2023: PDP Tackles APC Over Umahi, Ayade, Matawalle’s Defection

RELATIVE CALM IN CROSS RIVER

In Cross River State, where Governor Ben Ayade is also facing litigation over his defection from the PDP to APC, things appear to be relatively calmer than in Ebonyi. Special Adviser to the Governor on Media, Christian Ita, described as false the reports that the governor is divided over his party affiliations, following the judgement on his Ebonyi counterpart. He told THEWILL that the governor did not at any time swear an affidavit that though he defected to the APC, he was still a PDP member.

“The governor has said repeatedly that he is a card carrying member of the APC. Currently, he is the Chairman of the Digital Communication Committee of the APC National Convention. So all is calm here,” Ita told THEWILL.

GOVERNORS IN THE EYE OF THE STORM

Although Governor Umahi’s case is currently on the front burner, Governor Ben Ayade of Cross River State and Governor Bello Matawalle of Zamfara also have defection cases hanging on their necks. Matawalle, defected in June 2021 without his Deputy, Mahdi Aliyu Gusau. Gusau was later impeached by the state lawmakers a fortnight ago.

Also, Matwalle’s case has gone farther than that of Umahi and Ayade. For Zamfara, a Federal High Court sitting in the state capital, Gusau, in February ruled that it lacked jurisdiction to hear the case and ruled that only a tribunal or the State House of Assembly could remove the governor because he defected to the APC. Counsel to the plaintiff, J.C Shaka, said the PDP would appeal the ruling.

Currently on the front burner is the Umahi case whose pending motion is set for hearing on Monday, March 21, 2022.

On that day, Justice Inyang Ekwo of the Federal High Court, Abuja, who had on March 8, in a judgment, ordered Umahi, his deputy, Igwe, and 16 lawmakers to vacate their office and seats, will allow the respondents to file a counter to the application for stay of execution filed by Chukwuma Ma-Chukwu Ume, SAN, counsel to Umahi and his deputy.

Counsel to the PDP, James Onoja, had informed the court of their intention to respond to the new motion on stay of execution filed by Umahi and Igwe.

On March 10, Governor Umahi and others sought an order of the Federal High Court, Abuja, to stay the execution of its judgment directing them to vacate their offices over their defection to another political party. The judge also directed INEC to immediately receive from the PDP the names of its candidates to replace them.

In a motion on notice filed by their counsel, Ume, the applicants also prayed the court to stay the execution of its order directing INEC to receive other names in their place or hold a governorship election in accordance with Section 177(c) of the 1999 Constitution.

Umahi and Igwe, in the motion on notice dated March 9, equally sought an order staying the execution of the order of court directing INEC to immediately declare the persons nominated by the PDP as governor and deputy governor of Ebonyi, respectively.

They further urged the court to stay the execution of its order restraining the INEC from recognising or continuing to recognise them as governor and deputy governor of the state, pending the hearing and determination of the appeal dated and filed on March 9, 2022 by the appellants, among others.

LEGAL VIEWPOINTS FOR AND AGAINST DEFECTIONS

Two Senior Advocates of Nigeria, Chief Mike Ozekhome, notably counsel to Governors Matawalle and Ayade, and Femi Falana have written different positions for and against the governors’ defections.

Citing many election petition cases to buttress his argument, Ozekhome said that votes belong to a candidate and not a political party as has continued to be cited in an often quoted Supreme Court ruling on Amaechi Vs INEC

He said, “It is not only the registered voters of a political party that cast their votes for a President, Vice President, Governor or Deputy Governor. Many non-politically partisan persons also vote; just like opposition party members who may prefer a particular candidate, even though he is not in their party.

“It is therefore not correct to hold that votes scored by a candidate belong to a political party and therefore not transferable. The courts have since gone over the era of Amaechi Vs INEC, where the Supreme Court had held that votes cast in an election belong to a political party. Section 141 of the Electoral Act, 2010, has altered that section, by providing that for a candidate to become governor, he must have participated at all stages of the election. This includes primaries and the general governorship election.”

According to Ozekhome, “The appellate courts have since held again and again that votes cast in an election belong to a live candidate and not the political party which merely serves as a vehicle that enthrones candidates.

