Respectfully, Sir, Senator Akpabio’s Defection Case Has Not Opened Any New Frontiers For A Constitutional Amendment? (A Rejoinder By Sylvester Udemezue)

• Introduction (An Aside): Expelled or Defected?

A breaking news on August 08, 2018 came under the head, “Senator Akpabio Officially Dumps PDP for APC.” (see <https://www.channelstv.com/2018/08/08/senator-akpabio-officially-dumps-pdp-for-apc/> accessed May 18, 2019). Channeltv.com had summarized the news report thus:

“Senator Godswill Akpabio has officially announced his defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC). The former governor made the announcement on Wednesday at a rally organised by the APC to welcome him into the ruling party in Ikot Ekpene area of Akwa Ibom State. Before his defection, Senator Akpabio was the Senate Minority Leader and a strong member of the opposition party. The Secretary to the Government of the Federation, Boss Mustapha; APC National Chairman, Adams Oshiomhole; and the party’s national leader, Bola Tinubu, were among the leaders who stormed Akwa Ibom for the event. On Tuesday, Akpabio informed the Senate leadership and his PDP colleagues in the chamber that he was leaving the party for the APC. He had said, “This letter is to inform you of my resignation as the Senate Minority Leader with effect from August 4, 2018.”

Most media stations/houses in Nigeria carried a similar report. On dailypost.ng, it was “Senator Godswill Akpabio Officially Dumps PDP for APC.” See also “Akpabio finally dumps PDP” (guardian.ng). At that rally, Senator Akpabio himself had tried to justify his defection from the PDP to the APC. He explained that he defected from PDP to APC “in the national interest” and because President Muhammadu Buhari “is  a man of integrity and a nationalist,” saying there was “the need to put all hands on the deck to salvage the situation in the country and not to aggravate it.” According to him, “the country is at war … and everyone should put heads together. I decided to join to emancipate the people and provide succour for the people.” Below is part of his speech at the rally:

“I decided to join the APC at this time because I am a nationalist. In times like this, everybody should support to bring peace to our dear nation; to stop the killings and ensure employment for our teeming youths… Southsouth cannot stand alone on its own. We need to collaborate with others. I consulted. What I have done today is to take the people of the South-South to the centre. With my exit, this is the end of PDP in Niger Delta. The People’s Democratic Party (PDP) of today had no vision and the leadership is arrogance.”  (see “Why I defected to APC, by Akpabio,” <https://thenationonlineng.net/why-i-defected-to-apc-by-akpabio/>  accessed May 18, 2019).

What is more? On Senator Akpabio’s official wikipedia.org still contains the report that “in August 2018, Senator Akpabio resigned as the Senate Minority Leader, after he had announced his defection to the All Progressive Congress. His defection was marked by Political rally in his hometown at the Ikot Ekpene township stadium, Akwa Ibom State.” (<https://en.wikipedia.org/wiki/Godswill_Akpabio> accessed May 8, 2019). The was an earlier report that “Akpabio Resigns as Senate Minority Leader.” (<https://www.channelstv.com/2018/08/07/akpabio-resigns-as-senate-minority-leader/> accessed May 18, 2019):

“A former Governor of Akwa -Ibom State, Godswill Akpabio, has resigned his position as the Minority Leader of the Senate. Akpabio, who represents Akwa-Ibom North-West Senatorial District in the National Assembly, addressed the letter to the Deputy Senate Minority Leader, Emmanuel Bwacha of the People’s Democratic Party (PDP).”

