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From Godwin Tsa, Abuja
On Tuesday May 8, 2022, Justice Inyang Ekwo of the Abuja division of the Federal High Court gave a declaratory judgment ordering Governor David Umahi of Ebonyi State and his deputy, Dr. Kelechi Igwe to vacate their respective offices on account of their defection from the Peoples Democratic Party(PDP) to the All Progressives Congress (APC).
In another separate judgment, the court equally sacked 16 members of the Ebonyi state House of Assembly for similar reasons.
The judgment of Justice Inyang Ekwo, which has now been subjected to the scrutiny of the Court of Appeal has raised some controversial issues in the nation’s legal jurisprudence.
In an originating summons marked FHC/ABJ/CS/920/2021, the PDP had principally urged the court to make a declaration that by defecting from the party on which they were sponsored and elected as governor and deputy governor of Ebonyi State to the APC, a political party that did not win the election, they had resigned or are deemed to have resigned from office.
The plaintiff stated that “by so doing, the defendants are deemed to have lost the majority votes scored at the election and consequently should be ordered by the court to vacate their respective offices like governor and deputy governor of Ebonyi State”.
Although Governor Umahi and his deputy had through their counsel, Chukwuma Ma-Chukwu Ume (SAN), challenged both the jurisdiction of the Federal High Court to adjudicate on the suit as well as the competence of the suit, Justice Ekwo in his judgment dismissed the objections and legal arguments canvassed therein and entered his judgment in favour of the plaintiff.
However, the judgment has raised some hard questions in the nation’s jurisprudence. For instance, is there a law that prescribes that a person voted into the office of the governor of a state would lose their seat, if they defect to another political party different from the one on whose platform they were elected during the pendency of a term?
The 1999 Constitution (as amended); and the Electoral Act 2010 (as altered), are easily the two principal legislations to guide this legal inquest. However, a thorough evaluation of both legislations shows that they lack provisions that directly answer the vexed question one way or the other.
Under the Constitution, the only circumstances wherein an elected governor can lose his or her seat, is as provided under Sections 188 and 189 thereof, that is to say, in the event of impeachment or removal from office; or in the event of permanent incapacity to discharge the duties of the office. In any of these instances, however, the Law is clear that the Deputy Governor of the State would step into the office of the governor, who it is instructive to note, would ordinarily be a member of the same political party, to further execute the party’s mandate.
The Electoral Act, on the other hand, is equally silent, and expectedly so on the consequences of defecting to a different political party by a person voted into such office, on the platform of another political party. The closest the draftsman of the legislation came on this score, is to delimit the fate of a person voted into an elective office on the platform of a political party which was however deregistered before the expiration of the mandate. Section 97 of the Act provides clearly that such a person would remain in such office until the end of the tenure.
The 1999 Constitution further made provisions proscribing defections by elected members of the National and states Assembly, except such defections are within the purview envisaged by the provisions of sections 168(1) (g); and 109(1)(g) of the 1999 Constitution.
The Supreme Court sounded clear on the above provisions when it held that any legislator who defects from their political party to another political party whilst there is no split or division in the national organ of the party on whose platform he or she emerged, would lose such Senatorial seat. According to Justice Aniagolu in GONI (supra), the mischief behind the legislation was to cushion against the “malevolent practice of cross-carpeting of politicians of yesteryears who for financial considerations or otherwise, crossed from one political party to another without qualms and without conscience”.
Whilst it must be noted that the ramifications of Sections 68(1)(g); and 109(1)(g) of the constitution is limited to the legislative arm of government, members of the public unfortunately often associate the operability of the same provisions to members of the executive arm of government.
It is against the backdrop of these false notions that defecting governors have often been threatened that they would lose their seat by their erstwhile political party.
Another leg of controversy raised by the judgment is, “is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of the 1999 Constitution?
A Senior Advocate of Nigeria(SAN), Jibrin Okutepa (SAN), answered the above question with an emphatic No.” I do not think so. I will therefore endeavor to draw our attention to the procedures for removal of governor and his deputy and the authority or institution that has jurisdiction to do so as provided in our constitution.
