By Ezekiel N. Nworie

The talk rocking the streets of Ebonyi State, Nigeria and Dispora is the defection of the Ebonyi State Governor, who was elected under the umbrella of the Peoples’ Democratic Party (PDP) to All Progressive Congress (APC) .

A Governor just like every other person has the right to join or to belong to any political party of his choice as this claim has some constitutional backings. The right to associate freely is a constitutional right, and it is immutable to the extent of its immutability. By section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), every citizen of Nigeria has equal right to join or belong to any political party of his choice and the Governor of Ebonyi state, His Excellency, Engr. David Nweze Umahi by virtue of being a Nigerian citizen is entitled to the above constitutional and inalienable right. His being the Governor does not derogate his right of association. The right to freedom of association is never an absolute right as it is derogated by section 45 of the Constitution of Federal Republic of Nigeria 1999, as amended.

Consequently, in the case of Governors of States, there is no existing law in Nigeria derogating their rights to defect from the party under which they were elected. The law is an axe, that is, the law remains the law until amended or abrogated; notwithstanding how unreasonable it may look to some people .

Whether the seat of a Governor can be declared vacant in view of the fact that he decamped from the political party under which he was elected?

I respectfully answer in the negative. Section 176 of the Constitution of the Federal Republic of Nigeria provides for the position of Governor of a State. And Section 177 of the Constitution of the Federal Republic of Nigeria, 1999, provides for the qualification which among other things is: if he is a member of a political party and sponsored by the political party. it is not provided in any section that he must remain in that political party to retain his seat. Therefore, he can defect after being elected and still retain his/her seat.

In the case of Atiku Abubakar v A.G. Federation & ors(2007)3 NWLR (pt.1022) 601. The supreme court held that the defection of the vice-president to Action Congress does not render his seat vacant.

The provisions of the Constitution is clear and unambiguous as to when the tenure of a Governor of a state could be said to have elapsed. see section 180 CFRN. The Constitution is also clear as to the procedure to follow in removing a seating Governor. See section 188 & 189 CFRN as otherwise will amount to nullity and have no legal effect whatsoever.

To this end, I therefore humbly submit that the defection of His Excellency Engr. David Nweze Umahi is in tandem with the Constitution and his office remains valid until otherwise.

What is the legal stance of any appointee of His Excellency Engr. David Nweze Umahi who refuses to decamp with him?

The law is trite and settled that we have three types of contract of employment, to wit (1) contract of master-servant or contract of personal service (2) contract of employment at the pleasure of the employer.(3) contract of employment with statutory flavour. See the case of Seven-up Bottling Company plc v Engr. Adedayo Ajayi (2007) LPELR- CA/B/336/2005. The fact that a statute mentions the position of employment does not make it a contract with a statutory flavour. It is right to state here that, the contract of employment between His Excellency and some of his appointees are one at the pleasure of the employer; which means the employer can determine it at any time without giving any notice or recourse to any laid down procedure and the employee cannot legally do anything because the court which could have been his final resort is bereft of power to hear and entertain such matter. In section 96(1) CFRN, The Governor is empowered to appoint any person as a special adviser to assist him in the performance of his function. Under section 96(3) it reads: any appointment made pursuant to the provisions of this section shall be at the pleasure of the Governor. Also in section 208 CFRN, the Governor Is also empowered to appoint a person into the office of secretary to the Government of the State and any office on the personal staff of the Governor. Under section 208(5) CFRN the holder of either of two appointments holds at the pleasure of the Governor. In the case of A. G. Rivers State v A.G. Akwa Ibom State & anr. (2011) (pt. 579) @ 1o23 , the Supreme Court per Muhammed JSC held that the holder of the office of the Attorney General of the Federation or of a State holds at the pleasure of the President or Governor respectively. In view of the above, if His Excellency, decides to make it a condition precedent that for any of his appointees to retain his appointment he must defect with him; the appointee is only with alternative to wit: to decamp with him and retain his appointment or be a man of honour and integrity by resigning honourably. I know under morality, it may be wrong for His Excellency to make such condition precedent but that is the position of the law. And the court which is the last hope of the common man cannot intervene because its hands are tied.

Whether the Deputy-Governor’s office can be declared vacant by the Governor or anybody else on the ground that he refuses to decamp with the Governor to All Progressive Congress (APC)?

