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Sunday, April 6, 2014
THE GUARDIAN
POLITICS
www.ngrguardiannews.com
DILEMMA OF DEFECTING LEGISLATORS
ADEDIPE:They Have A Difficult Task To Prove Division In PDP Ifedayo Adams Adedipe, a Senior Advocate of Nigeria (SAN), is an expert in constitutional law. He told KELVIN EBIRI that unless the 37 defected Representatives could show by credible, legally admissible and convincing proof that their defection is as a result of a division in the Peoples Democratic Party, they might have herculean task to remain on their seats.
Mark
What is the implication of the court judgment on the defected representatives? HE relief sort by the Peoples Democratic Party (PDP), as we read in the newspapers, was that the All Progressives Congress (APC) lawmakers should not be allowed to effect a change in the leadership of the House of Representatives. So, I do not think the issue is whether by the virtue of their defection, they had automatically lost their respective seats or not. That said, if the claim before the Federal High is to the effect that having been elected on the platform of the PDP, and they defected to another political party, then, they stand to lose their seat in line with the provisions of the constitution, except the defecting lawmakers can show by credible, legally admissible and convincing proof that their defection is as a result of a division in the PDP. Now, there might be difficulty there. What is the type of division envisaged? You could say that, one, during the PDP mini-convention, some members walked out. You could see that as division, while other could see that as disagreement not amounting to division. On the other hand, when some of them said they now belong to New PDP, you could say that is a division or not a division. It is all a question of evidence. And then, it depends on the judge who is hearing you. One judge might thing what happened is a division; another might think it is not a division, but intra-party disagreement. An intra-party disagreement may not necessarily amount to a division. You may disagree with the policy of the party and you do not attend their meetings by staying away. It could amount to division, and by reason of that, the party is polarised. But when you look at the circumstances of the PDP in the last one year, or so, it is quite tempting to think that there was a division that is capable of permitting people to leave and join a rival party. Some people will see that way; some might think it is not sufficient. For instance, when you say there is a division, some will say where is the division. You have only one chairman and not two. You have only one party secretary, you don’t have two. You have only one national secretariat and not two. When you say I am the authentic chairman of the party and someone else says no, I am the authentic. If you have that kind of a situation where you said the party’s secretariat is N0 10 Wadada and someone else said it is No11, then people are bound to say there is division. But when you don’t have that kind of a situation, you might come to the conclusion that there is no division. I cannot close my eyes to the fact that some senators and governors actually moved to another party. If that is not evidence of divi-
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sion in the party, I will wonder what is division. But the layman’s opinion of division is different from the law’s opinion of division. So, as for the lawmakers, they have herculean task of showing that there was division that led them to move from PDP to APC. The chief executives have a leeway because the constitution does not say that they will lose their seat, but for the lawmakers, the constitution expects them to lose their seats. The onus is on them to say we ought not to lose our seats because there was a division. But police had sealed off offices of the New PDP in Abuja and Port Harcourt? It is a question of evidence. If the lawmakers wish to argue that there was a division, they will bring the evidence and present it to a judge. Will this judgment prevent politicians from cross carpeting? Ordinarily, it should, but you know Nigerians, we argue over everything and we disagree with every decision that we think is not in our favour. I am not in a position to know whether it will moderate the conduct of politicians. If I were to contest under the PDP, for instance, and if for any reason I want to cross over to another party, I will resign, because I should be sure that I could win. Let’s not forget that some of them get to their post by virtue of the force of the party. So, if you are leaving, you are probably going with the goodwill of the party to the other. But, if you think it is your person that won an election, then you can resign and still go ahead and win another election. But you that our political party system is still at infancy. I once described the political parties as mere platforms. They are yet to give us their ideological difference. What is the difference between PDP and APC? I do not see any. Should the lawmakers vacate their seats as demanded by the PDP?
I don’t think that that was the case before the court. The case that went to court is that you should not change the leadership. As to the issue of vacating their seats, I think that a substantive suit should be filed for a declaration that having changed party, they automatically lose their seats. I think there should be a case like that. It appears the leadership of the House is not prepared to declare those seats vacant? The party that stands to gain, mainly the party that received the new members, will oppose it. The party that lost has a duty to get a court by order of mandamus to compel the Speaker to give effect to the constitution. In any event, if you ask me, this thing should not detain us in this country if we are serious people. If you elected under a platform and you leaving and the constitution says you lose your seat, if you are sure you can win, lose it and go for fresh election. If you are popular, you will still win. Why are they afraid if they can win? In this country, we always want the law to favour us all the time; it does not work that way. Is it legal for a court to bar lawmakers from participating in leadership change in the House? My view is this. That is an internal affair of the National Assembly. It is a legislative thing and they have their own rules and procedures but subject to the provisions of the constitution. What they the PDP should do if they have not done so, is to go and seek a declaration whether having left; these people do not automatically lost their seat. That is the relief they should b seeking to wish a judge would make a pronouncement. Until you have that, you cannot say they should leave. The 37 Reps have appealed the judgment, which means the matter will drag on. Why can’t matters like this end at the lower court?
A man goes to a bank to seek for a loan, and he is given the loan. A few months to the expiration of when he is due to repay, he goes to a court to say that the bank should not be allowed to reclaim the money. And then, another 10 to 15 years they are in court. We need to amend our laws. But let me say that the role of Court of Appeal in gubernatorial cases in the past led to some people advocating for gubernatorial matters to go to Supreme Court. I have been uncomfortable with some decisions of the Court of Appeal in election matters were at best controversial and tendered to erode confidence.
We make a mess of eating our egg in this country. The process of judicial relief in this country is painfully so slow and expensive. It shouldn’t be so. For instance, if you have a settled principle of law applied over the years, maybe by the Supreme Court and if such case happens, why should you allow it to go through the whole legal process up to the Supreme Court to repeat what has been said again and again and again? In other words, there really ought to be a check on the nature of cases that will eventually get to the Supreme Court. You will find some cases on the face of it there is no merit for appeal, yet people will say the constitution permits me to appeal. What the statue ought to be is to impose stiffer penalty to say if you lose an appeal, you pay the legal fees of your opponent. Because, sometimes, some cases are really unreasonable. A man goes to a bank to seek for a loan, and he is given the loan. A few months to the expiration of when he is due to repay, he goes to a court to say that the bank should not be allowed to reclaim the money. And then, another 10 to 15 years they are in court. We need to amend our laws. But let me say that the role of Court of Appeal in gubernatorial cases in the past led to some people advocating for gubernatorial matters to go to Supreme Court. I have been uncomfortable with some decisions of the Court of Appeal in election matters were at best controversial and tendered to erode confidence. But then again, you will find that in every human endeavour, mistakes will be made and we need to correct those mistakes. Amendment to the constitution that now permits appeal to the Supreme Court in election matters involving governors is geared towards that. But I think there ought to come a time when certain decision ought not to go beyond the Court of Appeal. Will this judgment affect the governors who have defected from PDP to APC? I do not think so. I have said it that the Supreme Court has decided that point in Abubakar against INEC wherein President Obasanjo sort to remove from office Vice President Atiku Abubakar. The Supreme Court said sorry, even though Atiku has crossed over as Vice president elected on the platform of the PDP to the Action Congress as it then was, the Supreme Court said the only way to remove a chief executive is provided for in the constitution and it is either by resignation; impeachment, death, a declaration of mental incapacity. Unless you do that, you cannot remove a chief executive. Despite the fact that they have decamped, they will not lose their seat.