“The Judge, in his judgement, had agreed with the PDP, which relied on sections 221, 177(c), 106(d) and 65(2)(b) of the Constitution to substantiate its argument that votes belong to the political parties; and it is impossible for candidates to exist without a political party. The case of NGIGE V. AKUNYILI (2012) 15 NWLR (PT.1323) 343 @ 357-376, which came much later overruled this position. The court held in that case that: “…It is my considered view that the Appellant in relying on the provision quoted above (section 211 of the Constitution), has conveniently lost sight of the underlined words, which show that a political party canvasses for votes on behalf of the candidate. In other words, a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that is against the backdrop of this that the Electoral Act (Supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election and further provides for the means of challenging the return of the candidate (and not his political party…”(Emphasis supplied).

Falana, SAN, on the other hand, made two submissions, one on the defection of Ebonyi 16 and the other on the governor and his deputy.

On the lawmakers, he cited section 68(1)(g) of the 1999 Constitution (as amended), which expressly prohibits crosscarpeting by legislators and provides for circumstance(s) in which legitimate defection is permissible; a division that makes it impossible for the legislator to function. For the defection of a governor and his deputy, Falana contends that it is the party and not the candidate that owns the votes of any election, adding that the famous Supreme Court ruling on Amaechi Vs INEC, remains relevant.

He said, “Whereas in the 2019 governorship election in Ebonyi State, the PDP garnered 393,343 votes across the 13 local governments areas of the state, its closest challenger, the APC, got 81,703 votes. After the PDP had emerged the winner of the election the certificate of return was issued in the name of its flag bearer by the INEC Chairman, Professor Yakubu Mahmud, who stated ‘I hereby certify that Nweze David Umahi of Peoples Democratic Party (PDP) has been elected to the office of Governor of Ebonyi State…’

“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 Progressives Congress”!

Citing many legal cases to back his viewpoint, Falana, last week, stated: “It is interesting to note that some lawyers have maintained that Governor Umahi has exercised his freedom of association by decamping from PDP to APC. While the governor’s freedom of association is constitutionally protected, 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, have been completely ignored. Or are we to believe that the votes scored by the PDP have been merged with those of the APC since the PDP candidate decamped to APC? Curiously, in making a mockery of the democratic rights of the people of Ebonyi State, the critics of the judgement of Justice Egwu have failed to advertise their minds to the undeniable fact that the majority of the voters actually exercised their franchise in favour of the PDP. After all, the names of the candidate David Umahi and his deputy were not on the ballot papers.”

Taking a look at the viewpoints of the eminent SANs, a constitutional lawyer, Mr Mack Ogbamosa, said both positions are right in points of law.

He told THEWILL, “The point at issue, however, is that there is a lacuna in the Constitution. The Constitution is silent on how a governor can be removed from office through defection from one political party to another. That is why it is subject to interpretation and the cases would have to be tried until we get a final judgement or the Constitution is amended. So when Governor Umahi insists that the ways to remove a governor are listed in sections of the Constitution, he is also right.”

Continuing, Ogbamosa added, “What the Supreme Court ruling on Amaechi Vs INEC established was that votes are cast for parties and not individuals. And when that ruling was made, Amaechi was yet to become a governor. As at today, what obtains is that it is political parties that votes are cast for in any election. On the ballot are the names of political parties, not individuals, for whom voters cast their votes.”

Ayade’s adviser, Ita, a lawyer himself, disagrees. “What we are witnessing in the defection cases is an assault on the Constitution. Section 308 grants immunity to governors from prosecution on any criminal or civil matter.

“The Supreme Court is not superior to the Constitution. Section 40 of the same Constitution talks about the right of association. The Supreme Court has moved on since the often cited Amaechi Vs INEC case and the electoral law has been amended. There are High Court cases in Abakaliki and in Zamfara that said the courts had no jurisdiction because of Section 308 of the Constitution.”

Citing the means by which a governor can be removed from office, namely, through impeachment, death and resignation, Ita said, “The democracy we are practising is the same in the USA and the UK. Recently, the goveranor of Virginia defected from the Democratic Party to the Republican Party after nine months in office. Was he removed from office? A parliamentarian in the UK defected over the Prime Minister’s Borin Johnson COVID-19 party saga. Was he removed?”

“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 Progressives Congress

WAY FORWARD

“Everybody agrees that this is going to be a long haul,” Ita said, but he asserts that the cases would be decided in the favour of the defectors. “The Supreme Court is not superior to the Constitution,” he said.

Ogbamosa is inclined to support Falana’s position that until the lacuna about the defection of a governor in the Constitution is sorted out through amendment, political parties are owners of votes cast in elections. But he also concedes, “How the issues are canvassed in the court will go a long way in resting this matter.”

For Ebonyi lawmaker, Aleke, “the court pronouncement that sacked the 16 Ebonyi State House of Assembly members still stands until they get a stay of execution or get favourable judgement from the appellate court.”