“There is no dispute that the Nigerian Constitution provides that there shall be a governor and a deputy governor for each state of the federation. See section 186 of the 1999 constitution. There is equally no doubt that for purposes of election to the office of the governor and deputy governor, they do so on the platforms of political parties. This very much is conceded. But after elections, declaration and swearing in of the governor and deputy governor, the constitution has set out how the duo can be removed from office, who has the powers to remove them and which court can decide if their term of office has come to an end.
“Section 188 of the 1999 Constitution deals with who can remove a governor or deputy governor from office. It is the House of Assembly after following the due processes set out in the constitution. No matter the political iniquities committed by the governor and his deputy, there is no jurisdiction in the Federal High Court to remove them from office or order their removal from office.
“There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the governor and the deputy governor were elected, their seats had become vacant and to order the conduct of election to their offices. Jurisdiction to make post election declarations and orders as made by the Federal High Court is not in our constitution. Section 251 of the 1999 constitution as amended in subsection 4 limited the jurisdiction of Federal High Court to determine whether the seat of a member of House of Representatives has become vacant or that of members of the Senate.
“It appears that the draftsman of our constitution did not contemplate that when a governor defects or his deputy, then he or she must vacate the office. If that were to be the case, the constitution would have said so. See section 68(1) (g) of the 1999 Constitution. “When there is a dispute whether the term of office of a member of House of Assembly, governor or deputy governor has become vacant or that they have ceased to hold their respective offices by whatever allegations, only the state High Court has jurisdiction to entertain such complaints. See section 272 (3) of the Constitution.
“Clearly from the reading of the entire Nigerian Constitution, it is submitted with respect that while one must celebrate the jurisprudential logic and reasoning in the judgment under review, which is thought provoking and accord with moral demands to see that our democracy is well nurtured and follow best international practices and standards, such logic and reasoning cannot be situated within any of the well known cannons of interpretations.
“The Supreme Court set the cardinal principles governing the interpretation of constitutional provisions as enunciated in the case of Rabiu vs The State (1980) 8-11 SC 130, that Courts should whenever possible and in the interest of justice lean to the broader interpretation unless there is something in the text or the rest of the constitution indicating that the narrower interpretation will best carry out the objects and purposes of the Constitution.This very much his lordship Adekeye, JSC as he then was said in the case of the Attorney General of Nasarawa State vs. Attorney General Of Plateau State(2012) LPELR-9730(SC) at 62, paras. B-C) when his lordship said Constitution must be read as a whole to determine the object of particular provisions.
“This is what the Supreme Court said: ‘it is a settled principle of interpretation that whenever a court is faced with the interpretation of a constitutional provision, the constitution must be read as a whole in determining the object of the particular provision. This requirement places a duty on the court to interpret related Sections of the constitution together. See Nafiu Rabiu v. The State (1980) 8 – 11 SC 130 at 148; (1980) 8 – 11 SC (Reprint) 85 and Bronik Motors & Anor v. Wema Bank Ltd (Supra). In Hon. Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) v. AG Federation & 2 Ors (2012) 2 SC (Pt.1) 145, this Court stated thus:- “The duty of the Court when interpreting a provision of the constitution is to read and construe together all provisions of the constitution unless there is a very clear reason that a particular provision of the constitution should not be read together. It is germane to bear it in mind the objective of the constitution in enacting the provisions contained therein. A section must be read against the background of other sections of the constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the constitution so as to give effect to it.
“Guided by the above decisions and other decisions of our superior courts of record, it is my submission that the decision of the Federal High Court in this case suffers seriously from jurisdictional fatalities and may not stand when challenged. The question of independent candidate does not arise in this case.
“Clearly, the constitution has set out how a governor and deputy can be removed from office after they had assumed duties. The law is that where the law has set out how a thing is to be done and in this case the Nigerian Constitution has set out how to remove governor and deputy, only that procedures must be followed. This much the Supreme Court has said per Garba JSC.”
Another Senior Advocate of Nigeria and human rights activists, Chief Mike Ozekhome (SAN) had in his reaction to the judgment said it cannot stand the scrutiny of the appellate courts.
“Perhaps, the Jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously. He may also not have been availed of the clear provisions of sections 180 and 188 of the 1999 Constitution”, Ozekhome submitted.
