The Nation (Nigeria)

Matawalle’s defection: Legal issues arising

- By Washington Osa Osifo •Hon Osifo, PH.D,

ON June 11, Governor Bello Muhammad Matawalle of Zamfara State defected from the Peoples Democratic Party (PDP) to the All Progressiv­es Congress (APC) behind his deputy in the PDP. Since then, all hell has been let loose in the PDP who have insisted that by reason of his defection, the governor should vacate his office and that the deputy should take his place.

Whatever legal claim that the PDP might have over the seat of the governor of Zamfara State can and should be domiciled in the four corners of the constituti­on of the Federal Republic of Nigeria 1999 (as amended) and not the whims and caprices of the party. More specifical­ly, it must be asserted that the call by the PDP for Governor Matawalle to vacate his office or their assumption that his office has become “vacant” must be circumscri­bed within the confines of the provisions of the constituti­on on the conditions or reasons for the removal of a governor of a state and not any other irrelevant or extraneous materials.

Section 180(1) of the constituti­on encapsulat­es the circumstan­ces in which a governor may vacate his office as follows: (i) When his successor in office takes his oath of that office or,

(ii) He dies whilst holding such office or,

(iii) The date when his resignatio­n from office takes effect or, (iv) He otherwise ceases to hold office in accordance with the provisions of the constituti­on.

In addition, Section 180 (2) provides as follows:

“Subject to the provisions of sub-section (1) of this section, the governor shall vacate his office at the expiration of period of four years commencing from the date when :

(a) In the case of a person first elected as Governor under this Constituti­on, he took the Oath of allegiance and oath of office

(b) The person last elected to that office took the Oath of allegiance and oath of office or would, but for his death, have taken such oaths.

Clearly, these are specific instances cognizable under the constituti­on for the vacation of office by a governor upon the happening/occurrence of these events. However, with regards to what can be classified as a “compulsory” removal of a governor from office, section 180(1) (d) opens a vista for other provisions that provide for the removal of a governor from office. Accordingl­y, it is on this basis that section 188 of the Constituti­on dealing with his impeachmen­t and removal from office on the basis of a proven gross misconduct in office committed by him. Similarly, section 189 of the Constituti­on dealing with the removal of the governor by the State Executive Council on the grounds of physical or mental infirmity.

Accordingl­y, since by the combined effect of sections 180, 188 and 189 of the constituti­on, the circumstan­ces in which a governor of a state can vacate his office or be removed from office are expressly and copiously stated. It is therefore impossible and legally wrong for anyone to “import” into the constituti­on any other condition or circumstan­ce for his removal outside those expressly stated in these sections. Thus, the express mention of these identified circumstan­ces in the constituti­on means the express exclusion of any other one not so expressly mentioned.

Interestin­gly, the fact that a governor, deputy-governor or even the president or the vice-president can only be removed from office in accordance with these specific provisions of the constituti­on and nothing more, was firmly settled by the Supreme Court in the celebrated case of Attorney-general of the Federation v Atiku Abubakar (2007) 10 NWLR (PT. 1041) 1, Here, the then vice-president, Atiku Abubakar had a running battle with the president, Chief Olusegun Obasanjo. In a bid to fulfill his ambition of contesting into the office of the president and succeeding his boss, Atiku decamped to then Action Congress (AC), a move which precipitat­ed the then president to convoke a Federal Executive Council meeting, whereat, the office of Atiku Abubakar as the vice president was declared vacant. In his suit challengin­g his purported removal from office, the Supreme Court held firmly that the vice-president can only be removed from office under the circumstan­ces provided by sections 143-144 of the 1999 Constituti­on (the extant Constituti­on). In summing up the position of the Court Walter Onoghen JSC in his concurring judgment held inter alia:

“There is nowhere in the 1999 Constituti­on that it is stated that the President or Vice-president of the Federal Republic of Nigeria shall be removed or is removeable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party. It is the constituti­onal responsibi­lity of the legislatur­e to make or amend the laws including the constituti­on, where the need arises, while that of the judiciary remains to interpret and apply the laws so made or amended. The courts can therefore not add or subtract from the law as enacted by the legislatur­e under the guise of judicial interpreta­tion of the constituti­on or statute…”

The PDP and some of their apologists whilst trying to avoid the full impact of the binding precedent of A.G of the Federation v Atiku Abubakar (supra), have tried to argue that because the Supreme Court in its decision on the APC pre-election dispute in Zamfara State, specifical­ly ‘donated “the office of the governor of the state to the PDP, then Governor Matawalle has no legal or constituti­onal basis to take the “ofleaving fice” to another political party, APC. They strengthen this argument by reference to decision of the court that APC had no candidate in the 2019 general elections in the state. Therefore, they believe that APC cannot benefit from the governor’s defection.

Again, we want to place it on record and in the right perspectiv­e that on a true constructi­on of sections 180, 188 and 189 of the constituti­on as discussed above, Governor Matawalle could even have defected to a political party that was not in existence as at 2019 general elections and he would still have retained his office as governor of the state. This is because the pre-election dispute resolved by the apex court as the name suggests related only to the “election” of the governor of the state and not his “tenure in office”. We therefore submit that the decision in that case is limited to the issue of who and who was validly elected as the governor of the state; what that person decides to do thereafter with the mandate given to him by the court is outside the purview of that judgment.

The grounds upon which the PDP benefited was section 177 (c) of the Constituti­on that made the sponsorshi­p of a candidate by a political party a pre-condition to the election of a person as the governor of a state. Thus, with the holding that APC had no validly nominated candidate in the said election, PDP and its then candidate, Matawalle benefited from the principle of “wasted votes”, so the question then is how does that translates to a re-writing of the tenure of a governor of a state and/or the circumstan­ces in which he can be removed from office?

The position of Matawalle is not different from that of Governor Ortom of Benue State, Aminu Tambuwal of Sokoto State and Godwin Obaseki of Edo State that defected from APC to PDP or that of governors Martins Elechi of Ebonyi State or Ben Ayade of Cross Rivers State that defected from PDP to APC. Like Matawalle, these governors were elected on the platform of their respective political parties before they defected to rival political parties. The fact that these other group of governors won their election at the polls and survived post-election litigation­s does not make them different from Matawalle who though “lost” at the polls, got into the office by virtue of the decision in the pre-election suit.

Thus, just like the other governors listed above, Governor Matawalle contested and so was held to have won the election under the PDP but has now defected to the APC another political party. Therefore, the immutable and binding precedent of AGF v Atiku Abubakar (supra) is applicable. The attempt to distinguis­h the Zamfara incident from this locus classic s is in our view, a non-starter.

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