WHY DEFECTED PDP LAW MAKERS MUST VACATE THEIR SEATS AT THE HOUSE OF REPS: THE LEGAL INGRIDIENT OF JUSTICE ADEMOLA’S VERDICT.

ByDr. Fred Latimore Oghenesivbe

The verdict of the Federal High Court by Justice Adeniyi  Ademola  is consistent with section 68 (1)(g) of the 1999 constitution of the Federal  Republic of Nigeria, as amended, and as the supreme document of Law and of the rule of Law in Nigeria, it is the law that, every other law or laws inconsistent with that section of the constitution must necessarily become “null and void” to the extent of its inconsistency.

For legal clarity and to set the records straight, the section requires that an elected member sponsored by a political party “shall” vacate his/her seat upon defection to another political party if defection is made before the expiration of the House tenure, and in the instant case, the House tenure shall expire on May 29, 2015.  The section provides that; 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 “being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected”. The second leg of this provision says; “provided that this 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 of a merger of two or more political parties or factions by one of which he was previously sponsored”. (Emphasis supplied).

The legal purport of the above constitutional provision is to the effect that (1) a House member can only defect if there is a major division in the political party that sponsored him/her for the election for which he/she became a member of the House, or (2) that if there existed two factions within the party as at the time the member was elected and one of the factions sponsored the  election of the member for which he/she  became a member of the House (if that is possible) or (3) upon the merger of the political party (that  sponsored the member for election for which he became a member of the House) with another political party when the tenure of the House is yet to expire.

In the instant case, there were no two factions in the Peoples’ Democratic Party (PDP) as at the time the defected members were elected to the House of Representatives in 2011, which they can rely upon at the appeal. They have to show that the faction that left the PDP to join the APC was the exact faction that sponsored their election for which they were elected to the House.  Secondly, there was no political leadership crisis in the PDP as at the time defection occurred, the party was stable with its executives in place, and the fact that some members of the party made efforts to register another political party with similar nomenclature (The New PDP), does not satisfy the constitutional requirement for party division but merely the ambition of some selected few within and outside the party who wanted to register a new political party. Their request to register the new party was turned down by INEC for the simple fact that the name in question was similar to that of the ruling PDP.

Thirdly, the PDP did not at any material time intend or proposed and/or considered a merger with another political party. This partly informed the basis of an earlier court decision by Justice Evoh Chukwu, which rightly declared that there was no division in the ruling PDP. There is no record anywhere that Justice Evoh’s ruling was challenged in a competent superior court of justice by either party to the matter. Those who wanted to register the New PDP later joined the APC as widely reported in the media. The three legs for which defection could take place are obviously absent and therefore the legal intentions of Section 68 (1)(g) of the constitution is clear and cannot be in conflict with the ruling of Justice Ademola.

The words “shall vacate” as stipulated in this provision is to the effect that the affected members must cease to occupy their positions in the House henceforth, Period. The constitution says “shall vacate” and not “may vacate”. It therefore becomes a legal and constitutional truism that no options are available for the affected House members in this matter other than to return to the PDP immediately or vacate their exalted positions at the National Assembly. Good enough, the party national chairman, Alhaji Adamu Mu’azu has offered all defected members another golden opportunity to return before the party’s next convention. The word “Shall” is the same as “Must”, and when a legal order is a must, it remains so until that section of the constitution is either amended or a new constitution replaces the present one. Until that happens, the word “shall” must be obeyed or complied with by those affected by the court judgment.

The defection of Hon. Bamidele Opeyemi, in the House of Representatives from the defunct Action Congress of Nigeria (ACN) to the Labour Party (LP), is perfect and legally consistent with section 68 (1)(g) of the constitution under review. The ACN merger with two other political parties to become APC automatically provided the moral and constitutional grounds for any member of the defunct ACN, CPC and ANPP parties to either remain and become a member of the new APC party or opt out to become a member of another political party entirely while retaining his/her seat and recognition in the House.  Except the defected PDP members of the House have cause to show by means of judicial precedent or any other valid references laced with superior legal arguments pointing to show that their defection complied with all known and existing constitutional or other legal requirements, the appeal will certainly be a futile legal exercise and a waste of huge personal, group or public funds.

