Presidents, Governors And Defection

By Rotimi Ogunleye

This write-up is in effect a sequel to my earlier publication on defection of legislators entitled “Invoking constitutional provisions against defection”. The issue arising is whether there should be constitutional provisions against the defection of a President or Governor. That is, if sections 68(1)(g) and 109(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter called the 1999 Constitution) exist as penal measures against the defection by legislators, why are there no similar provisions against the defection of a President and Vice President or Governor and Deputy Governor?

In Ogbuoji v. Umahi (2022) 8 N.W.L.R. part 1832 page 323 at page 359 paragraphs B and C ratio 3, the Court of Appeal held that defection from one party to another may appear immoral or even improper but membership of political parties is an exercise of the freedom of association guaranteed by Section 40 of the Constitution but like every exercise of rights it comes with attendant consequences. As at today under the 1999 Constitution, the consequences are only visited on the defecting legislator at the State and National levels while his counterpart in the executive arm enjoys absolute freedom to defect.

Remarkably, since the advent of democratic rule in Nigeria, there is no case of defection by the holder of the office of the President. But a Vice President has defected from the party that sponsored his election to another. Also, Governors’ defections have occurred and recurred. But in each case, there is no constitutional impediment or condition(s) to be fulfilled. That is why at this time when bills are being sponsored at the National Assembly aimed at amending various sections of the Constitution, it is imperative to consider this area which I consider to be a lacuna.

In Abegunde v. Ondo State House of Assembly (2015) 8 N.W.L.R. part 1461 page 314 at page 347 paragraph F to page 348 paragraph F ratio 1 the Supreme Court described the act of defecting as “fraudulent and malevolent practice of cross carpeting politicians” who for “financial consideration or otherwise, crossed from one political party to another without qualms and without conscience”. Despite the seemingly immorality of defection, section 135 (unlike sections 68 and 109) of the 1999 Constitution provides for the tenure of the President in the following words:
Subject to the provisions of this Constitution, a person shall hold the office of President until – when his successor in office takes the oath of that office; he dies whilst holding such office; or the date when his resignation from office takes effect; or he otherwise ceases to hold office in accordance with the provisions of this Constitution.

Subject to the provisions of subsection (1) of this section, the President shall vacate his office at the expiration of a period of four years commencing from the date, when –
in the case of a person first elected as President under this Constitution, he took the Oath of Allegiance and the Oath of office; and
in any other case, the person last elected to the office under this Constitution took the oath of Allegiance and oath of office or would but for his death, have taken such Oaths.
(2A) In the determination of the four years term, where a re-run election has taken place and the person earlier sworn in wins the re-run election, the time spent in the office before the date the election was annulled, shall be taken into account.

If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time; but no such extension shall exceed a period of six months at any one time.

By virtue of section 142(2) of the Constitution, the provisions of Chapter VI Part 1 of the Constitution (comprising sections 130 to 175 of the Constitution) relating to qualification for election, tenure of office, disqualification among others apply to the office of the Vice President as if references to President were references to Vice President. The President or the Vice President may be removed from office in accordance with section 143 of the Constitution. Also under section 144 of the Constitution, the President or the Vice President shall cease to hold office due to permanent incapacity to discharge the functions of his office. In like manner, the tenure of a Governor is provided for in section 180 of the Constitution and by virtue of section 187(2) of the Constitution the provisions of Chapter VI Part II of the Constitution (comprising sections 176 to 212 of the Constitution) relating to qualification for election, tenure of office, disqualification among others also apply to the office of the Deputy Governor as if references to Governor were references to Deputy Governor. The Governor and the Deputy Governor may be removed under section 188 of the Constitution and they shall cease to hold office on ground of permanent incapacity under section 189 of the Constitution.

In effect, the framers of the 1999 Constitution did not provide for what would happen if any of, or both, the President and Vice President or any of, or both, the Governor and Deputy Governor defect from the party that initially sponsored them and join another. The issue came before the court in Attorney General of the Federation v. Abubakar (2007) 10 N.W.L.R. part 1041 page 1 when the then Vice President, Alhaji Atiku Abubakar who was sponsored with President Olusegun Obasanjo by the Peoples Democracy Party defected to the Action Congress. The Supreme Court noted that section 142(1) of the Constitution provides that a Presidential candidate shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party who is to occupy the office of Vice President on a single ticket. The court however held that the principle of single executive envisaged by the Constitution should subsist throughout their joint term. The apex court further faulted the situation where the Vice President defected, held on to his office tenaciously, criticized the same government he belonged and campaigned for election as President in his new party. But the court held that despite the anomaly, it was not the duty of the court to declare his seat vacant, rather it was that of the National Assembly which is empowered under section 143 of the Constitution to remove the President or the Vice President. The position was reiterated in Ogbuoji v. Umahi (2022) 8 N.W.L.R. part 1832 page 323 at page 362 paragraph A to G ratios 7 and 8 where the Court Of Appeal held that: the power to declare the offices of the holders of the offices of Governor and Deputy Governor vacant was not conferred on the judiciary by sections 180, 188 and 189 or any section of the Constitution. The Respondents (Engr. David Nweze Umahi and Dr. Eric Kelechi Igwe) contested on joint ticket for the 2019 Governorship election on the platform on People Democratic Party (PDP) against the Appellants (Senator Soni Ogbuoji and Justin Mbam Ogodo), won and assumed offices as Governor and Deputy Governor of Ebonyi State respectively. On the 17th of November 2020, they defected from the PDP to APC and consequently the appellants sought the intervention of the court through originating summons to declare among others that the votes scored by the Respondent in the 2019 election were deemed abandoned and consequently they should vacate their offices while the 1st Appellant who scored the second highest votes should be declared winner of the election, returned and inaugurated with the 2nd Appellant as Governor and Deputy Governor respectively. The court dismissed the appeal by holding that there is no constitutional provision for the removal of the President, Vice President, Governor and Deputy Governor on the ground of defection.

However, it is submitted that for democracy to be deepened and in order to make what is sauce for the goose to also be sauce for the gander, there, should be constitutional amendment to sections 135, 142, 143, 144 and 146 of the Constitution in relation to the offices of the President and the Vice President in case any of them defects during the pendency of their term. Also sections 180, 187, 188, 189 and 191 of the Constitution should be amended as regards the offices of the Governor and Deputy Governor to provide for the declaration of the offices vacant in case of defection. Notably, section 146(1)(3)(c) of the Constitution provides for “any other reason” to declare the offices of the President and Vice President vacant just as section 191(1)(3)(c) of the Constitution makes similar provision in relation to the offices of the Governor and Deputy Governor. Both executive positions at the national and State levels should equally pay the price of defection which is the albatross on defecting legislators.

Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator.