]NEWS FEED[ On Impeachment And Defections By Femi Falana

Introduction

The crisisof misgovernance inthe country hasbeen accentuated by the official impunity of members of the ruling class.

Hence, the executive is justifying disobedienceof courtorders while legislators regularly suspend their colleagues and carryout impeachment of Governors outside the ambit of the Constitution.Even thoughit has been decided by the Court of Appeal that alegislativehouse lacks the powertosuspend a legislator bothchambers of the national assembly andstate legislative houses havecontinued to suspend memberswho disagreewith theircolleagues. And contrary to severaldecisions whereinthe Supreme Court has meticulously outlined the procedurefor impeaching governors by notless than two thirds majority of the members, 8 out of 30 members of the Benue StateHouse of Assembly are said to have concluded plans to impeachGovernor Samuel Ortom.

Instead of calling outthe members of the APCinvolvedin the charade, President Buhari has washed offhis handslikePontius Pilate. Sincethe recent defection of anumber of legislators from the APC, the ruling partyhas generated some controversy. It is pertinent to examinerelevant provision of the Constitution and decided judicialauthorities onthe matter.

Impunity of Legislators

By virtue of sections39 and40 of the Constitution which guarantee the fundamentalrightsof expression, conscience and opinions aswell asfreedom of association every citizensis entitled to toholdpolitical opinions andbelong to political associations andchangesuch opinions andassociation atany time.Butsuch freedom is circumscribed inthe caseof elected legislators. Although crosscarpetingby legislators wascommonin the first republic,it hasbeen prohibited by the 1999 Constitution.Thus,in Abegundev Ondo StateHouse of Assembly (2014) LPELR23683the appellant,a memberof the House of Representatives had decamped from the Labour Party to Action Congress of Nigeria. In justifying his defection the appellant claimed that the Labour Party in Ondo Statewas factionalised.

Since the division of the Labour party was limited to Ondo state the supreme courtheld that itdid not affectthe partyatthe national level tojustify the defection.It wastherefore decided that the appellant had losthis seatin the House of Representatives.Relying on the case of Atiku Abubakar vAttorney General of the Federation (2007) 4 SC(part ii) 62the supreme court held that it isonly a division,factionalisation or fragmentation that canmakeit impossible or impracticablefor a party to function that canjustify the defection of alegislator from one party to another, otherwise the defectorautomatically loses his seat.

From the clear andunambiguous pronouncements of the apex court, adivision in apolitical party envisaged by the Constitution cannotbe afigment of the imagination of prospective defectors.Thedivision must make it practicallyimpossible for the party to function.Inthe instant case,the APCwas notsplitto the extent that two parallel congresses were held leading to the emergence of two parallel sets of officers atthe national, state andward levels.

A recent example of the factionalisation or divisionof a political partywas recently witnessed whenthe PDP broke into two factionsled by former governors Sheriff andMakarfi until the factionled bythe latter was recognizedby the Supreme Court.No doubt, the members of the R-APC were dissatisfied with the running of the affairs of the APCbut theydid not holdany parallel convention whichwould have produced elected officials of the aggrievedmembers. To that extent the defection of of the R- APClegislators fromthe APCto the PDPand ADC canbe impugnedunder section68 (1) (g) of the Constitution.

However, since the APChad allowed legislators to decamp from the PDPto join itsfold in the recent past the ruling party lacks the moralandpoliticalright to condemn the defection of the R- APClegislators.Butthe crass opportunism of the APCcannot legitimize the prostitutionof the political system. Having decamped fromthe APCwhich sponsored theirelections,the R- APCdefectors ought toresign from the legislativehouses and seek afresh mandate fromthe electorate.In order to curb the dangerous trend some aggrieved members of the constituencies of the defectors oughtto contest the legal validityof the refusal to resign fromthe affected legislative houses.

Legal Validity of Defection by Governors

However, the Constitution is silenton defection by the President andstate governors from the politicalpartieswhich sponsored theirelection.Hence, in Atiku Abubakar vAttorney General of the Federation (2007) 4 SC(Pt II) 62 the SupremeCourt held that the defection of the appellant fromPDP tothe former Action Congress of Nigeria was not illegal andunconstitutional. On the basisof that judicial authority the decisionof governors to dumpthe political partieswhich sponsoredtheir elections was notchallenged.I have therefore canvassedthe argumentthat the defection of Governors Tambuwal, Ortom and Ahmed of Sokoto, Benue and Kwara statesrespectively from the APCtothe PDPcannot be saidto be illegal or unconstitutional.

It wouldbe recalledthat five governors had decampedfrom PDP to APCin2014. While relying on the decisionof the Supreme Court in the case of Atiku Abubakar v Attorney-General of the Federation (supra) Iexpressed the viewthen that the defection of the governors couldnot be successfully challenged by the PDP. Inthe same vein,ihave opined that the defection or return of APCgovernors to PDP cannot be questioned bythe APC. Since myviewwas limited to decamping governors in2014, it is the heightof intellectual dishonesty on the partof Dr. Doyin Okupeto accusemeof inconsistency. Whateverthe agents of mischief may wantto believe Ihave been asconstant as the northern starasfaras the interpretationof the Constitution is concerned.

SenatePresident can only be Removed byTwo Thirds Majority of Senators

The plannedremovalof the Senate President, Dr. Bukola Saraki bythe APCshouldbe stopped asit cannot stand. The attention of APClegislators ought to be drawnto section52 of the Constitution whichprovides that the President andDeputySenate President canonlybe removed by the resolutionsupported bythe votesof notless two thirds majority of the entiretyof the members of the Senate.

Since the APClegislators cannot muster the required two thirds majority of the votes of the entire members,the plan to impeach Senator Saraki shouldbedropped forthwith.Again, the scenario playing outinthe Senateis without precedentinour political history. Whenthe accordof the National Party of Nigeria and Nigeria Peoples Party collapsed in the secondrepublic,the Speaker of the House of Representatives, HonourableUmeEzeoke of the NPP,aminorityparty inthe House wasnot forced toresign. The election of Honourable Aminu Tambuwa asSpeaker was made possible by the allianceof PDP and ACN legislators andwhenhe decamped fromthe PDP to APC, HonourableTambuwa was not asked tostep down fromthe office of the Speaker.

Therefore, the APCisestopped from demandingthe resignation of Dr. SarakiasSenate President

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