Respectfully, Sir, Senator Akpabio’s Defection Case Has Not Opened Any New Frontiers For A Constitutional Amendment? (A Rejoinder By Sylvester Udemezue)

• Introduction (An Aside): Expelled or
  Defected?

A breaking news on August 08, 2018 came under the head, “Senator
Akpabio Officially Dumps PDP for APC.” (see <https://www.channelstv.com/2018/08/08/senator-akpabio-officially-dumps-pdp-for-apc/>
accessed May 18, 2019). Channeltv.com had summarized the news
report thus:^[1]

“Senator Godswill Akpabio has officially announced his
defection from the Peoples Democratic Party (PDP) to the All
Progressives Congress (APC). The former governor made the
announcement on Wednesday at a rally organised by the APC to
welcome him into the ruling party in Ikot Ekpene area of Akwa Ibom
State. Before his defection, Senator Akpabio was the Senate
Minority Leader and a strong member of the opposition party. The
Secretary to the Government of the Federation, Boss Mustapha; APC
National Chairman, Adams Oshiomhole; and the party’s national
leader, Bola Tinubu, were among the leaders who stormed Akwa Ibom
for the event. On Tuesday, Akpabio informed the Senate leadership
and his PDP colleagues in the chamber that he was leaving the party
for the APC. He had said, “This letter is to inform you of my
resignation as the Senate Minority Leader with effect from August
4, 2018.”

Most media stations/houses in Nigeria carried a similar report.
On dailypost.ng, it was “Senator Godswill Akpabio Officially Dumps
PDP for APC.” See also “Akpabio finally dumps PDP” (guardian.ng).
At that rally, Senator Akpabio himself had tried to justify his
defection from the PDP to the APC. He explained that he defected
from PDP to APC “in the national interest” and because President
Muhammadu Buhari “is  a man of integrity and a nationalist,”
saying there was “the need to put all hands on the deck to salvage
the situation in the country and not to aggravate it.” According to
him, “the country is at war … and everyone should put heads
together. I decided to join to emancipate the people and provide
succour for the people.” Below is part of his speech at the
rally:

“I decided to join the APC at this time because I am a
nationalist. In times like this, everybody should support to bring
peace to our dear nation; to stop the killings and ensure
employment for our teeming youths… Southsouth cannot stand alone on
its own. We need to collaborate with others. I consulted. What I
have done today is to take the people of the South-South to the
centre. With my exit, this is the end of PDP in Niger Delta. The
People’s Democratic Party (PDP) of today had no vision and the
leadership is arrogance.”  (see “Why I defected to APC, by
Akpabio,” <https://thenationonlineng.net/why-i-defected-to-apc-by-akpabio/^[2]>  accessed May
18, 2019).

What is more? On Senator Akpabio’s official wikipedia.org still
contains the report that “in August 2018, Senator Akpabio
resigned as the Senate Minority Leader, after he had announced his
defection to the All Progressive
Congress^[3]. His defection was
marked by Political rally in his hometown at the Ikot Ekpene
township stadium, Akwa Ibom State.” (<https://en.wikipedia.org/wiki/Godswill_Akpabio^[4]>
accessed May 8, 2019). The was an earlier report that
“Akpabio Resigns as Senate Minority Leader.”
(<https://www.channelstv.com/2018/08/07/akpabio-resigns-as-senate-minority-leader/^[5]>
accessed May 18, 2019):

“A former Governor of Akwa -Ibom State, Godswill
Akpabio, has resigned his position as the Minority Leader of the
Senate. Akpabio, who represents Akwa-Ibom North-West
Senatorial District in the National Assembly, addressed the letter
to the Deputy Senate Minority Leader, Emmanuel Bwacha of the
People’s Democratic Party (PDP).”

