Senator Effiong Nelson, elected on the platform of Peoples Democratic Party (PDP) to represent Akwa Ibom South Senatorial District, defected a few days ago to the All Progressives Congress (APC). In his defection speech, the Senator observed that ‘over the past one year this party (PDP) has disintegrated because of the crisis in the party, I have decided to resign from the PDP and join the APC.’
Is the purported defection valid at law? Can the Senator retain his seat in the Senate in view of section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999, as amended? Does the leadership tussle between the Makarfi-led faction and Sheriff-led faction of the PDP amount to ‘division’ as contemplated in section 68 (1) (g) of the Constitution to justify Senator Effiong’s defection to the APC? Does section 68 (1) (g) of the Constitution contradicts the right of association in section 40 of the Constitution? Morally, how honourable is it for Senator Effiong to leave the PDP, a supposedly disintegrated party, and still wants to carry along with him the benefit (the mandate to represent his people) which he derived from the PDP?
This article shall provide answer to these questions, consider the implications of defection to Nigeria’s democracy, and enjoins the court to develop a deep aversion to defection, notwithstanding which political party an elected official defects to.
For ease of reference, section 68 (1) (g) of the Constitution is herein reproduced . Section 68 (1) (g) states:
‘A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if -
(g) being a person whose election to the House was sponsored by a 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 a merger of two or more political parties or factions by one of which he was previously sponsored.’ (Emphasis mine).
From the above-quoted section of the Constitution, it is clear that a member of the Senate or of the House of Representatives who defects from a political party that sponsored him to another political party will lose his seat, except the defection is as a result of a division in his former political party. The full session of the Supreme Court (comprising of seven justices) in the Abegunde v. O.S.H.A (2015) All FWLR (Pt. 786) P. 423 considered the said section 68 (1) (g) of the Constitution and the meaning of the word ‘division’ in the section.
The facts of the case were that Hon. Ifedayo Abegunde (the appellant), a representative of Akure North/South Federal Constituency in the House of Representatives, defected from the Labour Party to the defunct Action Congress of Nigeria (now the APC) because of an alleged division in the Ondo State Chapter of the Labour Party.
The Supreme Court, in its judgement, held that there was no division in the Labour Party to have warranted the defection of Hon. Abegunde to the ACN. Relying on the cases of Federal Electoral Commission v. Goni (1983) LPELR - 1266 (SC) and A. G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1, the court further held that it is only ‘such factionalisation, fragmentation, splintering, or ‘division’ that makes it IMPOSSIBLE OR IMPRACTICABLE for a political party to function as such will, by virtue of the proviso to section 68 (1) (g), justify a person’s defection to another party and the retention of his seat for the unexpired term in the House inspite of the defection. Otherwise,... the defector automatically loses his seat.’
It is worthy to state that though the principal question before court was whether a division in Ondo State Chapter of the Labour Party (not at the national level of the party) amounted to division as contemplated in Section 68 (1) (g), the court nevertheless went ahead to consider the nature of a division in a party that will justify defection.
In the light of the Supreme Court decision in Abegunde’s case, can it be said that the leadership tussle in the PDP amounts to a division which makes the party impossible or impracticable to function? The answer to the question is in the negative. According Kekere-Ekun, JSC, in Abegunde’s case, the mischief for which Section 68 (1) (g) seeks to cure is to punish the rampant practice of carpet crossing (defection), it follows therefore that the construction to be put on the word ‘division’ in the section should be a narrow and strict one. Thus, as was rightly held by the Supreme Court, such division must be one that makes a political party impossible or impracticable to operate. In other words, the division envisaged in the section is one that must be fundamental and affects the very existence of a political party; and merely one that involves mere disagreement on who to lead a party. The division should be such that brings a political party down on its knees, crippling the party at both the national and beaches level. This, it is submitted, has not happened to the PDP.
