Can Governor Obaseki Legally Function As A Governor Without Being A Member Of A Political Party? My Take

By Prince Azubuike Esq

As a result of his disqualification from participating in the APC’s Governorship primaries in Edo State, the Edo State Governor, Mr. Godwin Obaseki on Tuesday, the 16^th day of June, 2020 publicly resigned his membership from the ruling All Progressive Congress (APC) after all efforts to upturn his disqualification proved abortive.

Upon his resignation from the ruling APC, one had expected Mr. Godwin Obaseki to immediately announced his new political party in which he seeks to govern Edo State and also pursue his second term ambition; this however was not the case as the embattled Governor is yet to join another political party.

In this expose’ I intend to surgically unveil whether the act of Mr. Obaseki governing Edo State without being a member of a political party is not in contravention of the Constitution of the Federal Republic of Nigeria. Put differently, can a person govern a state in Nigeria without being a member of a political party?

The office of the Executive Governor of any of the 36 states that constitute the geographical expression called Nigeria is entrenched in the Constitution of the Federal Republic of Nigeria, 1999. The requirements to be eligible to contest an election into the office of the Governor of any state of the federation is as provided in section 177 CFRN 1999. The said section provides as follows:

1. 177 A person shall be qualified for election to the office of Governor of a state if –

(a)  he is a citizen of Nigeria by birth

(b)  he has attained the age of 35 years

(c)  he is a member of a political party and is sponsored by that political party; and

(d)  he has been educated up to at least School Certificate level or its equivalent.

(Emphasis mine).

From the provision cited above, it is clear that one of the chief ingredient that a Governor, whether aspiring to be one or an incumbent must possess is that he must be a member of a political party. The current position of Mr. Obaseki runs foul to this provision of the constitution. The position of Mr. Obaseki can at best be regarded as an Independent Candidate. The question then is, does our corpus juris have provisions for independent candidates?

Unlike the Republican Constitution of 1963 that allowed for independent candidates to contest elections, the framers of both the 1979 and 1999 constitutions of the Federal Republic of Nigeria refused to allow provisions for independent candidates. The framers felt that the creation of states had assuage the agitation of the minority and the practice of independent candidacy is not in tandem with the novel presidential system of government which the constitution adopted. Independent candidacy is however a prominent feature of a robust political system and that is why many democracies are embracing the idea. From the largest democracy, India, to the United States of America, and many other western democracies, independent candidacy is part and parcel of their political system even in Kenya.

In Nigeria however, independent candidacy is unknown to our Electoral Act. In the case of Amaechi v. INEC & 2 Ors (2008) 1 SC (Pt. I) 36, the Supreme Court, per Oguntade JSC (as he then was) stated the position of the law as follows:

‘Now section 221 of the 1999 constitution provides: ‘No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election’. The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties.’

Similarly, in his concurring judgment, Aderemi JSC (as he then was) took the argument further when he held that:

‘However, I hasten to say that under the present dispensation, independent candidates are no longer permitted to contest an election. To be eligible to contest an election, a candidate must be a member of a political party. The Constitution of the Federal Republic of Nigeria 1999 recognizes this fact hence it vest the political parties with the exclusive function of canvassing for votes for candidates at election’.

See also Ezeigwe v. Nwawulu (2010) 2 – 3 SC (Pt. I) 1; Ehinlanwo v. Oke (2008) 6 – 7 SC (Pt. II) 123.

On the strength of the above cited authorities, if only a political party is eligible to present candidates in an election, it will be unconstitutional for an elected official, be he a Governor or howsoever called, to occupy such an office without being a member of a political party. What Mr. Obaseki would have done was to immediately after his resignation from the All Progressives Congress, announce a new political party on whose platform he intends to govern Edo State.

Conclusively, it is my firm view and rightly so that for every other day Mr. Godwin Obaseki stays and functions as the Executive Governor of Edo State without being a member of any political party, he is in flagrant breach of section 177(c) CFRN 1999. He is functioning as an Independent Candidate which is of course unknown to the constitution and the Electoral Act, any act done by him under this circumstances, he does at his peril.

Prince Azubuike ESq.
Partner, West Law Solicitors
Port Harcourt