It appears from the above that Senator Akpabio was not expelled
from the PDP, but had voluntarily defected from the PDP to APC;
that he “dumped” the PDP and not otherwise. The Nigerian
electronic, social and print media space was awash with the news of
Senator Akpabio’s defection from the PDP to the APC in August 2018.
At no time did Senator Akpabio issue any statement refuting any of
such reports. On the contrary, he himself had openly confirmed the
reports and openly bragged about his defection which, according to
him, was a right step in the right direction. Further, there would
have been no need for his “Letter of Resignation”
from the position of Senate Minority Leader if he had previously,
truly, been “expelled” from the PDP. This is because, the expulsion
would have automatically terminated his Senate Minority Leadership
position, and rendering needless any formal letter of resignation
from him to the Senate. Until May 14, 2019, from available news,
there was no doubt in anyone’s mind that it was Senator Akpabio who
had in August 2018 voluntarily left, dumped, abandoned the PDP for
the APC, unless, anyhow, all the news reports above had happened
only in a dream — our dream. Or, perhaps, it is now possible, easy,
(at least, in Nigeria) to fool all the people all the
time! One could, therefore, easily see why it was a
huge shockwave to be treated with this strange breaking news of May
14, 2019: “I was expelled by PDP; I
didn’t defect, Akpabio tells court.” (see <https://businessday.ng/politics/article/i-was-expelled-by-pdp-i-didnt-not-defect-akpabio-tells-court/^[6]> accessed May 18,
2019). Equally shocking, if not more, with due respect, is the news
report that His Lordship, Hon Justice Abang, had struck out the
defection suit against 53 Senators, on grounds that the plaintiff
(LEDAP) lacked locus standi to institute the suit, and
yet, the same court assumed jurisdiction over Senator Akpabio’s
case (instituted by the same plaintiff) and dismissed the case on
merit. This, I understand to mean that His Lordship had the
jurisdiction to hear the case against Senator Akpabio (instituted
by LEDAP) but lacked jurisdiction to hear the case against 53 other
Senators (instituted by the same plaintiff). I have not read the
full judgment, but based on the news reports, I submit, with the
greatest respect to the Court, that one major question arises from
His Lordship’s decision on locus standi in this
case: If the Non-Governmental Organization, LEDAP,
lacked locus standi against the 53 senators, where
did LEDAP get locus standi against Mr. Akpabio, a fellow
senator? Or, could it be that the judge was just
interested in hearing the merit of Senator Akpabio’s case, in spite
of the locus standi question, and notwithstanding the
judge’s decision on LEDAP’s lack of locus in respect of the other
53 senators? But, then, if the judge was interested in hearing
Senator Akpabio’s case, does that not raise another question as to
whether the judge could on his own (in any circumstance where
extant law says otherwise) confer jurisdiction on himself? Or, did
the judge simply apply different strokes to similar scenarios? How
logical or valid is such in law? Anyway, “Wonders shall
never end” is a popular exclamation in situations
such as this! But, the truth is, all the aforesaid are just
an aside, and, consequently, beside the point
because the present paper is not about whether Senator Akpabio had
defected or was expelled, neither it about the legality or
otherwise of his defection/expulsion, nor is it a direct critique
of the said judgment of the FHC, eminently presided over by Hon
Justice Okon Abang. This paper is a reaction to the news report of
May 18, 2019 under the headline, “Senator Akpabio’s
Case on Defection Opens a New Frontier ror Constitutional
Amendment—-Monday Ubani.” This paper examines Mr.
Ubani’s observation and recommendation for a constitutional
amendment; the paper respectfully offers reasons and legal
authorities to advance its conclusion that Mr. Ubani’s call for a
constitutional amendment is unnecessary, on grounds that, as the
writer thinks, Senator Akpabio’s defection case/judgment has not
thrown up anything novel nor uncontemplated by the 1999
Constitution, to warrant an amendment in the constitution, unlike
what had happened in or about 2015 in Kogi State regarding the Audu
Abubakar-Faleke imbroglio which rightly had thrown up a situation
previously uncontemplated by the grund norm.

Following reports of Senator Akpabios’s defection from the
PDP to the APC, a Non-Governmental Organization (NGO), the Legal
Defence and Assistance Project (LEDAP) had filed a suit at the
Federal High Court, seeking an order declaring as vacant, the seats
of 54 members of the National Assembly, including Senator Akpabio,
accused of unlawful defection from the parties which had sponsored
their elections to other ones. The Plaintiff had anchored its suit
on section 68(1)(g) of the Constitution of the Federal Republic of
Nigeria (CFRN), 1999, as amended, 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 deemed vacant. However,
as reported by the NigeriaLawyer.com, The Punch and other media
platforms, the presiding judge, Hon Justice Okon Abang, in his
judgment, 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. While the learned judge threw out the case of the 53
lawmakers without considering the merit of the case on the grounds
that the Plaintiff, LEDAP, lacked locus standi, the judge dismissed
that of Senator Akpabio on merit, 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 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. “Having been expelled by the PDP,” said the
judge, “Senator Akpabio was at liberty to join another political
party of his choice, so, to declare that he has defected to another
political party has no backing of the Constitution,” as that would
tantamount to “punishing him for exercising his right to Freedom of
Association under Section 40 of the Constitution of 1999 as
Amended.” (See “Akpabio didn’t defect to APC, he moved because PDP
expelled him – Court,” <https://punchng.com/akpabio-didnt-defect-to-apc-he-moved-because-pdp-expelled-him-court/^[7]> accessed May 18,
20019).

