Constitutionality of Tambuwal’s defection: Have the courts not spoken?

The title to this article flows from the nature of our legal system, since it is only when the courts have not spoken that Dicks and Harrys can proffer their own understandings of provisions of our written laws.

However, in making the above quoted statement, Justice Holmes, Jr., the most celebrated advocate of legal realism in American history, was suggesting that the true meaning of any written law as to justify a given action or use of certain force is determined by judges, and until a judge has done that on a legal issue, any action based only on the letters of a written law is essentially no more than an exercise in trying to guess the way a judge will rule in fact in the matter. In crass Nigerian parlance, it means that the operative part of a written law like our Constitution is not what that Constitution says, but what the courts view it as saying. Thus, when public officers assume office, what they do essentially is to swear to uphold the Constitution of the Federal Republic of Nigeria, as interpreted by the courts.


If the question is asked of the authoritative LAW on defection by a member of a legislative House in Nigeria, most people always cite Section 68(1)(g) of the 1999 Constitution. To support the view that the section is simply one of the most cited, a simple Google search of “Section 68(1)(g) Nigeria” returns an amazing 3.4 million results. But because when you lock up two lawyers in a room and ask them to tell you what exactly that section means, they will certainly come up with no less than three different interpretations. So under our jurisprudence (and this is not always the case in all legal systems), the courts to the rescue.
But have the courts not interpreted this section on defection? Of course, they have, including the Supreme Court. Many commentators seem oblivious of this fact and little reference is made to court rulings on the section. Attempt is made here to draw attention to this gap in our debate. As far as defection is concerned, the right thing to do in Nigeria today in any discourse is to make whatever argument one wants by citing the section but as interpreted by a certain court. Before relating the pronouncements of our courts, we all know Section 68(1)(g) is all about tenure of seat of legislators and it provides that a Senator or member of the House of Representatives (or a member of a State Assembly – S.109(1) (g)) must vacate his seat if he decamps to a new party. But there are exceptions and the section continues: “Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored”.
Supreme Court
As the saying goes, everyone knows the rule, only lawyers know the exceptions, the Supreme Court as far back as 1983 dwelt more on the two exceptions where a member will not lose his seat as a result of cross-carpeting. The import of the decision of the Supreme Court is that the general rule is to the effect that as a legislator, you lose your seat when you defect. If however you can show either of the two circumstances then you can save your seat. That is, if there is a division/ faction in your former party or a faction of your old party decides to merge with another party. Delivering the unanimous decision of the Court, the revered Justice Aniagolu referred to the then equivalent of Section 64(1)(g) when he proclaimed the law:
“But under the proviso to the said section 64(1)(g) if his membership of the new political party occurred because- (i) THERE WAS A DIVISION in the political party which sponsored him and as a result (a) he joined the new political party; (b) he and his dissidents or faction joined the new political party; OR (ii) THERE WAS A MERRGER of two or more political parties with – (a) the political party which sponsored him (b) his own faction of the divided political party which sponsored him, he does not lose his seat.”—FEDECO Vs. Goni, 1983. Emphasis not mine.
The Federal High Court Abuja
The Supreme Court’s clear pronouncement should have rested this non-controversy on defection but this is the era of pre-2015 and so a few other cases on the same section came up in 2014. Notable among them were the two cases before their Lordships, Justices Ademola and Mohammed of the Federal High Court, Abuja. We may not dwell so much on the two cases as none is conclusive as yet. One is on appeal and final judgment is being awaited on the other. Thus, status quo has to be maintained for now. But the suspense coming from the Abuja courts can be dispensed with by the final judgments of the same Federal High Court sitting in Ilorin and Sokoto. The remarkable thing is that in all the non-Abuja cases of the Court, all the feuding parties were satisfied with the judgments and no appeals are currently pending. That means finality of the law on matters of defection among PDP and APC members.
