To start with, the CFRN 1999 (As Amended) is very clear on the issue of defection of members of the legislature from one party to the other. It provides in Section 68(1)(g) that no member of the House of Representatives or Senate of the Federal Republic of Nigeria shall defect from his or her political party to another, except where it can be shown that there is a division in his or her party or a merger of the party with another political party or the faction he or she belongs has occurred.
This provision is _Ipisima verba_ with section 109(1)(g) of the same constitution which applies to members of the State Houses of Assemblies (SHA).
This is a strict liability provision, which the Courts have enforced in a number of previous decisions like in Sunday Ifedayo Abegunde V Ondo State House of Assembly decided in 2014. Except in cases that were not diligently pursued in court, otherwise such a defection is bound to be sanctioned by law.
Secondly, similar cases involving Gov. Tambuwal and Saraki were not diligently pursued in court and so we cannot rely on the outcome of those cases to act on the present facts arising from the defection of 27 State House of Assembly members in Rivers State. In other instances, the court has held that such a defection is unlawful and for any legislator to benefit from the proviso to sections 68 and 109, such a legislator must prove that the party he is leaving .....has been divided into two or more factions... That is to say, the party must have two or more national chairmen, two or more Board of Trustees and each must be claiming to be the authentic one bearing the same name. See Delta State House of Assembly V Democratic Peoples Party & Ors (2014) LPELR 22808 (Court of Appeal). Note that the faction referred to is not of the members of the party in the Legislative House concerned, but of the NWC of the party, which does not avail the defectors of the RSHA because the PDP as a political party does not have any faction at the level prescribed by the constitution.
Even the contention that some persons might wish to raise to the effect that the said sections 68 and 109 are derogatory to section 40(6), which guarantees the Fundamental Right of Freedom of Association cannot avail the defecting legislators because the said section is also qualified by Section 45 of the Constitution, which provides for derogation of the whole _corpus_ of Fundamental Human Rights provided in sections 37, 38, 39, 40 & 41.
In essence, none of the fundamental rights is absolute including the right to Freedom of Association. These rights are curtailed in pursuit of public order, safety, morality, defense and the protection of the rights of others. Moreover, the sections does not just outlaw defection to perpetually lock people into political parties with out room for exit. It provides a detailed framework for exit based on defined parameters, which must, however, boldly exist for members of the legislature to exit political parties, which they presently hold their mandates.
This accords perfectly well with the jurisprudence of the courts in Nigeria that votes at a general election are cast in favour of a political party not candidates. This was the basis of the informing consciousness of the Supreme Court judgement in Amaechi V Omehia's Case in 2007; and it accords with section 221 CFRN 1999, which limits the persons that can participate at an election to only candidates sponsored by political parties.
The sound judgement of the Federal High Court in 2022 nullifying the election of HE Gov. David Umuahi former governor of Ebonyi State and members of the Ebonyi State House of Assembly who defected from the PDP to the APC that would have effectively settled the jurisprudence on the matter, was upturned by the Court of Appeal and the matter never went to the Supreme Court for a definitive pronouncement.
Based on the foregoing, we would like to recommend as follows:
1. In addition to the suit filed by the Rivers State Factional Speaker loyal to HE Gov. Sim Fubara for an interim injunction, he should convene a session of the house with the remaining loyal members and declare the seats of the defectors vacant and bar them from participating in the activities of the House.
2. The NWC of the PDP should also file a suit against the defectors for the recovery of their mandates.
3. H.E Gov. Sim Fubara, should organise the various LGAs of the state where the State Constituencies of the defectors fall to proceed to court to challenge their defection.
4. The NWC of the PDP, should immediately expel the defectors and convene a NEC meeting to discuss their defection.
5. To this extent, while the recommended litigations are essentially to metre the tide against Wike and the defectors so as to frustrate them. Gov. Sim must move speedily to win back all the stakeholders of the PDP in Rivers State that Wike was at daggers-lenght with. This would include breaking the ice, closing the distance and opening up channels communications with all such stakeholders ASAP.
6. Subsequent to 5 above, H.E Gov. Sim Fubara should not hesitate to assume the full leadership of the party at the State level and convene a Rivers PDP stakeholders meeting to denounce the defectors.
7. The stakeholders meeting may even be expanded to a multi-partisan meeting to show the commonality of interest of all Rivers people irrespective of their political divide.This will be a moral booster move that if successfully executed, might even bring the APC stakeholders opposed to Wike's high-jack of the State party structures to his side.
The D-37 remains committed to a viable multi-party democracy founded on the principles of national unity, social inclusion and equity as espoused by High Chief Raymond Alegbo Dokpesi.
Signed
Chairman Sen. Victor Isa Kassem Oyofo
Secretary. Dr. Alex Ter Adum
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