... DEFECTION OF A SERVING MEMBER OF THE LEGISLATURE MAY BE POLITICALLY EXPEDIENT BUT REMAINS CONSTITUTIONALLY ABERATIOUS. Written by Professor Nnamdi Obiaraeri

Prof. N. Obiaraeri 

Recent developments in the polity, especially the wave of defections or change of political parties by elected and serving members of the Federal and State legislatures, have made it imperative to be reiterated that wilful disobedience to the national constitutional provisions remains the greatest albatross to our democracy.

Our constitution is an imperfect work no doubt but there is no gainsaying that our democracy will thrive robustly and the needed dividends of democracy delivered faster in quantum leaps and bounds if, and only if, the salient provisions of the constitution are strictly obeyed and not disobeyed with reckless abandon.

Change of political party or what we call "political mobility" is both legit and constitutional for every citizen of Nigeria as the right to freedom of association, which includes freedom to dissociate, is inalienable and fundamental.

Put differently and simply, a Nigerian citizen is at liberty to change or withdraw his or her political persuasion or party membership without qualms or shame in line with the provisions of section 40 of the 1999 Constitution as amended dealing with the right to freedom of association.

This constitutionally guaranteed right to change political party extends to elected members of the Executive Arm of Government like President, Vice President, Governor or Deputy Governor.

However, this general rule has very clear exception as the selfsame Constitution disallows a serving member of the legislature from dumping the party platform under which he or she was elected while the term for which he or she is elected is running or subsisting.

Section 68(1)(g) of the 1999 Constitution as amended lends support to this position by providing that-

"A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected...."

The above provision of section 68(1)(g) of the Constitution applicable to Federal Legislators is also repeated and made applicable in the same terms, mutatis mutandis, to Members of the House of Assembly of States vide section 109(1)(g) of the 1999 Constitution as amended.

These limiting constitutional provisions have received robust judicial interpretations in notable decisions of the Supreme Court to the effect that failure, refusal or neglect to obey them attract dire consequences.

Prof. Obiaraeri and Sen. Rochas 

In deserving cases, the courts have declared such defections as unlawful, illegal and unconstitutional while ordering the offending defector/legislator to vacate the seat as well as refund all monies earned as salaries after the unconstitutional defection to the Public Treasury .

However, this general embargo on defection by legislators are subject to three recognised exceptions that are also etched in the Constitution.

Hence, the three exempted circumstances when a serving lawmaker may successfully dump his or her political party without dreadful legal consequences or vacating his or her seat are only where his or her membership of the latter political party is as a result of one or more of the following-
(i) a division in the political party of which he or she was previously a member, or
(ii) a merger of two or more political parties, or
(iii) factions by one of which he or she was previously sponsored.

All these conditions precedent are spelt out as provisos or exceptions in sections 68(1)(g) and 109(1)(g) of the 1999 Constitution as amended for Federal Legislators and State Legislators respectively.

What will tantamount to "division" or "factions" in the parent or original political party that sponsored the defecting lawmaker have also been judicially interpreted to mean division or faction in the national leadership of the political party as ordinary intra party disputes at the State or Local Government Area levels do not qualify as division in or faction of the political party.

Our constitutional jurisprudence is therefore crystal clear that it is only on the above named three instances that a serving federal or state legislator (being Senator, Member of House of Representatives, Member of State House of Assembly), can lawfully and constitutionally dump his party for another political party without vacating his or her seat.

This vivid explanation has become necessary because of the gale of defections that had in the past been witnessed and currently rocking the National Assembly and State Houses of Assembly across the country from legislators who are elected on the platforms of political parties that cannot be said to have merged with another political party, or dissolved into factions or occasioned division at the national level in terms contemplated by the Constitution and borne out by judicial decisions of the apex and final court, the Supreme Court of Nigeria.

Conclusively therefore, unauthorised dumping of political party or cross-capeting or defection by legislators may be politically expedient but they remain unconstitutional and manifestly indefensible.

This iscondemnable and stand condemned because a legislator swears an Oath of Office to uphold the provisions of the Constitution of the country amongst others things.

A legislator knows or ought reasonably to know the laws of the land and should find himself or herself irrevocably bound to uphold the provisions of the Supreme law of the land, being the Constitution.

It is therefore unacceptable that legislators, who are both law givers and law makers should be law breakers.

Legislators, more than the ordinary citizen, should have no scrupples in obeying the Constitution but it seems they comply more in breach than observance.

This is antithetical to the rule of law.

The sanctity of the constitution, the highest law of the land, the grundnorm or fons et origo should never be sacrificed on the alter political expedience or at the expense of morbid ego tripping or self-aggrandizement.

There is nothing which says that a legislator elected on an opposition party ticket cannot keep the political platform under which he was elected and still cooperate meaningfully with the party in Government in making laws for the good governance of the country or State as the case may be.

It is pure rape on our constitution for a legislator to brazenly dump the political party under which he or she was elected for another one without just or reasonable cause other than the euphoria of being in the ruling party.

This is aberratious and an unpardonable constitutional breach and consequential punishment should apply.

In the light of the foregoing therefore, political parties adversely afected by this uncinstititional political migration by serving lawmakers are encouraged to retrieve their wasted mandates by approaching the courts to declare the seats vacant as we are more than optimistic that judicial hammer will fall in proven cases of unconstitutional defection(s).

Let the rule of law and supremacy of the constitution prevail.

Let justice be done and the heavens will not fall. A word is usually not enough for the unwise.

A new normal is possible!

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*Prof Obiaraeri is my name, the ☆☆☆☆☆ 5-Star Civilian General etc.*