By Nkem Okoro
A story captioned, “APC extends registration as Matawalle set to join party,” reported by Daily Trust on Friday, April 2, 2021, refers.
This article is intended to review the legal consequences of such alleged intended defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC), by the governor of Zamfara State, Dr. Bello Mohammed Matawalle, given the circumstances under which he emerged as governor.
Matawalle emerged as governor of Zamfara State by virtue of the judgment and order of the Supreme Court of Nigeria, hence, any step taken by him contrary to the judgment and order of the Supreme Court will not only be illegal but also immoral. By the subsisting order of the Supreme Court, APC did not contest election in May 2019 in Zamfara, and, therefore, candidates of the PDP in various categories were declared winners of the various elective posts in the state. By the judgment of the Supreme Court, the occupant of the seat of the governor of Zamfara State must be a PDP faithful and not APC.
Though the Constitution of the Federal Republic of Nigeria is silent on the issue of defection of a sitting governor from the party under which he won his election to another party, one believes that this recurring issue of defection by governors can be put to rest whenever the opportunity is presented to the courts to determine. A court of law can declare the office of the governor and deputy governor of any state vacant, where the occupants of such seats defect from the party which nominated and sponsored them to contest the gubernatorial election in Nigeria and on whose platform they won election as candidates of the said party.
Section 221 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides as follows: “No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or the election expenses of any candidate at an election.”
The Supreme Court, while interpreting the provisions of Section 221 of the Constitution, had variously held that independent candidature in election is not applicable in Nigeria, that, in reality and in keeping with section 221 of the Constitution, it is the party which sponsors a candidate in an election that wins the election since a candidate cannot contest an election without being sponsored by a party. Thus, votes are garnered on behalf of the political party in an election. See the case Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61 (P. 173, paras. D-F).
It is not in dispute that Alhaji Bello Matawalle was nominated and sponsored to contest for the post of governor of Zamfara State in 2019 by the PDP. This clearly means that the governor of Zamfara State cannot abandon the party that nominated him and sponsored his election as the governor without legal consequences. The legal consequences can only be determined by a court of law in a case properly brought before it in accordance with the provisions of Section 6(6b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, which provides for the judicial powers of the court in all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to civil rights and obligations of that person.
The PDP has a right over who occupies the governorship seat in Zamfara State, in view of the alleged planned defection of the incumbent from the PDP to the APC, and is, therefore, entitled to remedies properly sought before a court of law in the unlikely event that the governor defects. The Latin maxim, ubi jus ibiremedium, is applicable to the facts and circumstances of this case.
It is to be noted that “jus” signifies the legal authority to do or demand something and “remedium” means the right of action or the means given by law for recovery or the declaration or assertion of that right. In other words, the maxim presupposes that where the law gives a right, it also gives remedy; that remedy must be founded on a legal right. See the case of Bello v. A-G., Oyo State (1986) 1 NWLR 828; Thomas v. Olufosoye (1986) 1 NWLR (Part 18) 669.
However, in pursuing this remedy, one would also consider the provisions of the Constitution of the Federal Republic of Nigeria in line with the judicial powers of the court. It is to be noted that the Constitution did not provide for the removal of a governor from office by virtue of defection to another party, unlike Section 68(1g) of the Constitution, which provides for the vacation of the seat by a member of the National Assembly who defects to another party before the expiration of his term.
The Constitution of the Federal Republic of Nigeria provides in Section 188 for the removal of the governor from office, but not on the grounds of defection to another party. Section 189 also provides for the cessation of the term of office of the governor or deputy governor under certain circumstances, which did not also include defection to another party.
However, the big question is whether the Constitution is conclusive on the mode of removal of a governor or deputy governor from office, or the cessation of office of a governor. The answer to this question will lie in the judicial interpretation of the provisions of sections 188 and 189 of the Constitution of the Federal Republic of Nigeria. The writer is of the view that sections 188 and 189 of the Constitution are not conclusive on the issue of the grounds upon which a governor can be removed from office, especially by a court of law.
The constitution of any country is usually called the organic law or grundnorm of the people. It is the formulation of all the laws from which the institutions of state derive their creation and legitimacy. It is the unifying force in the nation and it apportions rights and imposes obligations on the people who are subject to its operations. The constitution of a nation is, therefore, a very important composite document, and its interpretation is subject to recognised canons of interpretation known to law and designed to enhance and sustain the reverence in which constitutions are held the world over. See [Shosimbo v. State (1974) 10 SC. 91. A-G., Abia State v. A-G., Fed. (No. 2) (2002) 6 NWLR (Pt. 763) 264; Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Nafiu Rabin v. Kano State (1980) 8-11 SC 130; Balewa v. Doherty (1963) 2 SCNLR 155.
The Constitution could not have intended that a candidate who was nominated by a political party, sponsored by the political party, could defect, under any circumstance, to another political party, without vacating the said seat, which he occupies on behalf of the party that sponsored his election.
Matawalle, the governor of Zamfara State, should, therefore, have a rethink while allegedly making plans for defection to APC from the PDP that there could be dire legal consequences, in view of the subsisting judgment and order of the Supreme Court of Nigeria.
•Okoro, constitution lawyer and human rights activist, writes from Garki, Abuja