Reacting to the 17 May 2019 judgment of the Federal
High Court, as reported, respected senior lawyer, public
commentator, avid writer, human rights activist and ex 2nd Vice
President of Nigerian Bar Association, Mr. Monday Ubani, on 18 May
2019 observed/declared that Justice Abang’s judgment in this case
had “expanded the provision of the constitution” and accordingly,
had thrown up a situation not contemplated by the 1999
Constitution, thus necessitating a constitutional amendment, to
remedy the novel situation. Mr. Ubani then
concluded:

“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…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.”  (senator-akpabios-case-on-defection-opens-a-new-frontier-for-constitutional-amendement-monday-ubani/^[8]> accessed
May 18, 2019)

The question for determination, arising from Mr. Ubani’s
observation and proposition, is whether there is indeed any need
for a constitutional amendment as a result of the judgment of the
Federal High Court in the present case. With the greatest respect
to my learned friend, Mr. Ubani, I answer this question in the
NEGATIVE. My reasons follow from here.

• Why Akpabio’s Defection Case is not a Novel
  Case

First, we look at the legal meaning of some of the terms or
words relevant for this discussion. The following definitions are
taken from Black’s Law Dictionary (see Garner, B,
In: Black’s Law Dictionary (9th ed., West/Thomson Reuters,
2009) 658, 662, 1073 & 1276).  (1)
EXPULSION means “an ejectment or banishment,
either through depriving a person of a benefit or by forcibly
evicting a person.”  (2) To be EXPELLED means
“to be driven out or away; to be ejected especially with force.”
(3) A POLITICAL PARTY is “an organisation of
voters formed to influence the government’s conduct and policies by
nominating and electing candidates to public offices.” (4) A
MEMBER of an organisation is “one of the
individuals of whom an organisation or a deliberate assembly
consists, and who enjoys full rights of participating in the
organisation … (5) To DEFECT from a political
party means “to forsake the political party, especially so as to
join the rival or opposition; abandonment of loyalty.” See
ALI V OLISAKWE (2010) LPELR-3743 (CA). (6) To
MOVE means “to pass from one place or position to
another; to go from one place of residence to another; to change
from one place or position to another.” (<https://www.dictionary.com/browse/move^[9]> accessed may 18,
2019).

A close look at the legal meaning of “expel” or “expulsion”
leaves no one in doubt that when a member of a political party is
validly expelled from the party, that member automatically ceases
to be a member of the political party and ceases to enjoy any right
or privilege conferred on him by, and or dependent on, such
privilege. Accordingly, since the learned Judge had upheld as valid
the “letter dated August 2. 2018 written by the PDP expelling the
Distinguished Senator from the Party,” it then necessarily followed
that, as at August 02, 2018, Senator Akpabio had ceased to be a
member of the PDP, judging from the legal meaning of “member” and
“political party,” as given above. Being, as from 02/08/2019, a
person who was NO longer a member of any political party in
Nigeria, Senator Akpabio was free, constitutionally, to join or
associate with any organization in Nigeria, including a political
party. It then follows that, as the judge rightly concluded,
Senator Akpabio’s decision to join a political party (the APC) was
in exercise of his freedom of peaceful assembly and association in
line with section 40 of the CFRN, 1999, as amended, which provides
that “every person shall be entitled to assemble
freely and associate with other persons, and in particular he may
form or belong to any political party, trade union or any other
association for the protection of his interests.” With due
respect to Mr. Ubani, I do not see anything extraordinary or novel
in this scenario other than what I had pointed out as an
aside, under paragraph A above. His Lordship agrees that
Senator Akpabio was ejected from the PDP, leaving him
“party-less.” This in effect means that, as at the date
Senator Akpabio joined the APC, in August 2018, he was not a member
of any other political party.

