By Ekene Aninze
Quite outskirt from the business of winning election is the utmost need to maintain undivided loyalty and trust between a political party and it’s elected members. it’s the earnest desire of every political party to control the power structure and resources that flows from the nooks and crannies of a state and federation at large after election.
This desire is only achievable by sponsoring capable political party loyalists into elected executive and legislative offices.The keen understanding is the fact that there should be a clear cut healthy synergy of cooperation between the party and the elected office holders throughout the duration of the term in which they were elected. However, the reverse happens to be the case most often times than not, as political parties are most times left helpless by these elected office holders after election..
This article is targeted at critically re-examining the unconscionable aspect of executive party defection/floor crossing in Nigeria as well as the need to insert an anti-defection/floor crossing clause in the Nigeria constitution.
Floor crossing is a joined word that connotes party defection and disloyalty. It’s a term that is basically unique and familiar to the legislative or parliamentary arm of every nation. The term can be used in two different ways, either as a process where one Member of Parliament, legislature (or Council) ultimately leaves his or her political party in order to join another, or where a legislature votes against his party line and Interest during Parliamentary debate. As a result of the unconscionable stress of losing party faithfuls and attendant vacuum that this culture of party switching often breeds in the political space, many nations have enrolled floor crossing as illegal and one of the major grounds a legislator could lose his/her seat if defected before the elected term.
Chiefly among these nations is Belize who by virtue of Article 59 of her constitution, has made it illegal for a legislator to switch party loyalty during his/her term in office, in Namibia, the position is not far different, as it is illegal by virtue of Article 48 of Namibia constitution for a legislator to switch his party loyalty during his term. In Nepal, Seychelles and Sierra Leone, Article 49, 81 and 77 of their respective constitution has expressly debarred a member of the parliament from switching their party loyalty during his/her term. The situation is not any different in Singapore and Zimbabwe, who by virtue of Article 46 and 41 of their respective constitution makes floor crossing a major criteria for losing a legislative seat during the term of office.
The case of floor crossing is even more serious under 1985 Fifth-Second Amendment of Indian constitution, as the constitution by virtue of Article 102 made it illegal for a member of the legislature to vote against his/her party or refuse to vote during parliamentary debate. In Nigeria, the position is not any different as the 1999 constitution of the Federal Republic of Nigeria by virtue of section 68 (1) (g) and 109 (1) (g) expressly makes it illegal for a member of either of the upper houses in the National Assembly or State House of Assembly respectively to switch his party loyal during his/her term in office, except for some proviso which the aforementioned provisions provided itself. Under the 1979 constitution, floor crossing is one of the major grounds a President or Governor could be estopped from contesting a second term.
However, the fact that that the drafters of 1999 Constitution excused that provisions from the streams of the Constitution, has opened a flood gate of an unconscionable massive defection of Governors and their Deputies from the fringes of states like Ebonyi, Edo, Ondo, Akwa Ibom, Zamfara and a host of others. This article tends to examine the political bane that comes with executive floor crossing as well as the need to enroll executive anti- defection clause under Nigeria constitution.
EXECUTIVE FLOOR CROSSING.
Just like the definition alluded to legislative floor crossing, executive floor crossing is a process where an elected President, Deputy President, Governor or Deputy Governor’ abandones his party on whose wings he rode into power and pledge his allegiance to another party during his term in office.
The issue of executive floor crossing in Nigeria saw it’s way within the corridor of the apex court as far back as 1983 in Federal Electoral Commission v. Alhaji Mohammed Goni & Anor (1983) – SC when the Supreme Court was called upon to determine the eligibility of Governor Goni to contest a second term bid, having defected from the Great Nigeria People’s Party (GNPP) from whose umbrella he emerged as a Governor to join Unity Party of Nigeria (UPN). Although the decision of the court in affirming Alhaji Goni’s eligibility was based on the clear provisions of the defunct 1979 Constitution of the Federal Republic.
However, the question of whether an elected President, Vice President or Governor and his Deputy could lose his seat for defecting to another party was not properly answered until the case of A.G of Federation v. Atiku Abubakar (2007) – SC, the fact of the case was that on the 20th day of December 2006, his excellency Atiku Abubarkar being the Vice President had openly declared for another political party; the Action Congress, as against the People Democratic Party platform in which he was elected as the Vice President of Nigeria, the President in a counter action declared his seat vacant. When the Vice President approached the Apex court for thr proper interpretation of whether an elected executive officer such as Vice President could lose his seat for defecting to another political party, the apex court through Akintan JSC (as he then was) held that there’s no provision of the 1999 constitution of Nigeria that demands an undivided loyalty between a party and a President or Vice President.
The necessary implication that flowed from the judgement was to the effect that unlike section 68 (1) (g) and section 109 (1) (g) of the 1999 Constitution that prohibits a member of the federal and state legislature respectively from losing their seat over party switching, the Constitution does not envisage that a President, Vice President, Governor or Deputy Governor should vacate his seat over defection.
As legally correct as the apex court decision echoed in the aforementioned case, it’s unfortunate to say that the decision had overtime opened a flood gate for political instability in Nigeria, as Governors and their Deputies no longer retain their party loyalty even for half of the term they were elected.