On the above issue, I answer in the negative. The office of the Deputy-Governor is provided in section 186 CFRN. section 187 CFRN reads:

(1) in any election to which the foregoing provisions of this part of this chapter relate, the candidate for the offices of Governor of a state shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor who is to occupy the office of the Deputy-Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy-Governor. If the candidate who nominated him is duly elected as a Governor in accordance with the said provision

The provision of the part of this chapter relating to qualification for electing tenure of office, disqualification, declaration of asset and liability and oath of governance shall apply in relation to the office of the Deputy Governor as of reference to the Governor.
In view of the above, the Governor and the Deputy–Governor hold a joint ticket. The Constitution even makes it mandatory for a prospective Governor to have running mate before being duly qualified for Governorship election. A prospective Governor can only drop his nominated running mate before the election but must be in accordance with the Electoral Act. Once the election has been conducted and they are both declared winner they are deemed elected jointly and none can singlehandedly remove either without recourse to the constitutional means as contained in section 180, 188 and 189 CFRN 1999 (as amended). Just as a political party cannot remove a Governor from office after his election, notwithstanding the fact that he was nominated by it and his election sponsored by it, the same way a Governor cannot remove a Deputy-Governor after their election and they emerge winner. The constitution deems both of them validly elected to the two offices jointly. The supreme Court has laid credence to the above position of the law in the case of Atiku Abubakar V AG of the Federation and ors (supra) when it was called upon to interpret section 135, 142, 143 , 144 , 146 and 308 CFRN 1999( as amended) which is in pari materia with relevant sections relating to Governor and Deputy-Governor mutandis mutadis (with little modification). In the above case the president declared the office of the vice president vacant by reason that he defected to Action Congress of Nigeria (ACN) an opposition party. The supreme court held that “the presidential candidate who nominates his associate or colleague or companion was entitled to drop his running mate at any stage before the election, subject of course, to the relevant provisions of the Electoral Act for any reason. And that after the election and they were jointly declared elected upon one becoming president and the other vice-president the former loses his discretion to remove the latter at will. His removal is now subject to other provisions of the Constitution such as section 143 or 144. Following from the above legal argument, a Governor lacks the legal power to remove a Deputy-Governor on whatever reason without recourse to the means provided in the ConstituConstitution. Hence, the act of a Deputy-Governor decamping with a Governor is a matter of choice but not under compulsion. I therefore, respectfully submit, that a Deputy-Governor is not under compulsion or duty-bound to decamp with the Governor in all circumstances except where, it is for the interest of the Deputy-Governor in any other thing other than to secure his incumbent position; since politics is a game of interest.

The constitutionality or otherwise of an elected House member to defect to another political party other than the one he was when elected during the subsistence of his tenure

According to J. J. Rousseau, man is born free but everywhere he goes he is in chain. The right to freedom of association cum right to belong to any political party of one’s choice is not an absolute one as it can be limited by any law reasonably made in a democratic society or by the Constitution itself. See section 45 CFRN 1999 (as amended).

The law is trite and settled that an elected House member cannot within the subsistence of his tenure in the House decamped to another political party other than the one he was when elected unless there is a faction, division, and merger and among others in his political party. Any House member who decamps without those conditions taking place in his political party will stand to lose his seat in the House.

Section 68(1)CFRN 1999 (as amended) provides: A member of the Senate or House of Representatives shall vacate his seat in the House of which he is a member if –

68(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. The above provisions are in pari materia with section 109 (1)(g)CFRN 1999(as amended) for the State House of Assembly.

The forgoing provisions have been judicially recognized in the case of Hon. Ifedayo Sunday Agbegunde v the Ondo State House of Assembly & 11 ors (2015)LCN/4361/SC. Wherein the appellant who was elected into Ondo State House of Assembly to represent the people of Akure North/South Federal Constituency under the umbrella of Labour Party (LP) defected to Action Congress of Nigeria (ACN) merely because of faction in Labour party in Ondo State. The supreme court held that the intention of the law makers are to punish defectors. That a member of political party in the House who leaves his political party and join another one without coming within the exception provided in the provisio to section 68(g) CFRN will lose his position in the House. The Supreme Court referred to the case of FEDECO V Mohammed Goni (1983) LPELR-1266/SC, as a locus classicus of the division envisaged by section 68(1)(g) of the Constitution.

To this end, the Peoples’ Democratic Party crises/faction within Ebonyi State cannot avail any member of the House who decides to defect to any other political party while still serving as House member; otherwise he may risk losing his seat in the State’s House .

Therefore, The House members in Ebonyi State and other States are unprotected by the Constitution in case of defection unlike the Governor who is constitutionally protected; unless such a House member can establish division in Peoples’ Democratic Party at the national level to avail himself.

Conclusion:

The laws as stated above are clear and unambiguous. Let’s read and argue legally and act legally as well.

God bless Ebonyi State!!

God bless the Federal Republic of Nigeria!!

Ezekiel N. Nworie, 400 level student of Law at Ebonyi State University, Abakaliki, Nigeria.

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