A COURT OF LAW CAN REMOVE NEITHER A GOVERNOR NOR A DEPUTY GOVERNOR FROM OFFICE FOR DEFECTING FROM HIS POLITICAL PARTY TO ANOTHER.
MIKE, THE CHIEF SAN, OFR, FCIArb, LL.M, PH.D, LL.D A. A. OZEKHOME, SAN, OFR, FCIArb, LL.M, PH.D, LL.D wrote –
I just finished reading social media posts about the Federal High Court of Abuja’s judgment delivered today by the respected Honourable Justice Inyang Ekwo.
I am convinced that the judgment, stripped of all legal and factual details, will fail to pass the constitutionalist litmus test, as well as the crucible of appellate court scrutiny. This is due to the fact that a Governor’s and his Deputy’s terms of office are governed by the Constitution.
Governor David Umahi and his Deputy, Eric Kelechi Igwe, are said to have been fired as a result of the ruling. He cited Section 221 of the Constitution, which merely prohibits certain non-political organizations from canvassing for votes or contributing to any candidate’s election expenses. The judge ordered the PDP to send the names of replacements to INEC as soon as possible so that new elections could be held. He also ordered INEC to stop recognizing Umahi and Igwe as the Governor and Deputy Governor of Ebonyi State, respectively.
The learned trial Judge also ruled that Umahi’s 393, 042 votes in the March 9, 2019 governorship election belonged to the PDP and could not be legally transferred to the APC in the event of a defection, and that there is no constitutional provision that allows voters to transfer their ballots from one party to another. In order to comply with section 177(c) of the Constitution, he has ordered INEC to hold a new election. The enforcement of this judgment, however, should not be rushed. The Governor and his Deputy have 90 days to appeal this decision under section 25(2)(a) of the Court of Appeal Act, which they have the right to do under sections 240 and 241 of the Constitution, despite the fact that the judgment is final.
APPELLATE SCRUTINY WILL NOT SURVIVE THIS JUDGMENT.
Perhaps the Jurist’s learned attention was not drawn to appellate decisions on this type of matter, which he should have meticulously followed under the doctrine of stare decisis and judicial precedent. He might not have known about the explicit provisions of sections 180 and 188 of the 1999 Constitution.
IN AN ELECTION, WHO VOTES?
Voting for a President, Vice President, Governor, or Deputy Governor is not limited to registered voters of a political party. Many people who are not politically partisan vote, just as members of the opposition party may prefer a candidate who is not in their party. As a result, it is incorrect to assert that a candidate’s votes are tied to a political party and thus cannot be transferred. Since the case of Amaechi V. INEC, where the Supreme Court ruled that votes cast in an election belong to a political party, the courts have moved on. Section 141 of the Electoral Act of 2010 amended that section by requiring a candidate to participate in all stages of the election in order to be elected Governor. This includes the governorship primaries as well as the general election.
INDIVIDUALS, NOT POLITICAL PARTIES, HAVE VOTES.
Votes cast in an election belong to a live candidate, not a political party that merely serves as a vehicle to enthrone candidates, as the appellate courts have repeatedly held.
The Judge agreed with the PDP, which relied on sections 221, 177(c), 106(d), and 65(2)(b) of the Constitution to support its argument that votes belong to political parties and that candidates cannot exist without the support of a political party. This position was overruled in the case of NGIGE V. AKUNYILI (2012) 15 NWLR (PT.1323) 343 @ 357-376, which was decided much later. “…it is my considered opinion 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,” the court said in that case. To put it another way, a political party is nothing more than a candidate’s agent for obtaining votes in an election. In light of this, it is my opinion that the Electoral Act (Supra) requires the candidate (and not the candidate’s political party) who receives the highest number of votes at an election to be declared the winner of the election, and further provides for the means of challenging the candidate’s (and not his political party) return…” (Emphasis added by the author.)
In a more recent case, NWANKWO & ANOR v. INEC & ORS (2019) LPELR-48862(CA), the Court of Appeal held: “… It is trite that only a natural person can be lawfully declared and returned as a winner of an election.” The Electoral Act of 2010 (as amended) only deals with declaring and returning a candidate in an election, not a political party.”
For all intents and purposes, the authorities cited above have settled the question of whether the votes belong to the candidate or the party. The party is merely a means of transportation. As a result, the decision is likely to be overturned on appeal.