The Federal High Court, Ilorin
In his 37-page interpretation of the 82-word section, delivered on Thursday 26 June, 2014 Justice A. O. Faji, one of the prides of the Nigerian judiciary, authoritatively held: “On the whole, I find that the defection of 1st to 20th Defendants on 22/1/2014 from PDP to the APC being as a result of a division within the PDP is constitutional. They cannot therefore be ordered by this Court to vacate their seats… This is because the seats of the 1st to 20th Defendants are not vacant neither have they been vacated.” Emphasis supplied.In that suit, a PDP member of the Kwara State House of Assembly sued 20 new PDP members of the Assembly including their Speaker who had defected to APC, seeking to declare their seats vacant and for INEC to conduct bye elections.
The Federal High Court, Sokoto
While Justice Faji’s refusal to declare the seats of the defecting members vacant was anchored on division within the PDP, the Sokoto judgment was anchored mainly on the fact that the PDP faction of the defecting Speaker and members of the Sokoto State House of Assembly had merged with APC. The PDP and two of its members sued the 27 newly defected members to APC seeking similar reliefs with those of the  Ilorin matter. On a sunny Thursday July 3, 2014 Justice R.M. Aikawa ruled that “at the time the 1st – 27th defendants defected to APC, there was not only a division but also a faction in the PDP. I also believe their averments that the said defection was as result of the merger of their faction of the PDP with the 31st defendant.”Emphasis supplied.
Justice Chukwu’s judgment
Prior to the unnecessary problematisation of defection was the issue of whether there was division in PDP. The PDP and, surprisingly, its lawyers had put words in the mouth of the Honourable Justice E. S. Chukwu that he said there was no faction in PDP. In his 75-page judgment in a case between then Alhaji BamangaTukur’s PDP and Alhaji Kawu Baraje’s PDP, the Judge recognized Tukur’s faction and disbanded Baraje’s. In his well-reasoned judgment, Justice Chukwu restrained Alhaji Baraje and all his agents and privies “from presenting, parading and holding out themselves as National Officers of the Peoples Democratic Party and they are accordingly restrained from operating parallel National, State, LGA and Ward Secretariats of the Peoples Democratic Party (PDP).” Every subsequent judge that had opportunity to interpret what Justice Chukwu had said agrees he never said there was no faction in PDP. He only recognized one faction and disbanded the other. And that means in fact there is faction, as stated by his brother judges.
Justice Aikawa had this to say: “I have read the judgment of my learned brother E. Chukwu, J., which was supplied to the court by learned counsel to the plaintiffs. My understanding of that case is that the court did not declare that there were no factions or division in PDP. Rather it only made pronouncements as to which of the factions is valid. In effect therefore the decision confirmed that there was division and there were factions.”So held Justice Faji too: “It therefore seems to me that at all material times there was a division within the PDP. Rather than show that there was no division therefore, the decision brings out in bold relief one of the fall-outs of that division, if two groups within a party can be jostling for its Principal Offices with each claiming same as his.”
But even if Justice Chukwu ruled there was no division in PDP, his brother judges have now ruled there was division. The issue now is whether Tambuwal can come under any of the two windows: Justice Faji’s window on division in PDP, or Justice Aikawa’s on merger of nPDP in Sokoto with APC.
Tambuwal’s defection
I have gone to this length just to bring to our attention the materials that are necessary for everyone to shape his own opinion. And I have heard comments to the effect that Tambuwal’s defection to the APC would have been a non-issue if the courts had ruled on it. Now that we know the courts have indeed ruled on the issue of defecting from PDP to APC, the defection is indeed a non-issue but some would want to cry wolf where there is none.
In the brief speech announcing his defection on October 30, the Speaker based his action on political events in Sokoto PDP. Nigerians are all aware that one of many factions of PDP in Sokoto defected to APC and there is still battle raging on among the remaining factions. As late as October, the PDP BOT Chairman, Chief Tony Anenih, was widely reported to be in Sokoto as the head of PDP Integration Committee to reconcile members of various factions. For me the argument PDP should be making is that Tambuwal may not base his defection on division because as at 30th October, 2014 that division has been mended. But that is merely an argument and for you to visit him with coercive power of the state as to withdraw his security, you need a court order.
