THE AFTERMATH: Is a constitutional crisis looming in Ebonyi state?

David Umahi probably didn’t see it coming. Almost three years into his second term as Ebonyi governor and currently nursing a presidential ambition, the tide has turned and he is currently in a legal battle to retain his governorship seat.

On Tuesday, a federal high court in Abuja sacked the Ebonyi governor, Eric Igwe, his deputy, and 16 other lawmakers for defecting from the Peoples Democratic Party (PDP) under which they contested the election.

Inyang Ekwo, the judge, ruled that the votes belong to the party and not the candidates.

“A party cannot win an election by poaching the candidates of the party that actually won an election. In the same vein, a person who won an election on the platform of a political party and occupied an office by virtue of that, cannot by an act of defection make a party that lost an election become the party in power,” he said.

Ekwo said although section 68(1)(g) and section 109(g) of the constitution expressly made reference to lawmakers who deferred, it does not mean that other persons who occupy elected positions should go free.

The judge also dismissed the argument that the governor and deputy governor enjoy immunity as provided in section 308 of the constitution, adding that the provision does not apply in the current situation.

SIMILAR SUIT THROWN OUT

In February 2022, a suit filed before the federal high court in Abakaliki, the Ebonyi capital, seeking Umahi’s removal on the grounds of his defection from PDP was dismissed. The suit was filed by Sunny Ogbuorji, the governorship candidate of the All Progressives Congress (APC) in the 2019 election.

Henry Njoku, the judge, said having regard to section 188 (1) of the 1999 constitution as amended, the defendant (Umahi) has not offended any provision of the constitution or the electoral act in his defection to APC.

The court further held that having regard to section 308 of the constitution, it is wrong to institute criminal or civil proceedings against the office of the governor. The court therefore dismissed the case in its entirety.

WILL PDP NEED TO CONDUCT NEW PRIMARY?

In ruling on Umahi’s defection, Ekwo had ordered INEC to receive — from the PDP — names of persons to replace Umahi and his deputy, or in the alternative, conduct fresh gubernatorial election in Ebonyi state in line with section 177 (c) of the constitution.

The Electoral Act 2022 provides for a political party presenting candidates to adopt the direct, indirect or consensus methods — which will be confirmed at a convention held by the party.

As things stand, the PDP has submitted the names of Iduma Igariwey and Fred Udogwu as replacements for Umahi and Igwe. But neither Igariwey, a member of the house of representatives, nor Odogwu participated in the 2019 primary as required by section 141 of the electoral act.

Considering that Umahi was the sole governorship aspirant at the PDP primary in 2019, there remains the question on if the opposition party has the window to nominate governorship and deputy governorship candidates — if Umahi and Igwe lose their bid to remain in office.

THE KOGI EXAMPLE

In the case of Faleke v INEC, the supreme court had dismissed the appeal which sought the removal of Yahaya Bello as Kogi governor.

James Faleke, who was Audu Abubakar’s running mate under the APC, had submitted that he was the next in line to fill the governorship seat following the latter’s death.

However, a seven-member panel of the apex court, on September 20, 2016, held that Faleke has no right to the seat because the election was inconclusive before Abubakar’s death.

Moreover, Kudirat Kekere-Ekun, supreme court justice, said Faleke neither obtained nomination form nor substantively participated in the APC governorship primary.

Affirming the APC’s decision to appoint Bello, the court held that the valid votes belong to the party and that the party was right to have nominated Bello who scored the second highest votes in the primary election.

“Nothing can be more apt as the governor had fully participated in the governorship primary election of the APC and came second after Abubakar, unlike Faleke, who did not meet that condition, but was simply selected to be a deputy governor,” she said.

“By virtue of the provisions of section 221 of the 1999 constitution, it is the political parties that actually contest elections. The governor, having become candidate of APC, and legally sponsored by the same party, can lay claim to the votes scored by the party in the November 21, 2015 poll.’’

‘PDP CAN’T REPLACE UMAHI SINCE HE WON 2019 PRIMARY UNOPPOSED’

Adeola Adedipe, a lawyer, said if the supreme court upholds the decision to remove Umahi and Igwe from office, PDP cannot nominate new candidates according to the provisions of the electoral act.

“There is no alternative person in PDP because the primary election was unopposed. By implication, PDP cannot produce anybody now. Even though the court has made that order, PDP must comply with due process — due process of selecting a candidate for a party,” Adedipe said.

“Now, since that due process is now spent, that order cannot be achieved. The only party that ought to logically take benefit of the situation, if they go to court, is the party that came second in the election.