Similarly, with due respect to the presiding judge, the question
of Senator Akpabio having “moved” from the PDP did not arise. A
person cannot be said to have moved from Political
Party A to Political Party
B unless the person was a bona fide member of
Political Party A as at the time of the
person’s “movement’ into Political Party
B. I humbly submit that, having decided that Senator
Akpabio had been validly expelled by the PDP prior to his decision
to join the APC, the Hon Judge was wrong to have resorted to any
conclusion that Senator Akpabio had “moved” from the PDP “out of
frustration” into the APC.  Use of the word, “move” in this
context, by the learned Judge is, with respect, inappropriate.
Movement” from one party to another party indicates a voluntary
action. Such movement could be constitutionally justifiable if one
moves from party A to party B, as a result of division in party A.
(see section 68(1)(g) of the CFRN, 1999). Such movement could on
the other hand be undertaken when there is no division in Party A
in which case the movement is not constitutionally justifiable and
would amount to type of defection which might render the defector’s
seat vacant. Either way, with respect, it was inappropriate for the
judge who had ruled (1) that Senator Akpabio was not a member of
the PDP as at the time he joined the APC, having been expelled by
the PDP and (2) that section 68(1)(g) of the CFRN, 1999 dealing
with defection does not apply to Senator Akpabio’s case, to have
turned around and held that Senator Akpabio’s was a movement from
PDP to APC. The right thing to say, which the His Lordship has
said, is that Senator Akpabio merely exercised his right to freedom
of peaceful assembly and association under section 40, CFRN, being
at that time NOT a member of any political party in Nigeria, and as
such 100 per cent free as a Nigerian, to join any political party
of his choice, if he desires.

Based on the discussion above, I humbly submit, with due respect
to my learned friend, Mr Ubani, that I do not see anything in the
Senator Akpabio defection case that was not contemplated by the
CFRN, 1999. Hence, the call for a constitutional amendment as a
result of the case is unnecessary. I now pose some more questions:
(1) Since there is nothing new, why call for a constitutional
amendment thereon? (2) Is it to amend the constitution to define
the status of an “expelled” party member? That is unnecessary
because the implication of expulsion is crystal clear — the person
expelled automatically ceases to be a member! (3) Is it to guide
the person expelled on what next steps to take? That is unnecessary
because, being a full-grown adult, the affected person reserves the
right to make any decision for himself— he could remain
“party-less,” if he wishes!  Many adult in Nigeria
today do not belong to any political parties
–e.g., civil servants, Olusegun Obasanjo, Yakubu
Gowon, Abdulsalami Abubakar, Matthew Kuka, and countless others.
However, since independent candidacy is not
recognized by the 1999 Constitution, and Senator Akpabio had the
intention of contesting for a seat in the Senate, the only option
available for him after his said expulsion from the PDP was to look
for another political party and join, so that he might pursue or
realize his ambition thereunder. This could be the reason he
quickly chose to join the APC, which then closed the case. (4)
What, then, is in it, that warrants a constitutional amendment?
Absolutely nothing, in my humble opinion!

Finally, I am unable to see how the PDP had foisted a “FAIT
ACCOMPLI SITUATION” upon Senator Akpabio who after his “expulsion”
had quickly joined another political party and was warmly welcome
and indeed was shortly thereafter nominated a Senatorial Candidate
for his senatorial district on the platform of his new political
party – the APC. (5) Was there any assurance that
Senator Akpabio would have been nominated to such a position by the
PDP if he had remained in the PDP? No, because vying for a Senate
seat was/is not Senator Akpabio’s birthright! It was/is a position
to be contested for through a party primary election and whoever
emerged winner would go ahead to fly the party’s flag in the
general elections. I further submit that, since Senator Akpabio’s
case has now suddenly (turned around to shockingly) become (as the
court held) a case of “expulsion” instead of the “defection” that
we all knew prior to 17 May 2019, there is nothing wrong, novel,
nor that creates a “fait accompli situation” when a political party
expels a member who the party thinks deserves expulsion under the
party’s bye-laws. The right/power to suspend or expel a member is
inherent in a political party, provided due process is followed in
line with the party’s constitution and the Constitution of the
Federal Republic of Nigeria. We should be careful so as to not be
seen to be crying more than the bereaved! Senator Akpabio has not
alleged that his said “expulsion” from the PDP was illegal or
ineffective. He happily joined another political party at an
elaborate rally held at Ikot-Ekpene, Akwa-Ibom State, and moved on
with his political career! Case closed! The only reason/purpose
Senator Akpabio had brought out and tendered (in court) the said
“Letter of Expulsion” was to prove (before the court) that his own
case did not and could not come under section 68 of the
Constitution and accordingly, that his seat in the Red Chambers
ought to not be declared vacant. Indeed, he could have joined any
other political party other than the APC; there are over 80
political parties in Nigeria! So, discussions relating to “fait
accompli” or illegality or otherwise of the expulsion do not arise,
just as call for constitutional amendment, based on the case, is
clearly unwarranted.

Respectfully,

Sylvester Udemezue, [email protected]^[10]

(18/may/2019)

Subscribe ToNairalaw News!