The matter of defection in parliament has always been contentious. Talking about defection or cross carpeting in parliaments in the ongoing renascent democracy, which began in 1999, two former federal ministers, Wahab Dosunmu and Adeseye Ogunlewe, actually birthed it all. The duo had abandoned the platform – the defunct Alliance for Democracy (AD)- through which they were elected into the Senate in 1999 and hopped on the Peoples Democratic Party (PDP) train. Some of their AD colleagues in the Senate were rooting for them to lose their seats. Senator Anyim Pius Anyim was Senate President when the agitation was ferocious. Coming from the ruling PDP, Anyim gave the duo protection. He wrote to the Independent National Electoral Commission, saying the duo’s original party, AD, was in crisis and as such they were covered in their defection. That saved Dosunmu and Adeseye, though there was no move to test Anyim’s position in court.
Since then, many more lawmakers had defected and their colleagues and constituents who felt short-changed by their defection had not really moved to challenge the defection in court. The matter of the defection of 5 PDP governors to the All Progressives Congress is still running in court.
In the matter of defection, the cardinal issue is the party such defectors are leaving must be in crisis, there must be a division or factionalisation within that party for the defection to be seen to be valid. The 1999 Constitution as amended is very explicit on this in Section 68 (1) (g). And this was the point amplified in the Supreme Court verdict in respect of the House of Representatives member representing Akure South/North Federal Constituency of Ondo State, Hon. Ifedayo Abegunde, who defected from Labour Party, which sponsored his election to the Action Congress of Nigeria, now defunct.
The Landmark Judgment
In the Supreme Court judgment, a seven-man panel led by the Chief Justice of Nigeria, Justice Mahmud Mohammed, held that a legislator’s defection to another party could only be justified if there was a division in the national structures, which incapacitated the party that sponsored his election, to function. The apex court held that Abegunde’s defection could not be justified since his excuse of purported division in the Labour Party was not in existence at the national level of the party.
The court noted that the “division” or “factionalisation” of Labour Party cited by Abegunde as his excuse for abandoning the party was only at the state level.
The judgment affirmed the concurrent decisions of the Akure Divisions of both the Federal High Court and the Court of Appeal, both of which had earlier ruled that Abegunde’s defection was unjustifiable.
Justice Musa Muhammad, who read the lead judgment of the Supreme Court, had held that only a “division that made it “impossible or impracticable” for the party to function by virtue of the proviso in Section 68(1) (g) of the Constitution “justifies” a person’s defection to another party.
In the opening of his judgment, Justice Muhammad said he had earlier on March 19, 2015 dismissed Abegunde’s appeal and the cross-appeal filed with respect to the case as both were “unmeritorious”. He explained that the Friday’s judgment was to give the reasons for dismissing the appeal and the cross appeal.
He cited previous Supreme Court decisions in FEDECO v Goni and Attorney General of the Federation v Abubakar to support his decision.
Justice Muhammad had held: “The principles enunciated by this court in the two cases – FEDECO v Goni supra and Attorney General of the Federation v Abubakar supra – is to the effect that only such factionalisation, fragmentation, splintering or ‘division’ that makes it impossible or impracticable for a particular party to function as such will, by virtue of the proviso to Section 68(1)(g) justify a person’s defection to another party and the retention of his seat for the unexpired term in the House in spite of the defection.
“Otherwise, has rightly held by the courts below, the defector automatically loses his seat.”
Justice Muhammad explained that by virtue of the combined provisions of Section 68(1)(a) and (g) as well as Section 222 (a), (e) and (f) of the Constitution, division in a party at the state level did not entitle a legislator to abandon the party on which platform he or she contested and won his or her seat.
The apex court rejected argument canvassed by the counsel for the appellant, Mr. Akin Ladipo, to the effect that “any division” in a political party would entitle a person to defect from a party who sponsored his election without having to lose his seat.
Justice Muhammad held: “I am unable to agree with learned counsel to the appellant that on facts and law as concurrently applied by the two courts below, their decisions can be interfered with.
“One is left in no doubt that the determination of the dispute, the trial court is approached to resolve, turns decisively on the meaning of word ‘division’ as used by the framers of the proviso to section 68(1)(g) of the 1999 constitution as amended.”
The Justice of the Supreme Court added, “Not being the kind of ‘division’ that affects the national structures and therefore the corporate existence of the party, learned counsel insists, appellant’s defection does not come within the proviso to Section 68(1) (g) to entitle him to retain his seat in the House of Representatives in spite of his defection to the ACN from the Labour Party on which platform he contested and won the seat.
“This position of the respondents is unassailable.”
Abegunde had defected from LP to the ACN in 2011 and in a bid to pre-empt the party from recalling him, he filed a suit at the Federal High Court in Akure.
In its judgment delivered on May 30, 2012, the Federal High Court dismissed Abegunde’s suit and the counter-claim filed by some of the defendants in the suit.
Dissatisfied with the judgment, Abegunde further appealed to the Court of Appeal, which in its decision delivered on September 15, 2015, also dismissed the appellant’s case.
Abegunde further appealed to the Supreme Court and on March 19, 2015, the apex court dismissed the appeal and the respondents’ cross-appeals. The apex court only explained the reasoning behind its earlier March 19 decision.
The Justices on the Supreme Court panel were the CJN, Justice Mahmud Mohammed; Justices John Fabiyi, Suleiman Galadima, Olabode Rhodes-Vivour, Musa Muhammad, Clara Ogunbiyi and Kudirat Kekere-Ekun. The defendants in the suits were the Ondo State House of Assembly, its clerk and speaker as the first to third defendants.
Others included the seven factional chairmen of the party at the state, local government and ward levels in the state. The 11th and 12th defendants were the Speaker of the House of Representatives, Alhaji Aminu Waziri Tambuwal, and Dan Nwanyanwu, sued as the National Chairman of the Labour Party.
Implication for Would-e Defectors
As politicians in the country are hopping on the winning train following the conclusion of the 2015 polls, the obvious implication for would-be -defectors in parliament is to watch it. They may be on the way to losing their seats if that impending defection is not properly gauged.