LEGAL CLARIFICATIONS ON GOVERNOR MATAWELLE’S RECENT DEFECTION TO APC- BEYOND MORAL JACTITATION AND POLITICAL JAYWALKING! ⚖️
Governor Matawalle of Zamfara State recently defected to APC thus abandoning PDP on whose platform he was declared Governor by the Supreme Court of Nigeria in a 2019 judgment while his Deputy Governor has decided to stay back in PDP.
PDP and their sympathisers have threatened to drag Governor Matawalle to court for defecting to APC and to recover the said seat which they claim belongs to PDP.
One reason being advanced by PDP in this proposed enterprise is that Governor Matawalle having been declared Governor by the Supreme Court on the sole ground that APC did not field any candidate in that election cannot now abandon PDP to join the same APC (which, without sounding repetitive, did not field any candidate in that election).
Although this argument looks novel and inviting but here are some legal clarifications on the issue to the contrary.
- Stricto sensu, the Constitution does not debar a Governor from defecting to another political party as that constitutional restraint applies only to serving members of the legislature elected on the platform of a political party in terms duly stipulated under sections 68(1)(g) and 109(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
- Based on the position of the law in paragraph 1 above, it is beyond argument that Governor Matawalle is at liberty to decamp to any party of his choice and PDP will not be able to successfully present the case and win it on the sole ground of defection of the Governor from PDP to APC.
- It may not be out of place to say that PDP cannot approbate and reprobate because overtime, PDP has also benefitted from defections of Governors elected on the platform of other political parties into their fold, the most recent being Governor Obaseki of Edo State who defected from APC to PDP.
- That the Supreme Court in their 2019 judgment declared Matawalle the then PDP candidate the Governor because APC did not validly sponsor a Governorship candidate does not extinguish the constitutional right of the PDP Governor to right to freedom of association guaranteed under section 40 of the 1999 Constitution as amended.
- Freedom of association had variously been interpreted to include freedom to dissociate. Elected members of the executive are not caught up with the rules against defection as already explained in paragraph 1 above.
- With respect, it will amount to rogue logic to opine that the Supreme Court held in that 2019 judgment that the constitutional right of Governor Matawalle to freedom of association was to be in abeyance for four years being the duration of the term of office he was elected.
This will mean that as long as Matawalle remained Governor he must remain a member of PDP whether he like it or not or that he was barred from changing his political party which will be unconstitutional.
- What the Supreme Court decided in that case was the right of the parties to the Governorship seat based on the position of the law as at the date the appeal was presented to it.
- The Supreme Court did not decide and could not have decided that the PDP Governor can not later exercise his right to freedom of association by dumping the party under which he was elected as is presently the case in Zamfara State.
- On the strength of the extant law, a party that did not field any candidate in a Governorship election can, just like a party that fielded a Governorship candidate and did not win, benefit from defection of a Governor who decides to dump the platform on which he was elected.
- It is true that by the said decision of the Supreme Court, APC did not participate in the 2019 Governorship election but at all material times from 2019 till date, APC remains a duly registered political party.
Thus, APC is in a good legal position to receive new members including the Zamfara State Governor who decided to dump the platform on which he was elected.
It is erroneous to argue that “Governor Matawelle’s defection to APC may be null and void in the future” as there is no legal basis to warrant such conclusion.
- The decision of the Deputy Governor of Zamfara State to stay back in PDP by refusing to defect to APC with his Governor is also consistent with the constitutional right to freedom of association under the said section 40 of the Constitution as amended.
Both offices of Governor and Deputy Governor are sui generis, meaning that each has a life of its own. The Governor and Deputy Governor run for office on one ticket and become separate and distinct upon being elected and sworn in.
None of the two offices can close the other down and a Governor cannot force the Deputy Governor to retain his old political party or be a member of a new platform and vice-versa. The analogous principle established in the decision of Supreme Court in OBJ V ATIKU settled it.
- In this somewhat novel case, it is not open to the Deputy Governor of Zamfara State to litigate and demand the seat of the defecting Governor elected on the platform of PDP as the Deputy Governor lacks the locus to do it.
The ticket or seat belongs to the political party that sponsored the candidate, being PDP. That is the gist of the Supreme Court decision in AMAECHI V INEC and a host of others after it.
The Zamfara Deputy Governor was right to allude to his incapacity to proceed against his Governor in his video/press statement although there is nothing for PDP to recover since a Governor is free to decamp shortly after he is sworn into office.
- Apart from the seat belonging to PDP or sponsoring party, the Deputy Governor cannot also proceed on his own to recover the Governors seat as he will meet another legal brickwall because the Constitution stipulates clearly the circumstances under which a Deputy Governor can become a Governor such as impeachment, resignation from office, death, insanity of the Governor and all that.
- Change of political party by the Governor is not one of the recognised conditions under which the Deputy Governor can become the Governor under the constitution.
- These clarifications have become necessary in order to assist the general public with clear understanding of some of the core legal issues presented by the political development in Zamfara State.
There is no doubt that these gale of defections across party lines (even in the legislature where it is prohibited) have presented heavy moral burden and cast a big slur on the type of democracy that is practised in Nigeria (although moral considerations do not trump constitutionally guaranteed rights).
There is also no doubt that a paradigm shift will require the decisive intervention of the legislature by way of outright constitutional amendment further streamlining the unsettling practice.
The challenge as usual is whether the legislature, whose members also indulge in the act of “political jumpology”, will have the political will to erect a new and radical legal order beyond the present moral jactitation and political jaywalking on the vexed issue.
In the interim, blame the Nigerian constitution and not Governor Matawalle and his co-travellers!
A new normal is possible!
🖋️
Prof Obiaraeri, N.O.
Ph.D (Law), B.L., FHRI, FCAI, NALTTEAW, KJW etc.