Amid the plethora of positions adopted by legal experts in the country over the Federal High Court in Abuja’s ruling sacking the Ebonyi Governor, David Umahi, his deputy, Eric Igwe, in one ruling, and 15 legislators of the State House of Assembly, in another decision, last Tuesday, a Senior Advocate of Nigeria (SAN), Mr Femi Falana, says the judgement is in order.
Falana, in a statement personally signed by him, while taking his position on the order by Justice Inyang Ekwo of the High Court of the Federal Capital Territory (FCT) sitting in Abuja, noted that the trial judge was in order when he sacked the defendants on account of their decamping from the Peoples Democratic Party (PDP) on which platform they were elected into office to the All Progressives Congress (APC).
Falana, in the statement, further picked holes in the position adopted by his colleagues, and other public analysts who posited that the judgment is not backed by any constitutional provisions on defection, as they cited an example the Supreme Court’s decision on former Vice President, Atiku Abubakar.
“Contrary to the misleading impression conveyed by many lawyers, the Justices of the apex court did not endorse the defection of Vice President Abubakar. Indeed, in the leading judgment of the Court, Akintan JSC said that, The action cannot be justified by the fact that he (1st respondent) had been suspended or expelled from the ruling political party under which he was jointly elected with the President or that he was exercising his fundamental right of association guaranteed by the Constitution. What is required of him is to first resign and even after resigning from that office, he would still be precluded from dissociating himself from the collective responsibility for decisions taken by the cabinet while he was in office”, he said.
Falana added that the Court although declined to order Atiku’s sack but held that his action could fall under misconduct which would make him liable for impeachment by the National Assembly pursuant to section 143 of the Constitution.
He cited numerous cases to prove that the Supreme Court has been consistent in condemning cross carpeting and defection by Nigerian politicians, adding that the development has bedeviled the political morality of the country.
In maintaining that votes in an election belongs to the political parties, Falana presented several instances where INEC concluded election, declared a party winner of the election but could not issue certificate of return to the party’s candidate due to litigation over the authentic flag bearer of the party.
“For instance, the INEC declared the All Progressives Congress (APC) as the winner of the December 5, 2020, senatorial bye-election held in Imo North” but “was unable to return a candidate at the time as a result of several court orders for and against the two major contenders.
To that extent he argued that Umahi and his deputy were issued certificate of return based on the votes the PDP won in the election, adding that neither Umahi and Igwe had their names on the ballot.
“Even though Governor Umahi has decamped from the PDP to APC neither the INEC nor the High Court of Ebonyi State has amended the Certificate of Return to read “Nweze David Umahi of the All Progressive Congress.”
He further argued that while the governor was at liberty to exercise his freedom of association by decamping from PDP to APC, he cannot be permitted to infringe on the democratic rights of the 393, 343 citizens who voted for him as the governorship candidate of the PDP.
“Furthermore , in view of the several provisions of the Constitution and the Electoral Act which have provided for participatory democracy on the basis of majoritarian rule the defection of Governor Umahi cannot wipe out the 393, 343 lawful votes scored by the PDP in Ebonyi State”, he added.
He said what Governor Umahi should have done honourably was to resign when he left the mandate of the party that voted him into power rather than contesting the matter, saying: “You cannot get a mandate from the people who voted a party and transfer it to another whenever you wish without legal consequences. That is not just.
“It is our wish that the Supreme Court would uphold this sound judgment and bring an end to the annoying and irresponsible political prostitution in Nigeria that is not helping the growth of our democracy.
“With respect, the Supreme Court has never jettisoned its position in Amaechi’s case. Hence, in Wada v. Bello (2017) 3 W.R.N. 72; the court reiterated and upheld its earlier position in Amaechi’s case when it held that “A political party is an abstraction. It has to canvass for votes through its members as agents, in the same way it contests, wins or loses elections through a candidate it nominates who acts as its agents. There is no provision for independent candidates. The candidates nominated to contest at an election by his party acts as an agent of his party. He is, as it were, an agent of a disclosed principal and as far as third parties are involved, benefits and liabilities accruing to the candidate (as agent) belong to his party (the disclosed principal).
“Thus, in line with the tenets of the rule of law the INEC has been guided by the decisions of the Supreme Court in Amaechi v INEC and Wada v Bello. For instance, the INEC declared the All Progressives Congress (APC) as the winner of the December 5, 2020, senatorial by-election held in Imo North. The returning officer reportedly announced that APC polled a total of 36, 811 votes while PDP came second with 31,903 votes but the INEC Resident Electoral Commissioner in Imo, Professor Francis Ezeone said that the commission was unable to return a candidate at the time as a result of several court orders for and against the two major contenders. Interestingly, the commission did not declare the candidate who won the election until the Supreme Court affirmed Frank Ibezim’s candidacy, several months after the election,” Falana said.