Nigeria presents as one huge theatre to onlookers, sometimes, it makes them scratch their heads in bewilderment. Such was the pronouncement of Judge Inyang Ekwo of the Federal High Court, FCT, on March 8, 2022, invalidating the mandate of Governor David Umahi of Ebonyi State and his deputy, Kelechi Igwe. The governor and his deputy had announced their intention to defect from the PDP, the party on whose platform they were elected, to the governing APC, on November 11, 2020 and they followed through with that intention and defected to the APC effective November 17 2020. The learned judge anchored his judgement on section 221 (amongst others) of the 1999 constitution which states: “No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.” However, as recently as 2019, the Court of Appeal had stated in NWANKWO & ANOR v INEC & ORS (2019) LPELR 48862 (CA), that “….only a natural person can be lawfully declared and returned as a winner of an election.” This particular reasoning was not even completely new at the time. Their Lordships were simply building on and were largely following the Supreme Court precedent in AG, FEDERATION v ATIKU ABUBAKAR (2007) 10 NWLR (pt.1041) 1, 29, when the then President Olusegun Obasanjo brazenly declared the Vice President’s office “vacant” following Atiku’s defection from the PDP to the defunct Action Congress.
Thereafter, Atiku approached the Court of Appeal for a declaration on the matter by way of Originating Summons (ruling on documents as presented). The Court unanimously affirmed Atiku’s position as Vice President, stating that defection from one party to another had no bearing on his continued stay in office.
Dissatisfied, the Attorney General and the Federal Government appealed to the Supreme Court, which also unanimously dismissed the appeal making it clear that the Vice President can only be removed from office by death or through the process of impeachment; “The 1999 constitution does not provide that the President or Vice President of the Federal Republic of Nigeria, (ditto Governor and Deputy Governor by implication) shall be removed or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another party”. Well, learned Judge Ekwo, must be conversant with this particular Supreme Court decision too, which he was obliged to follow. It was a decision of a superior court; the Supreme Court no less. So, why did he not do so?
Judge Ekwo cleverly sidestepped the superior court’s judgement by harping on several extraneous sections of the constitution, which he wrongly thought empowered him to go the other way. A high court judge is in no position to probe into the reasoning of justices of either the Court of Appeal or of the Supreme Court. But, any mention of the constitution as the basis for his judgement gives him a bulletproof cover. After all, the constitution is said to be the “grundnorm” (the Almighty) that overrides everything else in the land. The constitution overrides anything anyone might have written or pronounced beforehand. Judge Ekwo’s ingenious use of the constitution in this manner is totally disingenuous. By the way, section 221 relied on by the judge has absolutely nothing to do with defection from one party to another.
It was meant to strengthen the position of political parties in campaign funding. That is precisely why it had not been cited as an authority in the previous cases before the superior courts on defections. Consequently, Judge Ekwo has put himself at liberty to re-write the law. That is ultra vires; it is beyond his powers. The judgement is bound to be set aside on appeal. What is more, his sophistry is likely to be frowned upon by the superior courts. Curiously, the police had immediately gone to cordon-off the governor’s office, preventing Umahi from returning. This is also wrong. Umahi has up to 90 days (some say three months) to file an appeal but the beneficiary of the court’s judgement also has the right to enjoy the fruits of his victory without further ado unless, and until, an appeal has been formally entered. This is where, in a more mature environment, one would give credence not only to the letter of the law but, more importantly, to its spirit. In this particular case, the spirit of the law dictates that Umahi be given the maximum leeway to exhaust the appeal process before someone else starts measuring the drapes in the governor’s lodge.
Meanwhile, it has been widely reported in the media that Umahi has indeed filed an appeal under the watchful eyes of no less than 18 Senior Advocates of Nigeria. That appears rather vulgar and totally unwarranted. Why would you employ the services of 18 highly paid SANs to litigate anything? The answer is, it is designed to intimidate the Appeal Court justices, of course. However, no justice of the court worth his salt would feel an ounce of intimidation from hired mouthpieces in the company of their paymaster. This whole theatre in its entirety bears the hallmark of presidential politics. Governor Umahi had lobbied in vain for the PDP presidential ticket for the 2023 elections. He defected to APC because the party had apparently zoned the presidential ticket to the South. And, as a matter of fact, Umahi had declared his intention, earlier in January this year, to contest the APC presidential primaries. Be that as it may, the crucial point here is about who is the right custodian of an electoral mandate. Should it be the individual or the political party? This appears straightforward, is it not? When a winner is declared, it is the name of the candidate that is announced. When a certificate of return is issued, INEC presents that to the victorious candidate, not his or her party. A mandate is a public trust given by the electorate to a public servant for a period.
In a presidential system, a governor or president’s mandate to govern is personal, and so it should. Even in a parliamentary system, it is also personal except where there is a proportional (list system) at play. In that situation, votes are allocated to parties, who’s candidates on the ‘list’ are then put forward. It is rarely talked about because it is rarely used anywhere. There is a very good reason for why an electoral mandate should remain with the individual and not the party. Governors fund political parties in Nigeria. That much is clear, even though it is utterly illegal. That is where they derive the sobriquet ‘leader’ of the party in their respective states.
Assuming there is a governor of a certain state who is determined not to funnel public funds into his party, the party then says to him, “you pay up or else”! According to the judgement delivered by Judge Ekwo, the mandate belongs to the party so the party would be at liberty to turf out the governor.
The party simply withdraws support for the errant governor, who is then forced to resign. Governors all over the country could potentially be held to ransom by their party for the duration of their stay in office. They would literally (and legally) be puppets of the political party that sponsored their candidacy. Going by his utterances and the reasons for defecting to the APC, Umahi is not exactly the poster boy for politics of conviction, but the principle at stake with this judgement rises beyond his person. It is an affront to democracy. It must (and will) be quashed.
[email protected]
All rights reserved. This material, and other digital content on this website, may not be reproduced, published, broadcast, rewritten or redistributed in whole or in part without prior express written permission from PUNCH.
Contact: [email protected]
Copyright PUNCH.
All rights reserved. This material, and other digital content on this website, may not be reproduced, published, broadcast, rewritten or redistributed in whole or in part without prior express written permission from PUNCH.
Contact: [email protected]
