Should the Senate President, Dr. Bukola Saraki and other members of the National Assembly, who ported from the ruling All Progressives Congress (APC) to opposition Peoples Democratic Party (PDP) lose their seats? Lawyers say no, yes. TUNDE OYESINA reports
Members of the wig and gown profession at the weekend could not agree on constitutional provisions which will either force or make 20 senators including the Senate President, Dr Olubukola Saraki to lose their seats and vacate their positions at the National Assembly for defecting from their political party—the All Progressives Congress (APC) to the opposition Peoples Democratic Party (PDP).
Also, the lawyers disagreed on clarion calls by the ruling APC and some politicians that Saraki and the defected senators should vacate their seats following their defection.
Saraki alongside, Dino Melaye and 20 other Senators, Kwara state governor, Abdufatai Ahmed and his Benue and Sokoto states counterparts, Samuel Ortom and Aminu Tambuwal last week dumped their party, the All Progressives Congress for the opposition PDP.
Others are; Barnabas Gemade, Murtala Nyako, Ibrahim Danbaba , Shitu , Nafada, Monsurat, Isah Misau, Suleiman Hunkuyi and others.
Their grouse was that APC was being factionalized as it became extremely difficult for them to pursue their political careers under the ruling All Progressives Congress.
But their colleague Senate Leader, Ahmed Lawal opposed their defection, describing their action as inimical to the nation’s democratic process.
He was echoed by the APC National Chairman, Adams Oshiomhole, who called on Saraki to vacate his seat on the ground that he was no longer a member of the ruling APC following his defection from the party through which he got to the exalted seat of the Senate President.
Oshiomhole in a briefing in Abuja insisted that what was honourable for the Senate President to do was to vacate his seat, having left the party, describing it as a matter of honour for Saraki to leave “the crown” in the family it belonged to.
Oshiomhole said: “But whatever is the reason, we can decamp from party, but we can’t decamp from Nigeria.The only thing is that there are other consequential issues that every man or woman of honour who had taken such decisions would be expected to follow through. I mean you should not collect a crown that belongs to a family and wear it on behalf of the family if for your personal reasons which he has enumerated that he has gone to another family. It is just a matter of honour to leave the crown in the house that the crown belongs to.”
Oshiomhole was supported by an activist lawyer and Senior Advocate of Nigeria, Mr. Femi Falana, who citing, Section 68 (1) (G) of the 1979 and the 1999 Constitution, said the only exception for cross-carpeting was when the political party was in trouble and fractionalized.
He said: “So, if you are elected on the platform of party ‘A’ and you don’t want that party again, you must go and seek fresh mandate under the platform of your new party.
“The only proviso is that if your political party is in trouble and is fractionalized, major division, you can crossover, but not a division instigated for the purpose of exiting. In the case between Abegunde and Ondo State House of Assembly, the Supreme Court made the point in 2014 that the division envisaged by the constitution must affect the structure of the party; in which case, there will be two congresses that will produce two chairmen at the national and state executives that have totally splinted into two.
“So, you don’t just address a press conference and say we disagreed with the running of our party and in the next moment, you say you have defected. That is not it.”
But another Senior Advocate of Nigeria, Chief Mike Ozekhome disagreed.
According to him, there was no provision of the law to justify such view, insisting that there was no legal or constitutional basis in law for Saraki to resign or be removed as president of the Senate and Chairman of the National Assembly simply because he had decamped or defected from APC to PDP.
Citing Section 68(1) of the 1999 Constitution, Ozekhome said only members of the 109 Senators and 360 members of the House of Representatives who had lost their Nigerian citizenship or made a minister or decamped from their political party to another party will automatically lose their seats.
Besides, he said Section 68(1) (g) of the 1999 Constitution permitted a legislator to decamp or cross-carpet from his original party under whose platform he contested and won election to a new party if he had shown that there had occurred a division or fractional ization of his original party or that his party had merged with another party or a faction of another party.
Ozekhome said: “It is a question of fact and not of law, if there exists a division in a party. In the case of APC, 24 states held parallel congresses before the national convention. Can there be any better or stronger evidence of a division in a party?
“I think not to add to the gravity of this internal implosion and vertical and horizontal schism, a new wing, R-APC, emerged from the APC at the national level. It is headed by no less a person than Buba Galadima, a tested political strategist, Buhari’s right hand man and former Secretary of Buhari’s CPC.
“Although APC leadership had dismissed the breakaway factional members that have Fecund Kassim Afegbua as their spokesman, the wind was removed from their sail when they commenced frantic fire brigade appeasement missions to the respective homes of these aggrieved members.
“They did these nichodemusly at wee hours of the night, even when they had claimed they would not lose sleep. They lost plenty sleep. The pandora box has since been broken as three governors, Senate president,15 Senators, over 40 House of Representatives members, Local government chairmen, Councillors, Commissioners, etc, have defected in droves to the PDP and some few ones to ADC and SDP.
“And still counting…So, all the legislators, including Dr. Bukola Saraki, are constitutionally covered and immuned from removal from office, because their APC party is eventually irredeemably broken into smithereens and totally fractionalized.