This provision in the constitution cannot be misinterpreted by using any political innuendo or through a press conference or power of legal oratory.  It is obvious that those affected by the court judgment may fail in their appeal if the strict legal interpretation of this section of the constitution is applied, and I am pretty sure that the superior courts shall do justice to the appeal. This is one section of the constitution that is very plain and direct to the point, not complicated and do not require the services of a Constitutional Law Professor to explain its valid legal ingredients. Therefore, what the court has done is to “call the spade, a spade” as enshrined in the constitution. In my considered legal opinion, the ruling was never influenced by the ruling PDP as alleged by Hon. Osagie of the APC during his press conference at the National Assembly,  widely reported by the Nigerian mass media.

The legal opinion put forward by Hon. Osagie (a Lawyer) that the order of the court amounted to an “orbiter dicta” (personal opinion) of the judge is far from the truth. He should be prosecuted for casting damaging aspersions at the Judge. He alleged that Justice Ademola acted the script given to him by the ruling PDP. The Legal Practitioners Disciplinary Committee or any other body concerned should look into the validity or other of this grave allegation which may have caused Justice Ademola invaluable moral and mental frustrations. His image has been defamed as a result of the unsubstantiated allegation.

To free the Judge from mental, moral and psychological torture occasioned by the political rascality of the accuser, Hon. Osagie must be made to prove his allegation beyond reasonable doubt because his reckless utterances may have ultimately fractured the professional reputation of the Judge.  The allegation was made outside the hallowed Chambers of the House when not in session and therefore not protected by House immunity.  It must be stated again and again, that the defection of the thirty-seven former PDP members is inconsistent with the provisions of section 68(1)(g) of the 1999 constitution as amended, and as such the affected members of the House  should honourably vacate their seats, except as I earlier mentioned,  the APC or the affected members of the House have other superior judicial precedents that would legally puncture Justice Ademola’s ruling.

The Black Law Dictionary and Dictionary.com defined the word “Vacate” as intended by section 68 (1)(g) of the constitution to mean “give up possession or occupancy of or to give up or relinquish an office, position, et al. To “Vacate” in the instant case also mean “to leave a seat, to make something null and void, to move, leave a place uninhabitable or to leave a job position, et al. These definitions at law are consistent with Justice Ademola’s order that the affected members of the former PDP who defected to the APC should honourably resign their positions and quit the national assembly. This is not the Judge “orbiter dicta” as claimed by Hon. Osagie during his press conference.

The Judge rightly and correctly used the wordings contained in Section 68 (1)(g) of the constitution, as amended. Therefore, the words “shall vacate” as used in this section did not give room for any option, as to whether the members should remain in the House or quit. The court order is the direct position of the law in relation to their defection for the fact that the House tenure is yet to expire, no division occurred in PDP and the party did not merged with another political party. These are the legal reasons why the affected members must vacate their seats.

In conclusion therefore, Justice Ademola was right in law to have ordered the affected thirty-seven members to honourably resign their positions haven breached that section of the constitution, after all they are honourable people who are expected to conduct themselves as such.  They must therefore   quit the stage at the national assembly in compliance with the provision of section 68 (1)(g) of the 1999 constitution, as amended. After all, to remain a member of the House is neither by force nor by inheritance. It is a mandate freely given by their constituents and if that mandate is fractured by the actions and inactions of the beneficiary, it follows that the law must be invoked or applied to do justice or to correct any defect or lacuna created by the offender of the constitutional provision. The only option left for them under the prevailing circumstances is to go through another valid party and electioneering processes to re-contest their individual seat in a bye-election to be conducted by the Independent National Electoral Commission (INEC) at a later date.

And if the affected House members actually got the mandate of their respective constituents to defect from PDP to APC, it follows that their supporters also defected with them which is to say that winning the bye-election will be an easy landslide victories for them. But if on the other hand their supporters were not carried along in the defection saga, then of course they should accept the electioneering consequences of their actions and inactions. This is a case that is of paramount importance and interest to students and practitioners of constitutional law and jurisprudence in Nigeria and elsewhere in the world. As for the appeal, we shall keep our fingers crossed and watch the legal tussle and its subsequent outcome in the superior courts. In the meantime, the affected thirty-seven members of the House of Representatives should vacate their seats pending the final determination of the matter by the appellate courts.

Dr. Fred Latimore Oghenesivbe PhD , also holds a Bachelors of Law Degree (LL.B Hons) from the University of Lagos and currently advancing his legal studies. He is the National President of The Green White Green Vanguard, a socio-economic and political advocacy group based in Lagos. Email: greenwhitegreenvanguard@gmail.com.