As a result, the Amaechi case has been superseded by the 2010 amendment to the Electoral Act, as well as recent decisions of the Court of Appeal and Supreme Court, which have now vested the votes in the candidate, rather than the political party, as Justice Ekwo incorrectly held. The Supreme Court held in CPC & ANOR v. OMBUGADU & ANOR (2013) LPELR-21007(SC) that “Section 141 of the Electoral Act 2010 (as amended) provides in unmistakable terms: “An election tribunal or court shall not under any circumstances declare any person Winner of an election in which such a person has not fully participated in all stages of the said election.” The National Assembly has overturned this court’s decision in Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) page 227 at 296 under the aforementioned provision. The implication of section 141 of the Electoral Act, 2010 (as amended), contrary to this court’s decision in Amaechi’s case, 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, not the political party that sponsored him. To put it another way, parties do not directly contest, win, or lose elections; they do so through the candidates they support, and before a person can be declared elected by a tribunal or court, he or she must have fully participated in all stages of the election, from nomination to voting.” NWALI SYLVESTER NGWUTA, JSC (Pages 51–51, paragraphs B–F). (Emphasis added by the author.)
In the case of OZOMGBACHI v. AMADI & ORS (2018) LPELR-45152(SC), the Supreme Court, relying on the aforementioned judgment, held as follows: “…I believe the Supreme Court has laid to rest the contention that it is the political party that contests and wins an election.” The court stated categorically in C.P.C. v OMBUGADU (2013) 18 NWLR (Pt. 1385) that “individuals as candidates win elections, not political parties.” MARY UKAEGO PETER-ODILI, JSC (Pages 48–49, Paragraphs E–A).
“In other words, parties do not contest, win, or lose election directly; they do so through the candidates they sponsor, and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all stages of the election, starting from nomination to actual voting,” the Court of Appeal held in HARUNA v. APC & ORS (2019) LPELR-47777(CA). J.C.A. UGO (pp. 12-27, paras. F-F) (Emphasis supplied).
“The implication of section 141 of the Electoral Act 2010 (as amended) is that while a candidate must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate, not the political party that sponsored him,” the court continued. J.C.A., according to UGO (Pp. 12-27, Paras. F-F). (Emphasis added by the author.)
As a result, I respectfully submit that a political party is nothing more than a vehicle in which a candidate can ride to contest an election (as held by appellate courts). The candidate receives the votes, not the political party. A person who has won an election and been sworn in as a legislator, Governor, or President of the entire people, who are far larger than a mere political party, loses the political party’s relevance or insolence.
THE OPINION OF THE APEX COURT
More poignantly, the Supreme Court has since answered the question of whether the President and Vice President (and, by extension, Governor and Deputy Governor) can switch parties after being elected. AG, Federation v. Atiku Abubakar (2007) 10 NWLR (Pt.1041) 1, 29 was the case.
The facts of this case are that Abubakar Atiku (then Vice President) and his boss, President Olusegun Obasanjo, had a tense relationship after they were both sworn in on May 29, 2003. While still in office as Vice President, Atiku resigned from the PDP and joined the Action Congress (AC). Obasanjo was unconcerned about any of this, declaring Atiku’s seat as Vice President of the Federal Republic of Nigeria vacant right away. After being wronged, Atiku filed a lawsuit in the Court of Appeal against the Attorney General, the Inspector General of Police, and INEC.
After exchanging briefs and hearing arguments, the intermediate court unanimously ruled in favor of Atiku. Atiku could defy without losing his seat, according to the ruling. The Attorney General and others were dissatisfied and filed an appeal with the Supreme Court, which was unanimously dismissed.
The Vice President can only be removed from office if he dies, or if he is succeeded after four years in office, or if he is removed from office through impeachment proceedings under Section 188 of the 1999 Constitution. Indeed, the Supreme Court ruled in that case that section 143 of the Constitution grants the power to remove the President and Vice President (as well as the Governor and Deputy Governor by parity) (read section 188 in the case of Governor and Deputy Governor). The Supreme Court of the United States ruled as follows:
“The 1999 Constitution does not provide for the removal or removal from office of the President or Vice-President of the Federal Republic of Nigeria if he defected from the political party on whose platform he was elected to that office and joined another political party…
“It is clear from the provisions of sections 68(1)(g) and 109(1)(g) of the 1999 Constitution that the framers intended to; and indeed made punishable the defection of a member of the Senate, House of Representatives, or House of Assembly from the political party that sponsored him into another party before the expiration of the period for which the legislative house was elected by declaring the member’s seat vacant.” The Vice-President, on the other hand, is not covered in the same way. To put it another way, if the framers of the Constitution had intended for the Vice-President or the President to face the same fate as a member of the Senate or House of Assembly, they would have made it clear in the Constitution… ……
“It appears to me that the Latin maxims: expression unius personae vel rei, est exclusion alterius or inclusion unius est exclusion alterius- when translated into English mean: the express mention of one person or thing is the exclusion of another; respectively- are very much applicable here; see the cases of military governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82) 280 and Attorney-General Bendel St.
