The defection by 27 legislators loyal to the federal capital territory minister was a tactical error, writes Bolaji Adebiyi

Hostilities resumed in Port-Harcourt earlier in the week with the defection from the Peoples Democratic Party to the All Progressives Congress by 27 members of the Rivers State House of Assembly loyal to Nyesom Wike, erstwhile governor of the state and minister of the Federal Capital Territory. It left Siminalayi Fubara, the embattled governor, with only four members, one having died some time ago. The state has a 32-member legislature.

Just as it was thought Fubara was in trouble with more than two-thirds of the legislature required to remove him from office moving to the opposition party, he pulled stunts that left even his godfather bewildered. First, he obtained from a High Court of the state, an order restraining the defecting lawmakers and their factional speaker, Martins Amaehwule, from entering any place designated as the House of Assembly of the state. The order also recognised his ally, Eddison Ehie, as the speaker of the house. With the order, Ehie convened a meeting of the remaining four PDP legislators, which not only received Fubara’s 2024 financial estimates but also declared the seats of the 27 defectors vacant. Next, he reduced to rubbles the House of Assembly Complex.

With these swift counter-offensives, Fubara, until now presumed to be a political novice, had picked up the gauntlet and signaled his intention to resist the bully of Wike, his estranged mentor. The erstwhile godfather had been mum since his godson reacted virulently to his harassment. As the polity awaits his next move, not a few social and legal analysts believe that the defection of the 27 legislators was a major tactical error by Wike in the power struggle in the state because it was a clear afront on Section 109 (1) (g) of the 1999 Constitution as altered.

It states: “A member of a House of Assembly shall vacate his seat in the House if being a person whose election to the House of Assembly 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.

“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 of a merger of two or more political parties or factions by one of which he was previously sponsored…”

Safe for unbridled recklessness actuated by over-reliance on impunity, it is difficult to appreciate how Wike, a lawyer and avowed opponent of defection, would allow his allies to fall into this grave error, given not only the clear provision of the Constitution but also the plethora of case laws on its interpretation. The classical case on this matter is Ifedayo Abegunde vs Labour Party, where the Supreme Court ruled that except there was a division in the party, a member who decamped would lose their seat.

Elected into the House of Representatives in 2007 on the platform of the Labour Party to represent Akure North and Akure South Federal Constituency, Abegunde crossed over to the Action Congress of Nigeria in 2011, claiming that his party in Ondo State had become polarised. The LP approached the Federal High Court in Abuja, which annulled his seat on the ground that he had lost the seat by shifting allegiance from the platform upon which he stood to obtain the seat. His appeal to the Court of Appeal was dismissed, making him appeal to the Supreme Court.

Although it took 11 years for the matter to be finally disposed of by the apex court, the decisions of the lower court were upheld. The Supreme Court laid down the principle that votes cast by the electorate were for a party and could be transferred to another party. On the matter of the proviso in Section 68 (1) (g), which is impari material (similar) to Section 109 (1) (g), which exempts defection due to internal division, the apex court held that the division must be at the national level, and must be of such a grave nature as to divide the National Executive Committee to the extent that the party cannot function.

Since the apex court’s decision in 2022, all subsequent defectors have had their seats declared vacant by the courts. In March 2022, Senator Emmanuel Bwacha, representing Taraba South Senatorial District on the platform of PDP, was asked to vacate his seat by the Federal High Court Abuja when he defected to the APC. The court said the seat belonged to the PDP and could not be donated to the APC. When his colleague, Albert Akpan, representing Akwa North-east on the platform of PDP defected to the Young Progressives Party in January 2023, the same fate befell him.

Both of them had failed to learn from the 2022 cases of the 16 members of Ebonyi State House of Assembly and 18 members of Cross Rivers State House of Assembly as well as two members of the House Representatives, who had defected with their governors Dave Umahi and Ben Ayade respectively from the PDP to the APC. The seats were unceremoniously declared vacant on the ground of the Supreme Court precedent even when the governors survived the judicial challenges to their defection because they were immunised by the Constitution.

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Although Wike’s allies in Port-Harcourt claimed that the dispute over the national secretary of the PDP amounted to a division that justified their defection, it is clear this flew in the face of the principle laid by the Supreme Court on account of its flimsiness. However, the misstep has inflicted on Rivers State an absurd situation in which the state now has four legislators making legislative decisions pending the conduct of fresh elections into the 28 vacant seats.

But this absurdity was envisaged by the drafters of the Constitution as Section 11 (4) provides for the National Assembly to take over the legislative duties of a state House of Assembly if the latter is unable to function. The question is whether the absurdity of only four of 32 members of the House of Assembly of Rivers State has rendered it impotent. Whichever way this proposition is resolved it hardly looks good for Wike as Fubara would remain in office, and will most likely consolidate his hold on power. His moves so far indicate that he is not acting alone. Among the Yoruba, anyone who is confronted by a toothless chicken must take heed.

Adebiyi, Executive Editor of Western Post, is a member of the Editorial Board of Thisday.