Senator Akpabio’s Case On Defection Opens A New Frontier For Constitutional Amendement-Monday Ubani

The Federal High Court in Abuja presided over by Hon Justice
Okon Abang held that a former Minority Leader, Senator Godswill
Akpabio’s movement from the People’s Democratic Party to the All
Progressives Congress last year was not a case of defection but a
movement occasioned by expulsion from the original Party.

The Judge held on to this view based on a letter dated August 2.
2018 written by the PDP expelling the Distinguished Senator from
the Party. The judge was of the strong view that having been
expelled by the PDP, Senator Akpabio was at liberty to join another
political party of his choice, and to declare that he has defected
to another political party has no backing of the Constitution. He
further held that to declare Senator Akpabio’s seat vacant as
requested by the Plaintiff, Legal Defence and Assistance Project
would be to punish him for exercising his right to Freedom of
Association under Section 40 of the Constitution of 1999 as
Amended.

This pronouncement of Justice Okon Abang was made in a suit
filed by LEDAP seeking an order declaring the seats of 54 members
of the National Assembly, including Senator Akpabio, accused of
unlawful defection from the parties which sponsored their elections
to other ones. While the learned judge dismissed the case of the 53
lawmakers without considering the merit of the case on the grounds
that the Plaintiff, LEDAP lacked locus standi, he dismissed that of
Senator Akpabio on the ground that the Senator did not defect as
defined under Section 68(1)(g) of the 1999 constitution as amended
but that he moved into a new Party out of frustration.

The Plaintiff had anchored its suit on the said Section 68(1)(g)
of the constitution which provides that the seat of a legislator
who defects from his or her Party without any division in the party
before the end of the tenure for which the Party sponsors the
lawmaker’s election shall be declared VACANT.

In his considered judgement (which by implication) has expanded
the provision of the constitution, Justice Abang held that the
provision of Section 68(1)(g) of the constitution was not
applicable to Senator Akpabio who “neither defected nor decamped”
but only “moved” from the PDP following his expulsion.

MAKING A CASE FOR AN AMENDMENT.
It is an established fact that no constitution or law prescribes
for every situation in in the polity,since laws by nature are made
by human beings who remain fallible. However, whenever new issues
crop up in the polity when applying the law, the best thing to do
in such situation is to quickly address it by amending the
constitution or law to cure such noticeable defect. Recall the ugly
situation which occurred sometime ago in Kogi State where late Audu
Abubakar contested as a gubernatorial candidate of APC and died
when the election which he contested was declared inconclusive by
INEC. The country was thrown into legal confusion, for the
constitution did not envisage a situation that will arise where a
candidate will suddenly drop dead after an election which have had
some results announced but the entire election being declared
inconclusive. The lawmakers quickly took up the gauntlet and had
the Section of the Constitution amended to correct such an ugly
situation which may arise sometimes in the future. That was
commendable step. And so for Section 68(1)(g), it is clear that
what that Section envisages is a situation where a lawmaker will
willingly walk out of the Party that gave him or her an opportunity
to be a representative in the National Assembly and for which the
sanction will be to have his or her SEAT DECLARED VACANT by the
court. Anyone who walks out of the mother Party when there is
crisis, division or merger is not to be sanctioned for such
movement. The constitution never envisages a situation where the
mother Party will FOIST UPON THE ELECTED MEMBER A FAIT ACCOMPLI
SITUATION THAT WILL RENDER THAT MEMBER POLITICALLY IRRELEVANT IF HE
OR SHE TAKES NO PRACTICAL STEP TO STAY AFLOAT.

The story of Senator Akpabio which is evidenced by documents
which he tendered before the Court was that his mother Political
Party expelled him and that, that expulsion took place few days
before the closure of the timeline within which candidates were
supposed to pick forms for the contest of primary election in their
various political parties. According to him he was left in the
dark, an orphan so to speak and so to remain afloat and politically
relevant he had to do a quick move to another Political Party to
avoid being thrown into political oblivion. These were the facts
that the learned Justice considered and came to the inescapable
conclusion that that the distinguished Senator was indeed about to
be frustrated politically and since the freedom of association is
guaranteed by the constitution of the Federal Republic of Nigeria,
the Distinguished Senator had a choice to move to another political
to actualize his ambition of returning to the Red Chambers. It is
worthy of note that his election to come back to the Red Chambers
is presently a subject of serious litigation before the Election
Tribunal in Uyo, Akwa Ibom State.
By this judgement, any lawmaker who moves out of his or her
political Party by virtue of expulsion, suspension and such like
which its intent and purpose by the mother Party is to render such
lawmaker politically irrelevant has a constitutionally guaranteed
right of movement and association to join another political Party
to stay afloat politically. That is the import of the decision
reached today the 17th of May, 2019 by Learned Justice Okon Abang
of Federal High Court, Abuja.

SUGGESTED AMENDMENT.
Apart from the exception already recognized by the constitution
under Section 68 of the 1999 Constitution as Amended which exempts
any lawmaker’s seat from being declared vacant if there is evidence
of division in the mother Party, this new ground as recognized by
the judgment of Justice Okon Abang should also be incorporated as
one of the exceptions to declaring the lawmaker’s seat vacant.

The second issue that should attract the attention of those who
will effect the amendment is to examine the wisdom of the perennial
complaints or concerns of some Nigerians who have expressed the
strong view that whosever have “defected” or “moved” to another
political party whether on the grounds of division or as in Senator
Akpabio’s case where he was expelled is to forfeit the rights and
privileges of being a Representative in the House since he or she
is no longer a member of the mother political Party through whom he
or she came to the House. Sound argument you think? Others will
counter it and state that it will be greatly unjust to advice a
representative who is there for the sake of his constituency to
remain in a mother political Party that is constantly embroiled in
crisis and division with no articulated focus to aid the member
bring home dividends of democracy to his or her constituents.

It will be advisable they say that the lawmaker should seek
refuge elsewhere for the sake of his or her constituents in order
to render adequate representation to them. Also in the case of
Senator Akpabio where the alleged mother Party’s intent is to
frustrate the particular candidate who has been delivering
dividends of democracy to his people, it will be foolish they say
to advise such a candidate to allow himself or herself to be
drowned politically instead of seeking ways to remain politically
afloat and relevant to his or her people.

As we look forward to have this Section tinkered with by those
who are saddled with the responsibility of amending our
constitution under Section 8 of the 1999 Constitution as Amended,
we hope that they will take critical look to the issues raised
above and address them squarely and fairly and save Nigerians from
this perennial arguments and counter arguments whenever our
lawmakers defect from one political party to another. The idea of
entrenching the issue of “political ideology” by enactment will not
be a bad idea after all. The lack of it is the cause of this
constant defections, decamping and its like in the polity by the
Lawmakers and other politicians.

Monday Onyekachi Ubani(MOU) ESQ,
The Immediate 2nd VP of NBA.

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