A political party is defined in section 229 of the Constitution to include ‘any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or of a local government council.’ A few months ago, the PDP fielded candidates for the governorship elections in Edo and Ondo states and also fielded candidates in the Senatorial District Elections in Rivers State. If the PDP were not to be functional, would it have fielded those candidates for the elections? The answer is in the negative.
Furthermore, section 222 of the Constitution provides conditions for the functioning of a political party, particularly its subsections (a) and (f) of the section. The section states:
‘No association by whatever name called shall function as a political party, unless -
The names and addresses of its national officers are registered with the Independent National Electoral Commission;
(f) The headquarters of the association is situated in the Federal Capital Territory, Abuja.’
Looking at section 222, it can be deduced that for a political party to be regarded as nonfunctional (in other words, divided), it must not be able to meet the criteria stated in the section. The PDP still meets the above criteria, notwithstanding its leadership tussle. The names and addresses of its national officers are registered at the INEC and it National Office is still headquartered in Abuja.
From the totality of the analysis made above, it is submitted that there is no division in the PDP as contemplated by the law to justify an elected official leaving the PDP to another political party. What is happening in the party is leadership disagreement and that does not affect the functionality or operation of the party. Anyone who leaves the party on the basis of purported division automatically loses his seat. Thus, the defection to APC by Senator Effiong is unconstitutional, and his seats in the Senate stands vacated by him. The option now open is for the INEC to conduct an election in the Akwa Ibom South Senatorial District.
It has been argued in some quarters that section 68 (1) (g), which restrains an elected official from defecting to another political party except there is a division in his party, derogates from the right of association in section 40 of the Constitution. This writer disagrees with the view. Under section 40, every person is entitled to associate with other persons and every person has the right to form or belong to a political party of his choice. This right to associate connotes the right to dissociate. However, section 68 (1) (g) does not derogate from section 40 because it does not stop someone from leaving his political party to belong to another. What it simply does is stopping a defector from carrying over the mandate that he gained from his former political party to another political party.
From a moral angle, it is immoral for Senator Effiong to defect to the APC and still wants to carry with him the benefit (mandate to represent) he derived from the PDP. Literally, it amounts to stealing. Every honourable politician who feels dissatisfied with his party and defects to another, should be moral enough to resign from the position he attained through his former political party. Commenting on the moral impropriety of defection, Clara Ogunbiyi, JSC, observed in Abegunde’s case that ‘the appellant (defector) from all indications wants to eat its cake and at the same time also have it. He had the benefit of the Labour Party while the goodies last and is now seeking for a greener pasture without letting go that which he has.’
Kereke-Ekun, JSC, has observed in Abegunde’s case that subsection (g) and the proviso to section 68 of the Constitution are to preserve the political public morality of the country. It follows therefore that a defector who leaves his party to another without strictly complying with subsection (g) and its proviso breaches not just the Constitution, but also the morality of the subsection.
Multi-party system promotes democracy. A formidable opposition party offers credible alternative to a ruling party in an election. On the other hand, one-party system stifles competition and government accountability, and breeds autocracy. Given the adverse effects of one-party system on democracy, defection, especially by elected officials, should be discouraged.
Politicians should be disciplined and stop jumping boat whenever their party is no longer the ruling party. If Mr. Tinubu were to leave the ACN and President Buhari were to dump the Congress for Progressives Change (CPC), we would not have had the APC as the ruling party today. Also, the Senate as a lawful entity, should stop encouraging defection. It is improper for the Senate to openly welcome a defector in its fold knowing the constitutional implication of defection. The Senate, by its conduct, is encouraging defection.
No matter the political side, no unnecessary defection should be encouraged. The PDP may be losing out today, another party stands to lose out tomorrow if this trend is not discouraged. The court has a large role to play in this situation. The court should at all times give a narrow and strict interpretation of section 68 (g) of the Constitution so as to meet the objectives and intention of the framers of the Constitution. It should also grant accelerated hearing in such matters because it is a serious issue that touches on Nigeria’s democracy. As citizens, we also have a duty to stop this trending political prostitution by recalling any defector holding elected office.
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