On The Sack Of Governor David Umahi, His Deputy And The 15 Members Of The Ebonyi House Of Assembly

By Ojiako Great

The recent case of PDP v Umahi[1] has sparked discussions and hope on a possible turning point in the practice of cross-carpeting in Nigeria’s politics. The plaintiff, PDP, instituted an action against Governor David Umahi and his deputy, Dr Eric Igwe, challenging their decision to retain their office after leaving the party.

The Federal High Court sitting in Abuja ruled in favour of the plaintiff and sacked the governor and his deputy following their defection from PDP, the party under which they had been elected in 2015 and re-elected in 2019, to APC.

Notwithstanding the differing views and takes on court’s landmark judgement, an understanding of some fundamental issues surrounding the case and the judgement is crucial. The following questions are worth considering;

1. Can interested parties sue the governor and the deputy while they are still in power?
2. Who wins elections in Nigeria – the party or the candidate?
3. Can the Governor and the deputy change parties?
4. Can the members of the House of Assembly decamp with the Governor in the circumstances?
5. Are the governor and his deputy still qualified to retain their office after defecting?

Can interested parties sue the governor and the deputy while they are still in power?

One of the preliminary objections raised by defendants in the suit was the immunity of the Governor and his deputy from any civil or criminal action while they are in power. This claim was brought pursuant to Section 308 of the 1999 Constitution.

308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –

(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;

(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:

Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

(3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.

Justice Ekwo, in his ruling, dismissed the objection as lacking merit in line with the Supreme Court in the case Amaechi v INEC[2]. 

In Amaechi v INEC, the court held that the immunity afforded to members of the executive arm of government is not absolute. It can only be invoked in cases where the deferment of plaintiff’s locus standi – right of action – would not be lost forever. Therefore, the defense of immunity cannot be raised in cases where the validity of tenure or office is raised. Holding otherwise would mean that pursuant to Section 308, no action can be brought against a sitting member of the executive even if the claim is of gross electoral malpractice.

Who wins elections in Nigeria – the party or the candidate?

According to Section 221 of the Nigerian Constitution, political parties are the only entities that can canvass for votes for candidates. Pursuant to Section 177 (c) of the Nigerian Constitution, a candidate is qualified to be elected as Governor as a member of the political party that sponsored him.

In Amaechi v INEC, the court interpreted the aforementioned provisions of the constitution and Electoral Act and held that the electoral mandate belongs to the party and not the candidate. From this decision it is clear that the concept of trust exists in Nigerian politics, meaning that the candidate holds the seat in trust for the political party he contested under. Therefore, if an elected official defects during the tenure of his office, the appropriate line of action is resignation because the office is held in trust. Contrary to the general understanding, political parties are not mere instruments for contesting elections. According to Section 97 of the Electoral Act 2010, when a party ceases to exist, an elected candidate under that party will still be identified as a member of that party. The relationship between a political party and elected candidate subsists even after the party’s death.

Regarding the case before us, Governor Umahi and his deputy lost the mandate under the PDP the moment they defected to APC.

Can the Governor and the deputy change parties?

The Governor and the Deputy Governor can change parties. The constitutional provisions in Nigeria that restricts political defections applies to only members of the legislative arm of government.

Moreover, pursuant to Section 40 of the 1999 Constitution, politicians have the freedom to associate and belong to any party for the protection of their own interest.

In Attorney General of the Federation v Abubakar[3], the then Vice President decamped from PDP to Action Congress (AG) to contest for presidency. Onnoghen JSC opined that the President was unable to remove the sitting Vice President for cross carpeting. However, the actions of the Vice President, including his criticism of the administration he was part of, could fall under gross misconduct. This would make him liable for impeachment by the National Assembly under Section 143 (11) of the 1999 Constitution of the Federal Republic of Nigeria.

143 (11) In this section – 

“gross misconduct” means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the National Assembly to gross misconduct.

Can the members of the House of Assembly decamp with the Governor in the instant case?

Members of the Ebonyi State House of Assembly cannot validly decamp with the Governor in the instant case. The law provides for the basis for valid defection from one political party to another by members of State House of Assembly in Section 109 of the 1999 constitution. It states that the member(s) that defect must vacate their seats unless they can prove their cross-carpeting was as a result of division in the former political party, a merger of the former political party with their current party or a merger of factions by a previously sponsoring party.

The 15 members of the Ebonyi State House of Assembly failed to prove this requirement in a separate suit brought by PDP and thus they must vacate their seats.

Are the governor and his deputy still qualified to retain their office after defecting?

The court in Amaechi v INEC held that parties win elections and not candidates. Pursuant to Section 177 (c) of the 1999 Constitution, a person shall be qualified to be elected into the office of governor if he is a member of a political party and sponsored by that party. PDP sponsored David Umahi as its candidate and not APC. Therefore, David Umahi and his deputy are disqualified from continuing their tenure because they have lost the mandate of the winning party, PDP.

In the Atiku case, the issue in contention was whether the President could remove the Vice President for defecting. In the Umahi case, PDP sought to enforce its right as the party mandated to govern Ebonyi State. This is because the 393,042 votes casted for PDP in the 2019 election cannot be transferred to APC.

Scholars have argued that the constitutional procedure for impeaching a sitting governor is through the State House of Assembly pursuant to section 188 of the 1999 Constitution. Section 188 pertains to impeachment of a governor due to gross misconduct in the performance of his office. In this Umahi case, the court is faced with the enforcement of the right of the PDP and the question of the validity of office of the governor. These two issues are within the court’s jurisdiction.

The court declared that by defecting from PDP to APC, David Umahi and his deputy are deemed to have resigned. However, the community reading of Section 306(1), (2) and (5) of the 1999 Constitution clarifies that the resignation of a governor and his deputy takes effect when the notice of resignation is received by the Speaker of the House of Assembly. Thus, the court should have ordered that the governor and deputy submit a letter of resignation addressed to the Speaker of Ebonyi State House of Assembly.

Conclusion

Nigerian courts have ruled that political parties win elections and not candidates. Consequently, elected member of the executive arm of government will lose their office after defecting. The court’s judgement that the winning votes of the PDP are not transferable to the APC is constitutional. Nonetheless, the court’s declaration that the governor and his deputy were deemed to have resigned after cross-carpeting did not take Section 306 (1), (2) and (5) of the 1999 Constitution into consideration.

The defendant has appealed and the Court of Appeal has granted a stay of execution. We wait to see how the appellate court rules knowing that this case may end up at the Supreme Court.

Written By Ojiako Great

[1] FHC/ABJ/CS/920/2021

[2]  (2008) 5 NWLR (Pt.1080) 227

[3] (2007) 6 NWLR (Pt.1031) 626