The legality or otherwise of Matawalle’s defection

The People’s Democratic Party (PDP), according to its Spox, Kola Olagbodion, is perfecting plans to challenge the defection of Governor Bello Matawalle of Zamfara State, to the ruling All Progressives Congress (APC), in Court. After weeks of intense speculation about his political future, Bello Matawalle finally defected to the APC with a substantial part of his political structure in the State on Wednesday, June 29, 2021. His reception by at least ten Governors from the APC-fold is by far indicative of what it means for the ruling APC, which must see this as a restoration of what it lost, by other means. It is therefore understandable why the PDP is visibly irritated by this particular move, which makes it the third in what is increasingly becoming a wave, after similar defections by Matawalle’s Ebonyi and Cross River States’ counterparts.

The legal footing of the PDP’s proposed action remains shaky, but by all means interesting. To a large extent, it is founded on morality and good conscience, rather than settled legal principles. It is briefly summarized thus: since the PDP became the ultimate winner following the 2019 general election in Zamfara State (after the unprecedented legal crises that rocked the APC), it is unconscionable for a Governor under its platform to defect from the party to the opposition, whilst being no more than a trustee of the party’s mandate. It is their case that under our laws, the votes cast at an election belong to the political party, and not the candidate; as a candidate is no more than an ‘agent’ of the political party. They hope to rely on the Supreme Court’s decision in Faleke v INEC (2016) 8 NWLR (Pt. 1543)  S.C 61 which invoked this principle five years ago in Kogi State, in what would crystallize into the Yahaya Bello government in the Confluence State, today.

I imagine they would also find shelter in the Court’s earlier decision in Amaechi v INEC (2008) 5 NWLR (Pt. 1080)  227 S.C to urge that proposition. Finally, it is also their contention that to the extent that Independent Candidacy is not yet a part of our Jurisprudence, per, Andrew v INEC (2018) 9 NWLR (Pt. 1625) 420 SC, Governor Bello Matawalle cannot purport to assign the proprietary interest of the PDP in the votes it polled at the 2019 general election, to the APC; a party which in the eyes of the Law did not participate in the said election.

At face value, the contentions whet the judicial appetite. And the logic is not far-fetched. Some observers of the political scene have however questioned the moral authority of the PDP in making these claims, having been at the beneficial end of executive cross-carpeting in the recent past. They’re wont to cite the defection of Governor Samuel Ortom to the PDP in 2018, and even more recently, Governor Godwin Obaseki. But since this is intended to be a legal expose, suffice it to address the underlying legal issues irrespective of what history holds on the conduct of the feuding political parties.

The hard question is: 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? It is within this legal context that the implicated legal issues may be easily resolved.

The 1999 Constitution (as altered); and the Electoral Act 2010 (as amended), 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.

A further look at the Constitution shows that there exists a legal framework proscribing defections by elected members of the National and State Legislature, save such defection is informed by circumstances envisaged under the proviso to the law. Here, we speak of Sections 68(1)(g); and 109(1)(g) of the Constitution for Federal and State legislators respectively.

In cases such as FEDECO v GONI (1983) LPELR-1266 (SC); and ABEGUNDE V O.S.H.A (2015) LPELR-24588 (SC)- the Supreme Court has had to explore the purview of these provisions which incidentally is also contained in the 1979 Constitution; the forerunner to the 1999 Constitution.

To paraphrase the Apex Court in the referenced cases, any legislator who defects from their Political party to another Political party whilst there being 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, public commentary has unfortunately tended to associate the operability of the same provisions to members of the executive arm of Government. It is understandably 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. This is the context of the PDP’s legal threat. Assuming they finally make it to the Court, it would be interesting to know the interpretation the judiciary gives to the associated provisions of the Law since they have not been judicially tested in the context of elected members of the executive.

That said, in my earlier essay entitled, A Legal Inquest into the Recurrent themes in the Interpretation of Section 68(1)(g) of the 1999 Constitution, I argued that an interpretation to the effect that defecting members of the executive would lose their elective seat, as the PDP contends, would abide a constitutional amendment. This is because the office of the Governor is created and jealously protected by the Constitution.

Having circumscribed the limited province within which an elected Governor may lose his or her seat, the prospects of the judiciary extending that to include defections, would be far and in-between, as the duty of the judge is to interpret the law as it is. My follow-up argument would be that political parties lose their control over elected members of the executive, the moment they take the Oath of Office. It is the Oath that gives life to the Office and affords it full protection beyond the control of political parties under the Constitution. Against this backdrop, my hunch is that the Faleke v INEC; and Amaechi v INEC line of cases are most likely to be inapposite in the circumstances.

Be that as it may, one potential ugly outcome of the case if it ever gets to the Court would be that it cannot be determined to finality within the life of the Governor Bello Matawalle Administration which is set to expire by 2023. Since it cannot be commenced under the original jurisdiction of the Supreme Court, it would have to make the rounds from the State or Federal High Court, up to the Supreme Court, by which time the tenure of the Governor would have elapsed, with the ugly prospect of rendering the matter academic.

For a simple constitutional question that could be resolved by a full panel of the Supreme Court sitting as a ‘Constitutional Court’ as is the practice in some jurisdictions, that the PDP may end up with an empty victory in the unlikely event it succeeds in the Court, is yet another reason why we must rethink our Judicature Act.

Raymond Nkannebe, a legal practitioner, writes from Lagos. He tweets @RayNkah