On the questions as regards the ownership of votes cast in an election, Justice Ekwo in his judgment held that” votes belonged to the political party and not an individual”.
However, in his interrogation of the judgment, Ozekhome disagree with the court.
He said: “It is not only the registered voters of a political party that cast their votes for a President, Vice President, Governor or Deputy Governor. Many non-politically partisan persons also vote; just like opposition party members who may prefer a particular candidate even though not in their party. It is therefore not correct to hold that votes scored by a candidate belong to a political party and therefore not transferable. The courts have since gone over the era of Amaechi V. INEC, where the Supreme Court had held that votes cast in an election belong to a political party. Section 141 of the Electoral Act, 2010, has altered that section, by providing that for a candidate to become governor, he must have participated at all stages of the election. This includes primaries and the general governorship election.”
Votes belong to individuals, not political party
The appellate courts have since held again and again that votes cast in an election belong to a live candidate, and not the political party which merely serves as a vehicle that enthrones candidates.
The Judge in his Judgment had agreed with the PDP which relied on sections 221, 177(c), 106(d) and 65(2)(b) of the Constitution to substantiate its argument that votes belong to the political parties; and it is impossible for candidates to exist without a political party. The case of NGIGE V. AKUNYILI (2012) 15 NWLR (PT.1323) 343 @ 357-376, which came much later overrule this position. The court held in that case:
“…that the Appellant in relying on the provision quoted above (section 211 of the Constitution), has conveniently lost sight of the underlined words which show that a political party canvasses for votes on behalf of the candidate. In other words, that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that is against the backdrop of this, that the Electoral Act (Supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election and further provides for the means of challenging the return of the candidate (and not his political party…”(Emphasis supplied).
In a more recent decision, the Court of Appeal in the case of NWANKWO & ANOR v. INEC & ORS (2019) LPELR-48862(CA) held thus:
“… It is trite that it is only a natural person that can be lawfully declared and returned as a winner of an election. The Electoral Act, 2010 (as amended) only contemplates the declaration and return of a candidate in an election and not a political party”.
The authorities cited above have, for all intents and purposes, rested the issue as to whether it is the candidate or the party that owns the votes. The party only serves as a vehicle and nothing more. The judgment is therefore liable to be upturned on appeal.
Thus, the Amaechi case position has since been overtaken by the 2010 amendment to the Electoral Act and recent decisions of the Court of Appeal and Supreme Court, which have now vested the votes on the candidate and no longer on the political party as wrongly held by Justice Ekwo. While interpreting section 141 of the Electoral Act, 2010, in CPC & ANOR v. OMBUGADU & ANOR (2013) LPELR-21007(SC), the Supreme Court held thus:
“Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms: “An election tribunal or court shall not under any circumstance declare any person winner of an election in which such a person has not fully participated in all the stages of the said election.” By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) page 227 at 296. Contrary to the decision of this court in Amaechi’s case, the implication of section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting.” Per NWALI SYLVESTER NGWUTA, JSC (Pp 51 – 51 Paras B – F).(Emphasis Supplied).
Relying on the judgment cited above, the Supreme Court held thus in the case of OZOMGBACHI v. AMADI & ORS (2018) LPELR-45152(SC):
“…I believe the Supreme Court has laid to rest the contention that it is the political party which contests and wins an election. In C.P.C. v OMBUGADU (2013) 18 NWLR (Pt. 1385), the court was categorical that individuals as candidates win election and not the political parties.” Per MARY UKAEGO PETER-ODILI, JSC (Pp. 48 – 49 Paras E – A).
In HARUNA v. APC & ORS (2019) LPELR-47777(CA), the Court of Appeal held thus amongst several others:
“In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election starting from nomination to the actual voting.” Per UGO, J.C.A. (Pp. 12-27, Paras. F-F).(Emphasis supplied).
The court further held thus:
“The implication of section 141 of the Electoral Act 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him” Per UGO, J.C.A. (Pp. 12-27, Paras. F-F). (Emphasis Supplied). 0
“I therefore most respectfully submit (as held by appellate courts) that a political party is merely a vehicle in which a candidate can ride to contest an election and nothing more. The votes belong to the candidate and not the political party. The political party ceases to have any considerable relevance or insolence over a person that has won an election and has been sworn in as a legislator, governor or president of the entire people, who are far larger than a mere political party.”