“But the governor and his deputy that were removed were not part of the party [APC] at the initial stage. So, even if they go to court and they want to make a case to be beneficiaries of that judgment, it cannot be the governor that was removed. It has to be the person who stood the election.

“At the end of the day, they must all return to court. As it stands now, a constitutional crisis has been created in that state.”

Speaking further, Adedipe faulted the decision of the high court, adding that the issue of defection by a president or governor has already been settled by the supreme court in AG, Federation V Atiku Abubakar (2007) 10 NWLR (Pt.1041) 1, 29.

According to him, the supreme court found that “it is not illegal to defect, and the president has no power to declare the Atiku seat vacant and the court had no jurisdiction to entertain such an action”.

“That decision is extant. I am not aware of any other decision of the supreme court that has impeached the decision. By the doctrine of stare decisis, Ekwo is bound by it,” he added.

‘IT’S A PROBLEMATIC JUDGMENT’

Inibehe Effiong, another lawyer, described the court ruling as “problematic”, adding that the PDP’s decision to nominate candidates is unconstitutional.

“The list submitted by PDP cannot be acted upon while the appeal and motion for stay is pending. But I don’t even agree with the judgment of the federal high court to begin with,” he said.

“On the judgment that PDP should nominate replacement, I don’t believe that can be done constitutionally, because a political party cannot have a candidate not nominated within the timeline set by INEC. So, when we now have a case in which the party nominates candidates who didn’t even participate in the primary or even obtained forms for INEC, there is no way that person can be accepted as governor.

“The judgment is a bit problematic because PDP has the unfettered discretion to determine who to nominate to replace Umahi and his deputy. I don’t think it’s doable legally. You can’t conduct primary after election has been concluded.”

‘PROPER CONSULTATION WAS DONE’

When asked on what grounds Igariwey and Udogwu were selected, Debo Ologunagba, PDP spokesperson, said proper consultation was done.

“In the PDP, we carry out consultation in everything that we do and that was what informed the nomination of names that were forwarded to INEC for the issuance of a certificate of return. What we have done is in compliance with the court order,” he said.

Referring to the case of Faleke v INEC, Ologunagba said: “It doesn’t lie in my mouth to interpret what the court has said in one case or the other.”

“The circumstances of the case you are mentioning is different from this. And so, it would not be accurate to begin to compare with our case,” he added.

“I’m a lawyer with over two decades at the bar and I can tell you that what we have done as a party is to simply obey a court order. If anyone is dissatisfied with that, there are processes to be followed.”

Emmanuel Ukala, a senior advocate of Nigeria (SAN) who handled the PDP’s case, said since the constitution is superior to any other law, section 141 of the electoral act would have to give way to section 221 of the constitution, which empowers a political party to produce a candidate.

On his part, Mike Ozekhome, a senior advocate of Nigeria (SAN), said “this judgment cannot survive appellate scrutiny”. Citing the case of the AG, Federation v. Atiku Abubakar (2007), he added that a governor and his deputy “ought not to have been sued in the first place”.

WHO TAKES OVER IF UMAHI LOSES APPEAL?

Umahi and Igwe, on Wednesday, filed an appeal seeking an order setting aside the judgement ordering their removal from office.

According to section 191(2) of the constitution, in a situation where the seat of the governor and deputy governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal from office, the speaker of the state house of assembly shall hold the office for not more than three months.

In the current case, the speaker of Ebonyi state assembly and 15 other lawmakers were sacked by the court on Tuesday. But Ebonyi has 24 state assembly members in total and the remaining members can appoint a new speaker in the meantime.

OTHER GOVERNORS THAT RISK SACK

Already, the PDP has instituted a suit against Ben Ayade, Cross River governor, over his defection to the APC. PDP is praying a federal high court in Abuja to sack Ayade and his deputy, Ivara Esu, following their defection from the PDP.

Bello Matawalle, Zamfara governor, is also facing a suit at a federal high court in Abuja seeking his sack over defection to the APC.

Although a federal high court sitting in Gusau, Zamfara capital, struck out a suit filed by some members of the PDP against Matawalle, the suit at the Abuja court is yet to be determined.

In dismissing the suit marked FHC/GS/CS/14/2021, the court in Gusau had held that it was only an election tribunal or state house of assembly that can remove a governor from office.

Interestingly, the suit at the Abuja federal high court marked FHC/ABJ/CS/650/2021 is before Ekwo, same judge who sacked Umahi.