It appears from the above that Senator Akpabio was not expelled from the PDP, but had voluntarily defected from the PDP to APC; that he “dumped” the PDP and not otherwise. The Nigerian electronic, social and print media space was awash with the news of Senator Akpabio’s defection from the PDP to the APC in August 2018. At no time did Senator Akpabio issue any statement refuting any of such reports. On the contrary, he himself had openly confirmed the reports and openly bragged about his defection which, according to him, was a right step in the right direction. Further, there would have been no need for his “Letter of Resignation” from the position of Senate Minority Leader if he had previously, truly, been “expelled” from the PDP. This is because, the expulsion would have automatically terminated his Senate Minority Leadership position, and rendering needless any formal letter of resignation from him to the Senate. Until May 14, 2019, from available news, there was no doubt in anyone’s mind that it was Senator Akpabio who had in August 2018 voluntarily left, dumped, abandoned the PDP for the APC, unless, anyhow, all the news reports above had happened only in a dream — our dream. Or, perhaps, it is now possible, easy, (at least, in Nigeria) to fool all the people all the time! One could, therefore, easily see why it was a huge shockwave to be treated with this strange breaking news of May 14, 2019: “I was expelled by PDP; I didn’t defect, Akpabio tells court.” (see <https://businessday.ng/politics/article/i-was-expelled-by-pdp-i-didnt-not-defect-akpabio-tells-court/> accessed May 18, 2019). Equally shocking, if not more, with due respect, is the news report that His Lordship, Hon Justice Abang, had struck out the defection suit against 53 Senators, on grounds that the plaintiff (LEDAP) lacked locus standi to institute the suit, and yet, the same court assumed jurisdiction over Senator Akpabio’s case (instituted by the same plaintiff) and dismissed the case on merit. This, I understand to mean that His Lordship had the jurisdiction to hear the case against Senator Akpabio (instituted by LEDAP) but lacked jurisdiction to hear the case against 53 other Senators (instituted by the same plaintiff). I have not read the full judgment, but based on the news reports, I submit, with the greatest respect to the Court, that one major question arises from His Lordship’s decision on locus standi in this case: If the Non-Governmental Organization, LEDAP, lacked locus standi against the 53 senators, where did LEDAP get locus standi against Mr. Akpabio, a fellow senator? Or, could it be that the judge was just interested in hearing the merit of Senator Akpabio’s case, in spite of the locus standi question, and notwithstanding the judge’s decision on LEDAP’s lack of locus in respect of the other 53 senators? But, then, if the judge was interested in hearing Senator Akpabio’s case, does that not raise another question as to whether the judge could on his own (in any circumstance where extant law says otherwise) confer jurisdiction on himself? Or, did the judge simply apply different strokes to similar scenarios? How logical or valid is such in law? Anyway, “Wonders shall never end” is a popular exclamation in situations such as this! But, the truth is, all the aforesaid are just an aside, and, consequently, beside the point because the present paper is not about whether Senator Akpabio had defected or was expelled, neither it about the legality or otherwise of his defection/expulsion, nor is it a direct critique of the said judgment of the FHC, eminently presided over by Hon Justice Okon Abang. This paper is a reaction to the news report of May 18, 2019 under the headline, “Senator Akpabio’s Case on Defection Opens a New Frontier ror Constitutional Amendment—-Monday Ubani.” This paper examines Mr. Ubani’s observation and recommendation for a constitutional amendment; the paper respectfully offers reasons and legal authorities to advance its conclusion that Mr. Ubani’s call for a constitutional amendment is unnecessary, on grounds that, as the writer thinks, Senator Akpabio’s defection case/judgment has not thrown up anything novel nor uncontemplated by the 1999 Constitution, to warrant an amendment in the constitution, unlike what had happened in or about 2015 in Kogi State regarding the Audu Abubakar-Faleke imbroglio which rightly had thrown up a situation previously uncontemplated by the grund norm.

• Background

Following reports of Senator Akpabios’s defection from the PDP to the APC, a Non-Governmental Organization (NGO), the Legal Defence and Assistance Project (LEDAP) had filed a suit at the Federal High Court, seeking an order declaring as vacant, the seats of 54 members of the National Assembly, including Senator Akpabio, accused of unlawful defection from the parties which had sponsored their elections to other ones. The Plaintiff had anchored its suit on section 68(1)(g) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended, which provides that the seat of a legislator who defects from his or her Party without any division in the party before the end of the tenure for which the Party sponsors the lawmaker’s election shall be deemed vacant. However, as reported by the NigeriaLawyer.com, The Punch and other media platforms, the presiding judge, Hon Justice Okon Abang, in his judgment, held that the provision of Section 68(1)(g) of the constitution was not applicable to Senator Akpabio who “neither defected nor decamped” but only “moved” from the PDP following his expulsion. While the learned judge threw out the case of the 53 lawmakers without considering the merit of the case on the grounds that the Plaintiff, LEDAP, lacked locus standi, the judge dismissed that of Senator Akpabio on merit, the ground that the Senator did not defect as defined under Section 68(1)(g) of the 1999 constitution as amended, but that he moved into a new Party out of frustration. The Judge held on to this view based on a letter dated August 2. 2018 written by the PDP expelling the Distinguished Senator from the Party. “Having been expelled by the PDP,” said the judge, “Senator Akpabio was at liberty to join another political party of his choice, so, to declare that he has defected to another political party has no backing of the Constitution,” as that would tantamount to “punishing him for exercising his right to Freedom of Association under Section 40 of the Constitution of 1999 as Amended.” (See “Akpabio didn’t defect to APC, he moved because PDP expelled him – Court,” <https://punchng.com/akpabio-didnt-defect-to-apc-he-moved-because-pdp-expelled-him-court/> accessed May 18, 20019).

