By Anthony T. Adisianya Esq.
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Abstract
Sections 68(1)(g)&(2) and 109(1)(g)&(2) of the 1999 Constitution of the Federal Republic of Nigeria outline mandatory grounds for legislative seat vacation upon defection by a lawmaker. However, political manipulation and recent judicial developments necessitate a deeper examination of how vacation of seats due to defection is to be enforced. This paper explores the constitutional framework, emphasizes the necessity of due process as underscored by the Supreme Court decision in Rivers State House of Assembly & Anor v. Government of Rivers State & Ors (2025) LPELR80539(SC), and offers a critical assessment of the need for judicial intervention where political actors default. It also reflects on the concurring observations made by Justice Chioma Egondu Nwosu-Iheme, JSC, regarding the evidentiary requirements for establishing defection and the jurisprudence from Abegunde v. Ondo State House of Assembly (2015) LPELR-24588(SC) (P. 33 Paras C–E) on the automatic loss of seat upon unlawful defection.
- Introduction
The 1999 Constitution (as amended) remains the grundnorm of Nigeria’s democratic governance. Sections 68(1)(g)&(2) and 109(1)(g)&(2) serve as critical safeguards of legislative integrity, specifying clear grounds for the vacation of seats. However, evolving political behaviour and recent judicial pronouncements challenge simplistic interpretations of automatic seat vacation, highlighting the indispensable requirement of constitutional and judicial procedures. The most recent and glaring political development in this context is the defection of the Delta State PDP governor, lawmakers, and others to the APC.
- Structure and Mandatory Language of Sections 68 & 109
Sections 68(1) and 109(1) provide that a member “shall vacate” their seat if certain events occur, including defection without lawful justification. The word “shall” indicates a mandatory, nondiscretionary obligation, see Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 SC 1; INEC v. Musa (2003) 3 NWLR (Pt. 806) 72. However, recent jurisprudence in Rivers State House of Assembly & Anor v. Government of Rivers State & Ors (supra) refines the understanding that “automatic” vacation requires conjunctive constitutional confirmation (Sections 68(2) and 109(2)) or judicial confirmation. The inherent risks in this ‘conjunctive’ constitutional confirmation requirement will be discussed further below.
- Procedural Safeguard: Sections 68(2) & 109(2) and the Requirement of Evidence
Sections 68(2) and 109(2) mandate that the Senate President or the Speaker must act only upon satisfactory evidence that a ground for vacation has occurred. Their role is declaratory, not constitutive. This safeguard is designed to prevent abuse but demands that, once proper evidence is presented, refusal to act constitutes a constitutional breach.
In practice, however, Speakers and Senate Presidents have often refused to perform this procedural constitutional declaration, even when satisfactory evidence exists. For example, when the late Senator Ifeanyi Ubah, representing Anambra South, defected from the YPP to the APC around 12th October 2023, his letter—read aloud by Senate President Akpabio—clearly stated his reason:
irreconcilable differences with the YPP (source: https://www.youtube.com/watch?v=JbRrF6PaT4g ) . This reason does not fall under the constitutionally exempted justifications. Yet, despite this public evidence, Section 68(2) was not invoked; instead, he was welcomed into the APC and continued to act as Senator until his death on 27th July 2024. His seat was declared vacant on 11th March 2025.
Senator Ubah’s case is just the tip of the iceberg. One can reasonably assume that the Justices in Rivers State House of Assembly & Anor v. Government of Rivers State & Ors did not envisage, and thus failed to address, such instances. It is practically impossible for Senate Presidents and Speakers to invoke Sections 68(2) or 109(2) when the defectors are joining the presiding officer’s political party—or when the presiding officer is defecting, as in the recent Delta State and Rivers State cases.
- Lessons from Rivers State House of Assembly v. Government of Rivers State
In Rivers State House of Assembly & Anor v. Government of Rivers State & Ors (2025) LPELR80539(SC), the Supreme Court clarified that:
- Defectors remain members until their seats are declared vacant via due constitutional procedural confirmation or judicial processes;
- Mass defection without due process does not ipso facto vacate seats;
- Procedural declarations under Sections 68(2) and 109(2) must precede any judicial determination.
Thus, defection—however obvious politically—does not automatically end membership without formal legal steps. The Court rightly rejected political assumptions in place of constitutional procedures, reinforcing due process and legal supremacy.
