An Explorable Hole In The Constitution Of Federal Republic Of Nigeria

By S.O. Giwa Esq.

Through the leaking roof, the entry of rainfall is made possible. So is the existence of a hole in the Constitution of the Federal Republic of Nigeria makes it possible for many Nigerians to explore the silence of the Constitution on some issues to their own advantage.

It is no gainsaying that the same way that the rain breaks into a house via a leaking roof, some holders of offices of governors of states in Nigeria, keep exploring the non-availability of a provision which proscribes exit at will of a holder of office of governor from a political party that sponsored him for the election into the said office for a period of four years.

This act of exit at will by some holders of offices of governors in some States in Nigeria from a sponsored political party to another political party has now become ubiquitous practice in the democratic system of the country and the act of exit at will know no bounds as an elected person into office of Governor keeps defecting from his sponsored political party to another political party at will for reasons best known to the defector and thereby abandoning and giving up his allegiance to another political party.

What then is the term ‘DEFECTION’ in the context of democratic system of a Country, Nigeria?

The word ‘defection’ is the leaving or abandoning or giving up of one’s allegiance to a political party in exchange for allegiance to another political party in the hope of securing protection or better position or greater personal wealth with another political party. Thus, it is a formal change of defector’s affiliation with his first political party to another political party after being elected into an elective office/position in the state or country.

Flowing from the above definition of the term ‘defection’ is a fact that in Nigerian politics, a defector gives up his allegiance to a political party after being elected under that political party to another political party, a ruling party so to say, in a way which is considered illegitimate by the first political party.

One keeps pondering on the possible legal consequence of the ubiquitous practice of exit at will of some holders of the offices of governors in some states in Nigeria and this thinking calls for recourse to be referred to the Constitution of the Federal Republic of Nigeria 1999 (as amended) 4^th alteration with a view to finding out the circumstances in which a holder of office of governor can be lawfully removed from the office after election and administration of the oath of office and if exit at will by a holder of the office of governor of a state of Nigeria from a political party that sponsored the holder for the election into the said office for a period of four years is inclusive.

Scouting through the Constitution of the Federal Republic of Nigeria 1999 (as amended) 4^th alteration evinced the provisions of sections 180, 188, 189 and 191 which the writer considered as the relevant provisions for discussion in this piece as it relate to when a person who holds office of governor of a state can lawfully vacate his office.

Section 180 of the Constitution considered relevant for discussion reads:

• Subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until-
• when his successor in office takes the oath of that office; or
• he dies whilst holding such office; or
• the date when his resignation from office takes effect; or
• he otherwise ceases to hold office in-accordance with the provisions of this Constitution.
• Subject to the provisions of subsection (1) of this section the Governor shall vacate his office at the expiration of a period of four years commencing from the date when-
• in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and
• the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

Section 188 also reads:

• The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.
• Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly-
• is presented to the Speaker of the House of Assembly of the State;
• stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.

(other procedures are as provided in subsections 3-9 of the Constitution).

Section 189 also reads:

• The Governor or Deputy Governor of a State shall cease to hold office if-
• by a resolution passed by two-thirds majority of all members of the executive council of the State, it is declared that the Governor or Deputy Governor is incapable of discharging the functions of his office; and
• the declaration in paragraph (a) of this subsection is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the Speaker of the House of Assembly.

(other procedures are as provided in subsections 2-4 of the Constitution).

Section 191 also reads:

• The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the Governor from office for any other reason in accordance with section 188 or 189 of this Constitution

From the above provisions, it is very clear that sections 188, 189 and 191 provide for circumstances in which the holder of the office of the governor can be removed from office after election and administration of the oath of office while sections 177 deals with qualification of a person for election to the office of Governor of a State. Section 177 reads thus:

A person shall be qualified for election to the office of Governor of a State if-

• he is a citizen of Nigeria by birth;
• he has attained the age of thirty-five years
• he is a member of a political party and is sponsored by that political party;
• he has been educated up to at least School Certificate level or its equivalent.

Flowing from the above provision of section 177, it is also clear that the condition that the person who is eligible to contest for the election into the office of governor of a state must be a member of a political party and is sponsored by that party deals with a pre-election matter and not when the person has won and taken the oath of office of governor of a state.

It is the writer’s stand that the reference or mention of the word ‘person’ in section 177 fortifies the fact that the conditions stated under section 177 of the Constitution is only applicable for the election as the section deals with pre-election matter.

It is worth to re-echo that the language of the Constitution where it is clear and unambiguous must be given its plain evident meaning. Hence, the condition that a person who is to contest for an election into the office of governor of a state that the person must be a member of a political party and sponsored by that political party stated as provision of section 177 (c) should not be stretched to be applied to holder of the office of Governor after the election has been won and oath of office has been taken.