Reacting to the 17 May 2019 judgment of the Federal High Court, as reported, respected senior lawyer, public commentator, avid writer, human rights activist and ex 2nd Vice President of Nigerian Bar Association, Mr. Monday Ubani, on 18 May 2019 observed/declared that Justice Abang’s judgment in this case had “expanded the provision of the constitution” and accordingly, had thrown up a situation not contemplated by the 1999 Constitution, thus necessitating a constitutional amendment, to remedy the novel situation. Mr. Ubani then concluded:

“The constitution never envisages a situation where the mother Party will FOIST UPON THE ELECTED MEMBER A FAIT ACCOMPLI SITUATION THAT WILL RENDER THAT MEMBER POLITICALLY IRRELEVANT IF HE OR SHE TAKES NO PRACTICAL STEP TO STAY AFLOAT…As we look forward to have this Section tinkered with by those who are saddled with the responsibility of amending our constitution under Section 8 of the 1999 Constitution as Amended, we hope that they will take critical look to the issues raised above and address them squarely and fairly and save Nigerians from this perennial arguments and counter arguments whenever our lawmakers defect from one political party to another.”  (https://thenigerialawyer.com/senator-akpabios-case-on-defection-opens-a-new-frontier-for-constitutional-amendement-monday-ubani/> accessed May 18, 2019)

The question for determination, arising from Mr. Ubani’s observation and proposition, is whether there is indeed any need for a constitutional amendment as a result of the judgment of the Federal High Court in the present case. With the greatest respect to my learned friend, Mr. Ubani, I answer this question in the NEGATIVE. My reasons follow from here.

• Why Akpabio’s Defection Case is not a Novel Case

First, we look at the legal meaning of some of the terms or words relevant for this discussion. The following definitions are taken from Black’s Law Dictionary (see Garner, B, In: Black’s Law Dictionary (9th ed., West/Thomson Reuters, 2009) 658, 662, 1073 & 1276).  (1) EXPULSION means “an ejectment or banishment, either through depriving a person of a benefit or by forcibly evicting a person.”  (2) To be EXPELLED means “to be driven out or away; to be ejected especially with force.” (3) A POLITICAL PARTY is “an organisation of voters formed to influence the government’s conduct and policies by nominating and electing candidates to public offices.” (4) A MEMBER of an organisation is “one of the individuals of whom an organisation or a deliberate assembly consists, and who enjoys full rights of participating in the organisation … (5) To DEFECT from a political party means “to forsake the political party, especially so as to join the rival or opposition; abandonment of loyalty.” See ALI V OLISAKWE (2010) LPELR-3743 (CA). (6) To MOVE means “to pass from one place or position to another; to go from one place of residence to another; to change from one place or position to another.” (<https://www.dictionary.com/browse/move> accessed may 18, 2019).

A close look at the legal meaning of “expel” or “expulsion” leaves no one in doubt that when a member of a political party is validly expelled from the party, that member automatically ceases to be a member of the political party and ceases to enjoy any right or privilege conferred on him by, and or dependent on, such privilege. Accordingly, since the learned Judge had upheld as valid the “letter dated August 2. 2018 written by the PDP expelling the Distinguished Senator from the Party,” it then necessarily followed that, as at August 02, 2018, Senator Akpabio had ceased to be a member of the PDP, judging from the legal meaning of “member” and “political party,” as given above. Being, as from 02/08/2019, a person who was NO longer a member of any political party in Nigeria, Senator Akpabio was free, constitutionally, to join or associate with any organization in Nigeria, including a political party. It then follows that, as the judge rightly concluded, Senator Akpabio’s decision to join a political party (the APC) was in exercise of his freedom of peaceful assembly and association in line with section 40 of the CFRN, 1999, as amended, which provides that “every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.” With due respect to Mr. Ubani, I do not see anything extraordinary or novel in this scenario other than what I had pointed out as an aside, under paragraph A above. His Lordship agrees that Senator Akpabio was ejected from the PDP, leaving him “party-less.” This in effect means that, as at the date Senator Akpabio joined the APC, in August 2018, he was not a member of any other political party.