Notably, while the judgment was unanimous, Justice Chioma Egondu Nwosu-Iheme, JSC, in a detailed concurring opinion, emphasized that defection must be established by empirical evidence. She held that:
- Political parties must formally acknowledge the defection;
- Affidavits or public declarations alone are insufficient;
- Without acknowledgment from the new party and a demonstrable departure from the old party, defection cannot be legally substantiated.
I must state that I find Justice Iheme’s reliance on letters from political parties, while discarding validly sworn affidavits from the 27 lawmakers, somewhat puzzling. A separate article may be needed to critically analyze the practical implications and risks of her reasoning, as politicians will surely exploit such positions to their advantage. That said, her views, while insightful, were not adopted by the majority and therefore remain a persuasive concurring opinion—not binding ratio decidendi.
- Political Manipulation, Judicial Remedies, and Automatic Loss of Seat
What happens when all (or most) lawmakers defect, including the Speaker—as seen in Delta State?
In Delta State Situation:
- Virtually all lawmakers defected from the PDP to the APC;
- The Speaker himself defected;
- He will definitely refuse to initiate the vacancy procedures under Section 109(2);
- They will rely on majority numbers and control of House proceedings to shield themselves.
This presents a constitutional paradox. The pressing question becomes:
Who enforces the constitutional vacancy if those responsible for enforcement are the defectors themselves?
Further:
Where legislative leadership fails to act due to partisan alignment, can affected parties—such as political parties and civil society—invoke judicial remedies without being obstructed by judicial technicalities?
The answer lies in the judiciary’s power under Section 6(6)(b) of the Constitution to enforce compliance. Remedies available to affected parties include:
- Declaratory reliefs confirming legislative seats as vacant; Orders of mandamus compelling the presiding officer to act;
- Judicial recognition of unlawful occupancy.
The Supreme Court in President FRN & Anor v. National Assembly & Ors (2022) LPELR-
58516(SC) reaffirmed the judiciary’s sacred duty to uphold the Constitution. Per Saulawa, JSC, the Court held that:
- No person or authority is above the Constitution;
- The judiciary must courageously protect its jurisdiction;
- Courts must intervene when constitutional mandates are breached.
In Abegunde v. Ondo State House of Assembly & Ors (2015) LPELR-24588(SC), the Court affirmed that:
- Defection without a real division in the original party results in automatic loss of seat;
- Substantively, the defector ceases to have entitlement to the seat once the unlawful defection occurs.
Procedurally, however, a declaration by House leadership or the court is needed to formalize this loss. Hence, the constitutional consequence is immediate, even if formalization is delayed by procedural hurdles.
But in the absence of an express timeline under Sections 68(2) and 109(2), how long must affected parties wait before approaching the court if the legislative leadership fails to declare a seat vacant?
Given the slow pace of litigation in Nigerian courts, do Sections 68 and 109 risk becoming ineffective?
- Broader Democratic Implications
Failure to enforce these constitutional mandates erodes the rule of law and democratic order. As stated in Dapianlong v. Dariye (2007) LPELR-928(SC), constitutional provisions—such as those governing legislative composition—are foundational and must not be sacrificed for political convenience. Courts must remain steadfast in upholding these principles to ensure that democracy remains governed by law, not political expediency.
- Conclusion and Recommendations
Sections 68 and 109 impose mandatory seat vacation for unlawful defection but require judicial or constitutional confirmation where political actors default. The Supreme Court, in Rivers State House of Assembly v. Government of Rivers State, rightly insisted on due process to prevent politically motivated purges while preserving constitutional order. However, this judicial posture may render Sections 68(1)(g) and 109(1)(g) ineffective in practice, especially when legislative leaders—who are often defectors themselves—refuse to act.
Compounding this problem is the slow pace of litigation in Nigerian courts, which frustrates timely judicial intervention and allows defectors to continue unlawfully occupying legislative seats for prolonged periods. Thus, while the Constitution imposes a substantive consequence for defection, the procedural enforcement mechanism remains vulnerable to abuse and delay.
For now, the operative legal standard remains:
- Only the legislature, acting through plenary processes, or
- A competent court, upon credible proof, can declare a legislative seat vacant.
As held in Abegunde v. Ondo State House of Assembly & Ors (supra), unlawful defection substantively terminates entitlement to office, even if procedural formalities are yet to follow.
Political actors must uphold the Constitution they swore to defend. Where they fail, it is the duty of the courts and vigilant citizens to enforce compliance—despite the institutional delays.
Democracy demands no less.
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