It is also noteworthy that from the provisions of section 180 of the Constitution, it is clear that a sitting governor will cease to hold that office when:

• his successor in office takes the oath of that office;
• or he dies whilst holding such office; or
• the date when his resignation from the office takes effect; or
• he otherwise ceases to hold office in accordance with the provisions of the Constitution.

It is to be borne in mind that circumstances in which the holder of office of Governor would ‘otherwise cease to hold office’ other than as provided for under section 180 of the Constitution are contained in sections 188 and 189 of the Constitution which is an organic law or grund norm of the people upon which formulation of all the laws from which the institutions of state derive its creation, legitimacy and very being.

It is crystal clear that ‘any other reason’ envisaged by section 191(1) of the Constitution must be in accordance with the provisions of sections 188 and 189 of the Constitution. In other words, ‘any other reason’ must be reasons that fall within the purview of sections 188 and 189 of the Constitution, not outside those sections.

From the community reading of sections 188, 189 and 191(1) of the Constitution, the holder of office of Governor is removable from that office by-

• impeachment by the House of Assembly on ground of ‘gross misconduct’ as defined in section 188 (II) of the Constitution;
• a resolution passed by two-thirds majority of all the members of the executive Council of the State in which it is declared that the Governor is incapable of discharging the functions of his office which declaration must be verified, after medical examination, by a medical panel established under subsection (4) of section 189, etc,
• reason of death and/or
• resignation

It is the writer’s stand and firm opinion that there is nowhere in the Constitution where it is stated that the holder of office of Governor of a State in Nigeria shall be removed or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party. It is the Constitutional responsibility of the Legislature to make or amend the laws including the Constitution, where the need arises. Thus, a situation of defection of the holder of the office of Governor of a State from the party which sponsored his election into that office to another political party does not form part of the grounds for removal of the said governor via court process.

It is noteworthy to say here that the stance of many Nigerians –literates and illiterates that a holder of office of Governor who defects from a political party which sponsored him before the expiration of his four (4) years tenure of office to another political party stands to lose his seat as the consequence of the act of defecting to another political party save the holder’s defection to another political party is as a result of a division in his sponsored political party is a self-made consequence which has no provision in  the Constitution.

The provision of section 68(1)(g) of the Constitution which some people used as basis for the conclusion that ‘a holder of office of governor who defects from a political party which sponsored him before the expiration of his four (4) years tenure of office to another political party stands to lose his seat as the consequence of the act of defecting to another political party save the holder’s defection to another political party is as a result of a division in his sponsored political party’ is the provision of the Constitution for when a member of the Senate or of the House of Representatives would vacate his seat if he defects to another party and not applicable to the holder of office of governor who defects to another political party before the expiration of his four (4) years tenure of office.

It is the writer’s considered view that if the Constitution had wanted members of the executive to also lose their seats by virtue of their declaration for other political parties other than the one by which they were elected it would have expressly provided for same.

It should always be borne in mind that in construing the provisions of the Constitution, it is proscribed to read into any provision or section thereof anything not expressly contained therein or to fashion out another Constitution or provision for the people other than to bring out the true intention of the makers of the framers of the Constitution.

Finally, it is conveniently important to give the writer’s stand vis-à-vis the decision of the Supreme Court which voided the votes (534, 541) garnered by candidate of All Progressives Congress against the votes (189, 452) garnered by PDP at that election on the reason that APC had no candidates in the 2019 governorship election in Zamfara State, having not conducted valid primaries which gave the victory to the candidate of the PDP who now defected to All Progressives Congress.

It is the writer’s stand that the decision of the Supreme Court stating that the APC did not have candidates for the said election having not conducted valid primaries in the buildup to the governorship elections in Zamfara State in that year only relates to the election of that year (2019) alone and nowhere in the said decision of the Supreme Court stating that APC cannot or should not have governor in that State or proscribing APC from having governor in Zamfara State and Bello Matawalle who has defected to All Progressives Congress is only removable in accordance with the provisions of the Constitution which in the writer’s view are unambiguous and clear to be applied.

It is the writer’s opinion that the removal of any defected governor of any State in Nigeria in court is only achievable in full compliance with the provisions of the Constitution and for reason that nowhere in the Constitution where it is stated that the holder of office of Governor of a State in Nigeria shall be removed or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party, it is the writer’s recommendation that the most ubiquitous weapon of removal of any holder of office of Governor of a State is by impeachment by State House of Assembly if practicable.

It is the writer’s stand that the defection is a political problem which requires political solution and that the impeachment is a strong political weapon in the hands of the State House of Assembly for a political problem.

Written By S.O. Giwa Esq. a.k.a pentalk (Ibadan based Legal Practitioner), giwa_pentalk@yahoo.com 08035224192