Similarly, with due respect to the presiding judge, the question of Senator Akpabio having “moved” from the PDP did not arise. A person cannot be said to have moved from Political Party A to Political Party B unless the person was a bona fide member of Political Party A as at the time of the person’s “movement’ into Political Party B. I humbly submit that, having decided that Senator Akpabio had been validly expelled by the PDP prior to his decision to join the APC, the Hon Judge was wrong to have resorted to any conclusion that Senator Akpabio had “moved” from the PDP “out of frustration” into the APC.  Use of the word, “move” in this context, by the learned Judge is, with respect, inappropriate. Movement” from one party to another party indicates a voluntary action. Such movement could be constitutionally justifiable if one moves from party A to party B, as a result of division in party A. (see section 68(1)(g) of the CFRN, 1999). Such movement could on the other hand be undertaken when there is no division in Party A in which case the movement is not constitutionally justifiable and would amount to type of defection which might render the defector’s seat vacant. Either way, with respect, it was inappropriate for the judge who had ruled (1) that Senator Akpabio was not a member of the PDP as at the time he joined the APC, having been expelled by the PDP and (2) that section 68(1)(g) of the CFRN, 1999 dealing with defection does not apply to Senator Akpabio’s case, to have turned around and held that Senator Akpabio’s was a movement from PDP to APC. The right thing to say, which the His Lordship has said, is that Senator Akpabio merely exercised his right to freedom of peaceful assembly and association under section 40, CFRN, being at that time NOT a member of any political party in Nigeria, and as such 100 per cent free as a Nigerian, to join any political party of his choice, if he desires.

• Conclusion

Based on the discussion above, I humbly submit, with due respect to my learned friend, Mr Ubani, that I do not see anything in the Senator Akpabio defection case that was not contemplated by the CFRN, 1999. Hence, the call for a constitutional amendment as a result of the case is unnecessary. I now pose some more questions: (1) Since there is nothing new, why call for a constitutional amendment thereon? (2) Is it to amend the constitution to define the status of an “expelled” party member? That is unnecessary because the implication of expulsion is crystal clear — the person expelled automatically ceases to be a member! (3) Is it to guide the person expelled on what next steps to take? That is unnecessary because, being a full-grown adult, the affected person reserves the right to make any decision for himself— he could remain “party-less,” if he wishes!  Many adult in Nigeria today do not belong to any political parties –e.g., civil servants, Olusegun Obasanjo, Yakubu Gowon, Abdulsalami Abubakar, Matthew Kuka, and countless others. However, since independent candidacy is not recognized by the 1999 Constitution, and Senator Akpabio had the intention of contesting for a seat in the Senate, the only option available for him after his said expulsion from the PDP was to look for another political party and join, so that he might pursue or realize his ambition thereunder. This could be the reason he quickly chose to join the APC, which then closed the case. (4) What, then, is in it, that warrants a constitutional amendment? Absolutely nothing, in my humble opinion!

Finally, I am unable to see how the PDP had foisted a “FAIT ACCOMPLI SITUATION” upon Senator Akpabio who after his “expulsion” had quickly joined another political party and was warmly welcome and indeed was shortly thereafter nominated a Senatorial Candidate for his senatorial district on the platform of his new political party – the APC. (5) Was there any assurance that Senator Akpabio would have been nominated to such a position by the PDP if he had remained in the PDP? No, because vying for a Senate seat was/is not Senator Akpabio’s birthright! It was/is a position to be contested for through a party primary election and whoever emerged winner would go ahead to fly the party’s flag in the general elections. I further submit that, since Senator Akpabio’s case has now suddenly (turned around to shockingly) become (as the court held) a case of “expulsion” instead of the “defection” that we all knew prior to 17 May 2019, there is nothing wrong, novel, nor that creates a “fait accompli situation” when a political party expels a member who the party thinks deserves expulsion under the party’s bye-laws. The right/power to suspend or expel a member is inherent in a political party, provided due process is followed in line with the party’s constitution and the Constitution of the Federal Republic of Nigeria. We should be careful so as to not be seen to be crying more than the bereaved! Senator Akpabio has not alleged that his said “expulsion” from the PDP was illegal or ineffective. He happily joined another political party at an elaborate rally held at Ikot-Ekpene, Akwa-Ibom State, and moved on with his political career! Case closed! The only reason/purpose Senator Akpabio had brought out and tendered (in court) the said “Letter of Expulsion” was to prove (before the court) that his own case did not and could not come under section 68 of the Constitution and accordingly, that his seat in the Red Chambers ought to not be declared vacant. Indeed, he could have joined any other political party other than the APC; there are over 80 political parties in Nigeria! So, discussions relating to “fait accompli” or illegality or otherwise of the expulsion do not arise, just as call for constitutional amendment, based on the case, is clearly unwarranted.

Respectfully,

Sylvester Udemezue, udemsyl@hotmail.com

(18/may/2019)