, I thank the Hon AGE, Sir Boms Worgu, for his gracious intellectual intervention on this point, which then informed the current commentary. We hope to hear more from him and from other law writers and legal affairs commentators within and without Nigeria. The REALITY is that as I wrote in an earlier legal opinion titled “The Place For “Kick-Backs” & “Bribes” In Our Efforts To Kick Back Corruption & Kick-Start Responsible Governance In Nigeria”, published on October 23, 2018, “A major duty legal researchers and rule of law campaigners owe society in the practice of constitutional democracy for promotion and sustenance of responsible and responsive governance is to constantly offer legal opinions on issues of law to guide our leaders and institutions in the discharge of leadership responsibilities”.

(6). Do not forget that I have observed that the legal questions thrown up by the present scenario in the Rivers State House of Assembly are many and complex, and require the contribution of all well-meaning intellectuals and public law analysts towards their fruitful resolution. It is an interesting opportunity to learn and contribute at the same time. My own opinions are offered respectfully and without prejudice to whatever the courts of law may say in the end, on the matter or related scenarios.
(7). Let the discussion continue, please. Meanwhile, long live the rule of law.

Respectfully,
Sylvester Udemezue (Udems)
08039136749.
[email protected].

_