Now even if, for the purpose of argument, he cannot come under the window of division, what about merger? The merger of Sokoto PDP with APC has not been reversed!If the Speaker’s membership of the House of Representatives cannot be saved by the Ilorin judgment relating to factions in PDP, it is undoubtedly saved by Justice Aikawa’s Sokoto judgment on the fact that his own faction of the PDP has merged with APC. Since Speakers of Kwara and Sokoto States Houses of Assemblygot judgment in their favour, subsequent speakers took advantage of the judgments such as Speaker JumokeAkindele of Ondo State House of Assembly who decamped from Labour to PDP, and Speaker AhmaduFintiri of Adamawa State House of Assembly who decamped from APC to PDP. If Tambuwal would be denied the fruit of the Sokoto or Ilorin judgments, then it is elementary that only the courts can so deny him.
But even if all the above facts are by some reasons not convincing to some people, the fundamental issue is that the situation is one of dispute: Speaker has decamped, PDP is justifiably grieving about it and wants to deal with him, who between them is right? Where there is such a dispute, only the courts can resolve it, not an official of government. The mere fact that Nigeria operates a written constitution is an indication that its people are made up of fundamentally differing orientation. And the only referees are the courts.
Yes, it has been said Nigerians are gullible and that is the reason a govern­ment official would do violence to the Constitution he would come out the next day to proclaim that his action was based on the Constitution. However, on the withdrawal on Tambuwal’s security details, it seems Nigerians are wising up and they are not buying the explanation that it was done pursuant to a S. 68(1) (g). From the reactions so far, Nigerians are beginning to draw the line between politics or politicking and constitution­alism. There is a near consensus that Tambuwal has done nothing wrong and that he is still the Speaker.
Under our legal system when an erudite legal mind strives to predict what the courts will say on a new matter, we call it an “academic exercise”; when non-legal minds do the same, we call it “pedestrian”, but I am at a loss over how to describe a situation where someone conjures up something as the lawAFTER the courts have spoken on the particular matter. It amounts to contempt of the court. Indeed, it is a race towards anarchy.
These quasi-judges should note that for all the hundreds of defections that have occurred in the Republic history of Nigeria, only one has been declared vacant by the court, the Abegunde’s case relating to a former member of Labor Party in the House of Representatives from Ondo State. Even that is not final as it is currently pending at the Supreme Court.
And although I am only an Assistant Professor of law, I can in fact prophesy that when the courts, which have jealously protected their turf, have the opportunity, they will descend heavily on such people or institutions that try to usurp their powers.If Nigeria is still a constitutional democracy, I will still bet that the courts will order for the return of Tambuwal’s security details. The courts have done it before. Am referring to withdrawal and return of security details of Governor Kwankwaso, Senator Saraki and many others. One can imagine what the effect would be on our nation when a wrongfully reconvened House “passes” the PIB, the Electoral Act amendment for the forthcoming elections, and the 2015 budget. During the Shagari era the courts struck down wrongfully passed revenue sharing formula for the federation and it will do so again on any infraction of due process.
True, losing the number four man to a rival party is a bitter pill to swallow but it is for PDP to be mindful of due process of the law in its responses. We all remember that but for Justice Ademola’s court that stopped APC from changing leadership of the House when it had majority, the opposition would have been in control of the House a long time ago. PDP has benefitted from judicial intervention, it cannot now undermine it. The current and planned responses of government to what may soon become Tambuwalgate would not succeed in court but would merely add to the statistics of embarrassing absurdities being unleashed on Nigeria. The issue of defection in Nigeria today is settled as the courts have spoken on it adequately and it is for all to live with it. Mr. President swore to uphold the Constitution as interpreted by the courts not by his lordship Suleiman Abba, the Acting Inspector General of Police.