It is no longer news that the executive governor of Ebonyi State, David Umahi, has defected from the Peoples Democratic Party to the ruling All Progressives Congress. Amongst constitutional law experts, this gale of defection has sprouted out a form of controversy as many posited that it might earn Umahi a ticket to being impeached. But, could this really be the case in a country where defection is cheap? What does the law really say?
From a critical point of view, the defection of David Umahi may amount to a contravention of our law on defection and change of political parties. The 1999 constitution of the Federal Republic of Nigeria (as amended) makes no express provision as regards whether the defection of an elected executive would amount to an act of ‘gross misconduct’ for the purpose of impeachment. Section 188(11) of the constitution provides that “gross misconduct” means a grave violation or breach of the provisions of this constitution or a misconduct of such nature as amounts in the opinion of the House of Assembly to gross misconduct. The simple interpretation of this is that beyond cases of grave violation of the constitution, subjective cases of “misconduct”, which is a political question to be answered by the House of Assembly, can equally be a solid ground for impeachment.
Interestingly, the proprietary of an elected executive defecting from the political party that sponsored him to another one before the end of his tenure came up for determination in the celebrated case of AGF V. ABUBAKAR (2007) 10 NWLR (PT 1041) 1. In that case, the court held that the legislature is empowered to discretionally determine whether the defection of an executive would amount to a ‘gross misconduct’ using the subjective test and so can be a good ground for impeachment.
The Supreme Court held that: “it is my considered view that the term (gross misconduct) is wide enough to include the situation we find ourselves in this case where the sitting Vice President defects from the political party in whose platform he was elected to that office and joins another political party”.
Some may argue that the executive governor has the constitutional right to freedom of association, defecting from a party to another whenever he wants, just like the view expressed by the Court of Appeal in the case cited above. But, the Supreme Court already overruled that line of argument by deciding that “his right to freedom of association did not stretch that far. He was required to first resign”.
In short, there is no hard and fast rule as to whether the defection of an executive governor would invariably lead to the vacancy of his seat. However, the legislature is at the ultimate volition to invoke their impeachment power on the merit of each case and to answer whether such a defection amounts to a ‘gross misconduct’.
It is my humble but firm opinion that in exercising the discretion, the legislature should be guided by the provisions of Section 68(1)(g) of the 1999 constitution which include instances in which defection would not lead to an impeachment proceeding thus:
1. Defecting to another party if he can prove that his defection was as a result of a division within his former party. Issue of division is a question of fact.
2. Defecting as a result of a merger by the political party that sponsored him and some other political parties.
Would “personal reason” be a constitutionally acceptable ground for defection? It is for the legislature to answer. One thing is sure: the defected executive governor is ideally barred from speaking ill of or castigating the party in which he was initially elected. If he continues to talk down on the integrity of his former party, that may amount to a ‘gross misconduct’ if looked closely.
It cannot be the intention of the framers of the constitution that those elected should leave a political party that brought them into office every now and then bearing in mind the fact that people really voted for the party and not the sponsored candidate. Party politics without principle can never be the intendment of the drafters of the constitution. Actions must have consequences.
Over to the House of Assembly!
Festus Ogun, legal analyst and rights activist, writes from Lagos. @firstname.lastname@example.org