“Had the legislators been of the mind that the punishment or consequence of political cross-carpeting should be applicable to the President or Vice-President, as they have done in respect of a member of the Senate or of the House of Representatives or even a member of the House of Representatives or even a member of the House of Assembly in the aforesaid provisions of sections 68(1)(g) and 109(1)(g), they would have stipulated same in an unmistakable
“It is unconstitutional to deny a citizen of Nigeria the right to opt out of any political party, or the right to join or belong to any political party, trade union, or other association for the protection of his interests,” the Supreme Court continued, “provided that the political party is recognized by the Independent National Electoral Commission.” The fact that the political party to which the 1st respondent defected was not recognized by the Independent National Electoral Commission was not demonstrated by credible evidence in this case. In this case, the first respondent should not be punished for joining a political party.”
“The first respondent is accused of defecting or cross-carpeting to a different political party.” Although defection or cross-campaigning to another party or abandoning the original party that sponsored one for election to a constitutionally created office, or, in a similar vein, condemning or criticizing that party or its members who hold constitutionally created offices by virtue of the same election, is painful, unconscionable, and immoral, it is not illegal. I see no reason to disagree with the lower court’s interpretation of Section 40 of the Federal Republic of Nigeria’s 1999 Constitution, Chapter IV, which guarantees a citizen of this country freedom of association.” (I’ve highlighted mine for emphasis.)
ISN’T IT POSSIBLE THAT THE GOVERNOR AND HIS DEPUTY WERE SUED IN THE FIRST PLACE?
Section 308 of the Constitution, which grants absolute immunity to the President, Vice President, Governor, and Deputy Governor in all civil and criminal proceedings, will be another bump in the road for the current judgment. Only section 308(2) allows proceedings against this group of people when they are sued solely in their official capacity or as a nominal party.
The case against Umahi and his Deputy was brought in their individual capacities as people who had defected from the PDP to the APC. 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 (2001) LPELR -3248(SC).
As a result, no civil or criminal proceedings could ever be brought against this group of people while they were still in office. “No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period in office,” says section 308(1). “No process of any court requiring or compelling the appearance of a person to whom this section applies shall be applied for or issued,” says the statute.
This is why, in Global Excellence Communications Ltd & Ors v. Donald Duke (2007) LPELR – 1323 (SC), the Supreme Court bemoaned the fact that “section 308 of the Constitution confers absolute immunity on those therein mentioned, without a corresponding disability on them to institute actions in their personal capacities in any relevant court of law for redress during their tenure of office.”
It is the “lex Lata” (the law as it is) that we are discussing here, not the “delege ferenda” (the law as we would like it to be). There are no sentiments or lachrymal effusions to be found here. Because this was not a pre-election or post-election matter covered by the Fourth Amendment to the Constitution, which expired well over two years ago, the Governor and his Deputy could not have been sued and removed from office for defecting. In EJURA V. IDRIS & ORS (2006) LPELR -5827 (CA), the court stated unequivocally:
“Only a successful petition heard by an Election Petition Tribunal can remove the 1st Respondent, the Governor of Kogi State.” Where, as in this case, the Appellant sought to remove the Governor through an Originating Summons filed before the Federal High Court, the Governor is protected by section 308 of the Constitution, despite the provisions of section 21(5) of the Electoral Act. In light of the clear provisions of Section 308 of the Constitution, the trial judge was correct in declining jurisdiction.” According to RHODES-VIVOUR, J.C.A. (as he was at the time) (Pp. 15-19 paras. F). (Italics mine.)
This is exactly what happened in the Umahi case.
Based on the aforementioned body of precedent, I respectfully submit that a Governor who has already been sworn in cannot be removed by the Federal High Court via an Originating Summons. It will almost certainly be overturned on appeal. Take note of what I’m saying.