“Must Saraki and Yakubu Dogara (I can bet he will soon defect) lose their leadership positions as Senate President and Speaker of the House of Representatives respectively by this defection?
“The answer is a categorical no. There is nowhere in the extant 1999 Constitution where it is provided that the ruling party must provide these principal heads of the bicameral legislature. Indeed, APC was lucky in June 2015, when Saraki, then in APC, was narrowly elected Senate President and Ike Ekweremadu of PDP as his Deputy. It could have been the other way round as has happened many times in the U.S.A. and heavens would not have fallen. Section 47 of the Constitution provides that the Senate shall consist of 109 members and the House of Representatives 360 members.
“By virtue of Section 50(1) (A) of the Constitution, the president of the Senate and the Deputy President of the Senate shall be elected by members of the Senate.
“By Section 50(1) (b), the Speaker and the Deputy Speaker of the House of Representatives shall be elected by members of the House. There is nowhere it is stated that such officers must come from any political party, whether ruling, or opposition.
“The only circumstance in which the Senate President and the Speaker of the House of Representatives can lose their seat is provided for in Section 50(2) of the same Constitution. It states, inter alia, that the president of the Senate, the Deputy President of the Senate, the Speaker of the House of Representatives and the Deputy Speaker of the House of Representatives shall vacate their offices through a resolution passed by 2/3rd majority votes of members.
“Consequently, for Saraki and Dogara to be removed, each of the Houses needs 2/3rd majority votes. In the case of the Senate, that is a humongous 73 senators, and a whopping 240 members of the House of Representatives to remove Dogara. That is an impossible task under the present circumstances even if this corrupt government that feigns anti-corruption war promises all the oil blocs and automatic tickets to the legislators. This is because its antecedents of self-denial on everything it ever promised during campaigns makes it very untrustworthy to be believed on anything.
“In law, we call it similar facts. The last time I checked, APC and PDP stand shoulder to shoulder on membership with each laying claim to numerical superiority. So, where will it achieve this talismanic constitutional superiority of 2/3 majority votes to sack Saraki and Dogara? It will not happen.
“The deft Machiavellian and superior sagacious political acrobatics of Saraki and R-APC movement have left APC breathless and confused. They must go to the drawing board, a tabula rasa, if it hopes to snatch the burning kernel from the blazing inferno. The next weeks and months will be very interesting.”
In his contribution, Chief Mike Ahamba (SAN) believed there was no point for the Senate president to resign his appointment after his defection from the ruling APC to the PDP.
He said the division in the APC has justified his decampment and those of other lawmakers to the opposition parties.
He said: “The law is very clear. If you go to Section 68 (1) (g) of the Constitution, there is a proviso to it which says that where there is a division in a party and somebody belongs to a faction of that division, withdrawing from the party will not affect his sit in the National Assembly.
“The onus is now on those talking to go and prove that there was no division or faction in the party. We all know that there was a split in the APC which led to the formation of the rAPC group. So, Saraki need not to resign as the Senate President.”
To Jiti Ogunye, the APC can seek legal redress if it is dissatisfied with the action of the those that left the party.
“Section 68 (1) Paragraph g of the Constitution deals with defection. However, the proviso says that the member will not lose his or her seat if the defection is as a result of division in his political party. The division envisaged by that section must be that of the party structure.
“The legality or otherwise of the action will now depend on the angle you are looking at it from. Those that defected will be saying that there is indeed a division in the APC courtesy of the rAPC that emerged. They will claim that this gave them the legal basis to defect.
“There is a question of fact as to whether indeed there was a division or not. If the party is dissatisfied with what has happened, it can always sue those that defected to ensure that they vacate their seats”.
To Dr. Abdukamal Ambali, “Section 177 of the 1999 Constitution stated that a person shall only be qualified for election into the office of the governor of the state if he is a member of a political party and sponsored by a political party. The same 1999 Constitution did not state that such a person cannot leave that party after achieving electoral victory. This is only in respect of an elected governor.
“But in respect of elected senator, House of Representative members and state legislators, the 1999 Constitution, specifically in Section 68(1)(g) and (2) and 109 (1) (g) (2) only makes provisions for the tenure of members of the legislature and not that of the executive.
“The provisions clearly state that a state or federal lawmakers must vacate his or her seat after defecting to another political party, member of the Senate or House of Representative shall vacate his seat in the House of which he is a member if (g) being a person whose election to the House was sponsored by a political party before the expiration of the period for which that house was elected 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 faction by one of which he was previously sponsored.
“However politicians have found their way to circumvent this part of the Constitution. All they need to do is to create a faction in the party which fulfills the constitutional provision of fractionalization in the party. In 2013, the nPDP was created by the would-be defectors while the same scenario was replicated in 2018 when the same actors created the rAPC.
“With this series of defections in our political space, our political parties are becoming just a vehicle to win elections and after 18 years of uninterrupted democracy, our political parties are becoming weaker with little or no idealogy.
“To stop defections every year preceding general elections, the laws should be amended to state that any politician who defects to another party irrespective of factionalisation or not .This way we will be building strong politics parties and they will not just be vehicles for winning elections.This is the way to go.”
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