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Legal X-ray of His Defection

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By Bakare Abdul-Aziz Olatunde

Quite expectedly, a number of commentators from Lawyers to political analysts, politicians, civil societies etc have all lent their voices to the sudden but expected defection of the Honourable Speaker of the Federal House of Representatives, Rt. Hon. AminuWaziriTambuwal CFR from the Peoples’ Democratic Party (PDP) to the All Progressives Congress (APC). There has been a deluge of opinion on the legality or otherwise of the defection of the Speaker and whether by virtue of his defection, he has ceased to be an Honourable member of the House of Representatives not to mention being the Speaker. Even Peoples’ Democratic Party who have benefited from several defections in the past including the recent defection of the Ondo State Governor, Dr.OlusegunMimiko, the Speaker and members of the Ondo State House of Assembly  all to the PDP have asked the Speaker to resign his post. It is easy to understand the anger of the Peoples’ Democratic Party. The PDP never wanted AminuTambuwal as Speaker of the House. They had in fact fronted and asked their members to instead cast their votes for Hon. MulikatAkande as Speaker in a bid to balance power and give the South west a sense of belonging. While it is admirable, the Honourables however were not in support of this. I could not have imagined a better reaction from the PDP when Tambuwal after putting them through several sleepless nights decided to pitch his tent with the APC.

However, the most astonishing of reactions and what will perhaps go down in history as one of the most brazenly partisan involvement of the nations’ security apparatus in politics was from the Nigerian Police Force. As a preface, it is important to restate that the police as a national institution should detach itself from any involvement in partisan politics. The constitutional role and functions of the Police are clearly delineated in the extant laws and one would expect the Police to follow them religiously. In this case, the Police did not only constitute themselves into a court of jurisdiction, they went ahead to declare that since Tambuwal has defected to the APC and by virtue of Section 68 (1)g of the 1999 constitution as amended, he has ceased to be an honourable member of the House of Representatives. I shudder to ask where the Nigerian Police was when the same thing happened in Ondo state? Was the Commissioner of Police in Ondo state taking a nap when the Speaker of the Ondo state House of Assembly and her honourables defected to the PDP? Was there even a crisis in the Labour Party at either the state or national level to have warranted the defection and brought it in line with the dictates of the proviso to Section 68 (1) of the constitution? Assuming but not conceding that the Commissioner of Police in Ondo state is not even aware of the consequence of defecting to another party on other grounds except as provided by the Law, where was the Inspector General of Police? Has the IGP not listened to the news since then or has he not read the newspapers ever since to know that PDP has taken over the affairs in Ondo State House of Assembly whereas Ondo people voted for Labour Party?

Selective policing by an institution that ought to be apolitical portends a very dangerous signal in the nation ahead of the 2015 general elections. The police must steer clear of getting involved in partisan politics and of importance, the Nigerian Police must put a stop to the new trend of interpreting the provisions of the constitution as this is clearly the exclusive duty of the Courts by virtue of Section 6 (6) of the constitution. Not even the Police Act in all of its 69 Sections empowers the Police to interpret the constitution. Specifically speaking, Section 4 of the Police Act which provides for the general duty of the Nigerian Police states as follows:

“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order; the protection of life and property and the due enforcement of all laws and regulations WITH WHICH THEY ARE DIRECTLY CHARGED, and shall perform such military duties within or without Nigeria as may be required by them by, or under the authority of any other Act.” (Emphasis mine)

The above quoted section is very clear and unambiguous as it does not in any way confer authority on the Nigerian Police to interpret the provisions of the constitution let alone declare that anyone has lost his/her seat in the House of Representatives by reason of their defection from party A to party B. In any case and to declare the seat of a defecting Honourable vacant, recourse must be made to Section 68 (2) of the constitution which empowers the President of the Senate or the Speaker of the House of Representatives to give effect to the provisions of Section 68(1). This section again clearly does not mention the Nigerian Police and it is not automatically activated.

