Contrary to the argument in the political class that an elected official cannot retain his or her seat after defecting from the party under which he or she was elected when there is a crisis, the Federal High court sitting in Ilorin, Kwara State yesterday declared that the defection of 22 state lawmakers elected on the platform of the Peoples Democratic Party (PDP) but defected to the All Progressives Congress (APC) was legal and constitutional.
The presiding judge, Justice Olayinka Faji, in his ruling stressed that the defendants would not lose their seats for another re-election because there was indeed an established case of crisis in their former party (PDP), which prompted their defection to APC.
However, the ruling of Justice Faji coincided with the recommendation of the ongoing Constitutional Conference which has suggested that any elected official who defects from the party on which he or she was elected automatically loses the seat.
The Independent National Electoral Commission (INEC) also recently warned that henceforth, politicians who cross-carpet while still in elective positions will have to lose their seats.
A member of the Kwara State House of Assembly, Hon. Ilyas Ibrahim, who stayed back in PDP and the leadership of the PDP had dragged the defendants to court that they should vacate their seats as they had dumped the party for APC.
Counsel for the plaintiff, Mr. Salman Jawondo assisted by O.J Adeseko, had urged the court to declare the seats of the speaker and 20 others vacant in view of the fact that they were elected on the platform of PDP, but defected to APC.
Jawondo argued that having left PDP for APC, the defendants’ seats should be declared vacant and that they must stand another election for them to retain their seats.
But counsel to the defendants, Wahab Bamidele, Tosho Yakubu and Bola Razaq Gold, argued that the defendants had the rights to defect to any other party because of the prevailing crisis in their former party.
But Justice Faji in his ruling in suit no FHC/IL/CS/6/2014, PDP, Ibrahim Vs Razaq Atunwa and 20 others and INEC declared that the defection of the lawmakers was legal and constitutional.
The judge relied on the judgment by Justice Chukwu, which restrained Alhaji Kawo Baraje from parading himself as the INEC-recognised chairman of PDP.
Justice Faji explained that the mere ruling that Bamanga Tukur was recognised as the official chairman of the PDP then, showed indeed that there was a faction and crisis in the PDP. The ruling had also forbidden Baraje from parading himself as the chairman of the party.
The judge explained that at the time of the defection by the Kwara Assembly members, there was indeed a faction in PDP, which made the defection by the Kwara Assembly members legal and constitutional.
Reacting to the ruling yesterday, former Commissioner for Justice and Attorney General in the state now a member of the House of Representatives, Dr. Ahmad Ali, said Justice Faji's judgment had laid to rest the constitutionality of defection by the legislators.
According to the lawmaker, "It is a landmark judgment on the issue of defection. This is the first final judgment, compared to various conflicting interlocutory orders by the Federal High Court in Nigeria. It supersedes all other previous non-judicial gratuitous statements. I urge PDP to quickly appeal this sound judgment if they so wish. We are comforted that in the Federal High Court there are still many judges who are bold and still stand as bulwark between the dregs of the society and the powerful forces.
"The judgment for the first time answered the question: was there a division in PDP when the legislators defected?. The court said yes. If it is yes (as any reasonable man already acknowledges) then any member can constitutionally defect."
However, the National Conference delegates yesterday approved the recommendation for independent candidates for any election in the country.
The conference further recommended that any elected official that cross carpets to another political party should lose his or her seat. Though, some members argued that the matter should not be discussed because it is still in court, but majority of the delegates insisted that it should be decided upon and when it was put to vote, members adopted the recommendation that whenever any elected politician vacates his or her office prior to the defection, the person loses his or her seat accordingly.
The conference also called for the amendment of the 1999 Constitution to allow for individuals who may not wish to contest election on the platform of any political party to be allowed to do so. The 1999 Constitution states that for anyone to stand for election he must be on the platform of a registered political party.
The conference also rejected the suggestion that government should fund political parties, while recommending that INEC should place a peg on campaign funding and expenditure.
On the issues of creation of local governments and funding, the delegates said it is the duty of the state governments and therefore the local government issues have been removed from the exclusive list to the concurrent list.
The delegates had agreed that the federal government should continue to fund the old 774 local governments, but no decision was taken on the creation of new local governments.
The delegates agreed that states should be allowed to create election tribunals.
The conference adopted the recommendation that any person living above his means of office should be investigated by the anti-corruption agencies to determine the source of his or her wealth. The aim, the delegates explained, is to enable the person(s) concerned to explain his or her source of wealth.