Another question bordered on whether a governor and his deputy who are covered by the immunity clause in section 308 of the 1999 Constitution, can be sued?
On this Ozekhome, said: “The case against Umahi and his Deputy were in their personal capacities as human beings who had defected from the PDP to the APC, See Tinubu v IMB Securities Plc (2001) LPELR -3248(SC), I.C.S. (Nig) Ltd v. Balton B. V. (2003) 8 NWLR (Pt.822) 223, Fabunmi v. IGP & Anor.
Consequently, no civil or criminal proceedings could ever sustain against this set of persons, whilst still holding office. Indeed, in the words of section 308(1), “no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period in office”. More significantly, “no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued”.
This was why in Global Excellence Communications Ltd & Ors v. Donald Duke (2007) LPELR – 1323 (SC), the apex court lamented that “section 308 of the Constitution confers absolute immunity on those therein mentioned, without a corresponding disability on them to the exercise of their rights to institute actions in their personal capacities in any relevant court of law for redress during their tenure of office”.
Our discussion here is about the “lex Lata” (the law as it is); and not the “delege ferenda” (the law as we would want it to be. No sentiments or lachrymal effusion here. The governor and his deputy could not have been sued at all, to be removed from office for defecting, this is not being a pre-election or post-election matter covered by the Fourth alteration to the Constitution, and which expired well over two years ago. The court made it clear in EJURA V. IDRIS & ORS (2006) LPELR -5827 (CA), where the court held:
‘The 1st Respondent, the governor of Kogi State can only be removed by a successful petition heard by an Election Petition Tribunal. Where as in the instant case, the Appellant sought to remove the governor, by an Originating Summons filed before the Federal High Court; the provisions of section 308 of the Constitution protects the governor from such a civil proceeding notwithstanding the provisions of section 21(5) of the Electoral Act. The trial Judge was right to decline jurisdiction in the light of the clear provisions of section 308 of the Constitution.” Per RHODES-VIVOUR, J.C.A (as he then was)(Pp. 15-19 paras. F). (Emphasis mine).
This was what was done in the Umahi case.
Going by the above plethora of authorities, I humbly submit that a governor already sworn in cannot be removed by the Federal High Court through an Originating Summons. It will surely be set aside on appeal. Mark my words.”
A legal practitioner in Ado-Ekiti, Iyanu Olumuagun submitted that the Judgment of Inyang Ekwo cannot stand the test of constitutionalism of appellate court scrutiny.
According to Olumuagun, “Section 211 of the 1999 constitution as amended stated that a political party canvases for votes on behalf of the candidate, the political party is an agent of the candidate. It is my view that the electoral act requires that parties do not contest, win or lose an election, they do so by the candidate they sponsored, and before a person can be elected as a governor or deputy even to the position of a lawmaker, that person must have fully participated in all the stages of election starting from nomination to the actual voting. I submit that a political party is merely a vehicle in which a candidate can ride to contest an election and nothing more.
“My humble submission is that the vote belongs to the candidate and not the political party.”
The court of appeal in the case of NWANKO & ANOR V INEC& ORS (2019) held that it is trite that it is only a natural person that can be lawfully declared and returned as a winner of an election according to Electoral Act 2010 (as amended); it is the candidate of a party that owns the vote.
The judgment that sacked Governor David Umahi and his deputy, Eric Kelechi from their office prohibits the law of freedom of Association which is a constitutional right (section 40 of 1999 constitution as amended).
In his contribution, Chairman of the Special Public Interest Development Law (SPIDEL), Dr Monday Onyekachi Ubani, said what the judge cited for removing the governor was not one of the constitutional prescriptions for removal of governors.
“The constitution specifies the ways and manner to remove a governor. What the judge cited is not one of the ways,” Ubani argued.
He said no place in the constitution did it mention removal of a governor because of defection to another party. He said lawmakers are the only category of elected officials that the constitution provides for their sack on the ground of defection.