The Police may also want to argue that allowing the Speaker to give effect to Section 68(1) will amount to allowing him be a judge in his own cause as that is against the principle of fair hearing thus necessitating their action. I say clearly and unambiguously that such excuse is not tenable. Though it is an undisputable principle of law that a party shall not be a judge in his own cause but, in this sense, the best place to seek the declaration of the Speaker’s seat vacant is the Court and not the police. I fully expect the Nigerian Police to retrace their steps and listen to the voice of reason. A partisan police ahead of general elections which is less than 4months is the least of what the nation requires. If the IGP in acting capacity can display this utter disregard for the role of courts and the constitution, I shudder to think of what his actions will be when he becomes the Inspector General of Police. The PDP has consistently shown that its centre cannot hold against the wind of centrifugal forces from its internal contradictions hence it needed the Ag. IGP to suomotu pose to himself the scenarios whether there is division in the PDP or a merger, answer his own questions and execute his belief thereby constituting himself into a court. A desperate acting IGP who wants to become the substantive IGP will do anything to please his master in a show of loyalty and that is as dangerous to the entire country as terrorism is.

Furthermore, it has also been argued by some analysts and Lawyers alike that there is/was no division in the PDP warranting Tambuwal’s defection to the APC. Facts are sacred and at this point, it is important not to sacrifice facts on the altar of politics and sentiments. From the 7 PDP Governors to the New PDP and to the seeming crises in the state chapters of the PDP, it is clear that the party is factionalised. In SokotoState which is the home state of the Speaker, the Governor and his deputy were both elected on the platform of the PDP but the Governor has since moved to the APC while the deputy remains in the PDP. Is that not the consequence of crisis and resulting factionalisation? In addition, the question of whether or not there is a division or faction in the PDP has been resolved by not just one court but two separate divisions of the Federal High Court. In the Ilorin division of the Federal High Court in suit no FHC/IL/CS/6/2014 per Hon. Justice Faji, the court held that indeed there were factions in the PDP. Again in suit no FHC/S/CS/4/2014, the Sokoto Division of the Federal High Court per Justice Aikawa, held that there was not only a division, but faction in the PDP which later merged with the APC. Those Judgement as of date stands as no appeal as emanated therefrom. So does this still mean there is no division in the PDP?

If for the purposes of argument we accept that there was no faction in PDP in Sokoto State specifically, what was Chief Tony Anenihreconciliating when he went Sokoto State? Or was it not in the news that the chairman of the BOT of PDP was in Sokoto about two weeks back, with other party heavyweights to reconcile faction? Do you reconcile when there are no divisions? I leave these questions to the non-sentimental mind.

In the same vein, there has been noise from some quarters as well that the seat of the Speaker of the House of Representatives belongs to the PDP by virtue of them having the majority of seats in the House. While there has been in history both within and outside the shores of the country, facts which lays credence that minority members of a legislative house have held leadership of same in different eras, I choose to clearly discuss this in line with the provisions of Section 50(1) (b) of the constitution which provides inter alia:

“There shall be a Speaker and a Deputy Speaker of the House of Representatives who SHALL be elected by the MEMBERS OF THAT HOUSE FROM AMONG THEMSELVES” (Emphasis mine)

In very clear terms even to a non-legal mind, the above cited section of the grund norm is clear as to how the Speaker of the House of Representatives would emerge. The constitution recognises that Honourable members are equal in terms of being in the House and emphasises that the Speaker should emerge from among them. How this translates to automatic ownership of the Speakership position for the PDP baffles me. What is usually the practice is that the party in the majority is able to muster all of their own to out muscle others in election for the speakership position thereby having one of them as Speaker.

  • Abdul-Aziz is a prospective Lawyer and tweets at @Backarray.

 

 

This happens everywhere. But to ascribe this practice to be a right of the party with majority to produce the speaker is to miss the point. This should not be elevated to the pedestal of being an entitlement of the ruling party as the constitution clearly does not contemplate that. In other words, if the members of the House in their own right feel Honourable A of minority party XYZ will be a better Speaker than Honourable B of the majority party DEF, they can decide to elect Honourable A of party XYZ as their Speaker not minding the fact that he is from the minority party. Will this be constitutional? Of course it will be as what qualifies any honourable for the post is by virtue of being a member of the House and not a membership of the party. So those who are eager to have the ruling party present the Speaker because PDP is in the majority should sheathe their swords and allow the members of the House of Representatives decide what is best for them.

Let Presidency and the PDP hierarchy get angry if they want.  They are only a victim of their own impunity.  The rich also cry!

 

  • Abdul-Aziz is a prospective Lawyer and tweets at @Backarray.
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