The bane of executive floor crossing has hit it’s highest height that there’s an urgent need to insert an anti- defection clause under the 1999 Constitution. Chiefly among these defections that chaired the day was Governor Godwin Obaseki who defected from APC party to PDP in June 2020 after he was denied the chance of participating in APC primaries that would have seen him come back for second term under the same umbrella. Happening concurrently in the west, the Deputy Governor of Ondo state, On 21 June 2020, Ajayi; resigned his membership from the ruling party APC and defected to the opposition People’s Democratic Party (PDP), citing irreconcilable issues between him and his Governor Rotimi Akeredolu (SAN) and that the APC party ‘has become a poisoned space. In similar vain, Happening in the south, Governor Ayade of Cross River State defected from PDP to APC, just after six months that Governor David Umahi of Ebony switched his loyalty from PDP to APC in the east. The most recent among this issue of party instability erupted from the north, were on the 29th of June 2020 Governor Matawalle from Zamfara State defected from PDP to join APC with all members of the state House of Assembly and National Assembly, except the State Deputy Governor, Mahdi Gusau and a representative from Anka/Talata-Mafara Federal Constituency who remained in the PDP. It’s submitted that this issue of party switching and hopping has seriously become a bane and distortion to the streams of political stability in Nigeria and thus, the 1999 constitution of the Federal Republic of Nigeria needs to be re- visited with brand new provisions that will bar a President, Governor or his Deputy from retaining his seat once there is a switch in party loyalty.
ARGUMENT ON EXECUTIVE ANTI DEFECTION CLAUSE. WHY IS EXECUTIVE ANTI – DEFECTION CLAUSE NECESSARY?
It’s submitted that there should be an urgent need to insert a legal rope under the Nigeria constitution that binds a President, Governors or their Deputies from defecting to another party during their term in office, just the same way the provisions of Section 68 (1) (g) and Section 109 (1) (g) of the 1999 constitution binds a legislature from defecting during his term in office. This reasoning is aptly reached, flowing from the fact that it’s still the same process of election that brings both an executive office holder and a member of the legislature into political office. For the purpose of clarity devoid of legal doubt, Section 68( 1)( g) of the 1999 constitution is impari materia (of similar content) with Section 109 (1) (g) of the constitution and it 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; 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.
The need to insert this provision as being one of the basis for losing an executive seat such as President or Governor will help fore-stall this incessant act of party backstab and influx of party hopping.
Again, when one tends to examine the key role played by a Political Party before the emergence of any President or Governor, then the need to have anti-defection law that estops a President or Governor from changing his loyalty is over riped. This is so owing to the fact that by virtue of the provisions of Section 131 (1) (c) and Section 177 (1) (c) of the 1999 Constitution, one of the key requirements for contesting the position of a President or Governor respectively is that a person must belong to a Political Party. This automatically implies that without a Political Party, no person can ever emerge as a President or Governor. Thus, the necessary expectations that flows from this provision is to the effect that the Constitution had already envisaged a political synergy and undivided loyalty between an executive office holder and his Political Party which should remain so throughout his term in office.
Again, by the combination reading of the provisions of Section 31 and 87 of the Electoral Act of 2010, it’s still the Political Party that single-handedly out-picks a candidate, then nominate and conducts primaries for the purpose of making the candidate the Party’s flag bearer for the position of either the President or the Governor. By virtue of the provisions of Section 94 of the Electoral Act 2010, the uphill task of the Political Party in making sure that their candidates emerge victorious extends to the Political length of conducting rallies across the states and different parts of the country. If the legal tie and romance between an executive office holder and his Political Party does not change during the whole process of election, then why should it be anything different after election?
With all due respect, we submit that there should be a re- visitation of the grounds for which a President, his Vice, Governors and Deputies could vacate their seat or cease to become executive office holders, it’s aptly submitted that the provisions of Section 135 and 180 of the Constitution of the Federal Republic of Nigeria 1999 that expressly provides the tenure of office of the President and the Governors respectively should be re-visited and special provisions re-enacted. For the purpose of clarity, Section 135 of the 1999 Constitution is impari materia with Section 180 of the constitution and it provides that ” Subject to the provisions of this Constitution, a person shall hold the office of President until -(a) when his successor in office takes the oath of that office; (b) he dies whilst holding such office; or (c) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of this Constitution. We submit that there should be a sub- paragraph under the above provisions that will check mate a President or Governor from switching his party during his term in office.
Alternatively, we recommend that executive Political Party switch should be regarded as a grave violation of the Constitution and should be enlisted as one of the gross misconducts that the legislature can use to carry out their impeachment proceeding functions against a President or Governor as envisaged under the entire provisions of Section 143 and 188 of the 1999 Constitution where the legislative powers of impeachment are clearly spelt out.
It’s an understatement to state that executive Floor Crossing/defection has become a Politicaal culture in Nigeria, the rate at which this incessant act breeds Political instability and shambles cannot be gainsaid. The difficulties it brings to the growth of Nigeria nascent democracy can no longer be over- looked. It has gotten to the peak to the extent that a President or Governor who decides to sink or pass the storm with his party is regarded as political coward for not joining “the winning team”. it’s now even worse when impeachment proceedings are attempted against a Co- Political Pilot such as a Vice President or Deputy Governor who refuses to defect with his boss.
Just as recently seen in Zamfara state where an impeachment proceedings was attempted against the Deputy Governor for sticking with the Party that elected him. There is an urgent need for a legislative intervention, in order to curb this Political menace. As an addendum to the recommendations and submissions already stated, the legislature should enact a similar provision that was found in Section 166 of the defunct 1979 Constitution of the Federal Republic of Nigeria which makes it impossible for a Governor to be eligible for a second term if he does any act or acquires any status or suffers any disability which if he were a member of the legislature will disqualify him from contesting. In order to preserve the sanctity of Nigeria nascent democracy, the Constitution should bar those executive office holders that engage in Party harlotry from participating in second term bid.
Ekene Aninze is a final year law student at University of Benin, Benin city who has a great interest in legal draftings, legal fictional series, advocacy, legal argumentative articles and a host of others.