THE GUARDIAN
THE GUARDIAN, Sunday, April 6,
www.ngrguardiannews.com
POLITICS
DILEMMA OF DEFECTING LEGISLATORS Ferdinand Orbih is a Senor Advocate of Nigeria (SAN). He spoke to ALEMMA-OZIORUVA ALIU on the High Court ruling that stopped defecting lawmakers from atualising their dreams. hat is your position on the recent court declaration saying that defecting lawmakers in the House of Representatives should first vacate their seats? MY humble view is that the ruling is in line with the constitution of the Federal Republic of Nigeria. The problem we have in this country is that when people know the right thing, they prefer to do the wrong thing. To understand why we have that provision in the Constitution, we must remember that in 1952, the late Nnamdi Azikiwe under the banner of the NCNC won election into the Western Region House of Assembly and was poised to form the government of that region. At the first sitting of parliament, as a result of the crossing over of the NCNC members to the Action Group (AG), Zik that was expecting to form the government as Premier with majority members of the NCNC and its allies in the House, woke up and found himself in the minority. That created its own problems for the country. Again in Western Region, when the AG broke into two factions and initially, Chief SLA Akintola’s faction was in the minority, but with a lot of deft political manoeuvres, persuasions and other things that went on behind the scene, he got members of the Awolowo faction of the AG to defect to his own faction and before you know it, Akintola was in a position to form the government of Western Region, even though it appeared to be a rebellion of the mainstream of the AG. These and many other incidents in the Nigerian political history informed the framers of the 1999 constitution to put that clause there that should you desire to cross over from the party whose platform you use to win election to, either the National Assembly or a state House of Assembly as the case may be, you must first of all resign from the House before you can cross carpet and when you lose the membership of the house by resigning, it means before you will come back to the House, you must go back to the electorate. This makes a lot of sense because the Supreme Court held in Amaechi’s case that when Nigerians vote, they are not voting for an individual, they are voting for a political party. So where is the moral justification for you to use a platform to get a particular political position and then you abandon that platform without reference to the people that gave you their mandate? You must seek a fresh mandate; so I don’t know what all these controversies are about, if the people are sure of their popularity, they should go back and seek a fresh mandate. If you are popular in your constituency and the people agree that your new party is where to go, you don’t have any problem, they will still vote for you and you will still come back to the House, but don’t take the mandate that was given to you by one political party for another. You do not have the right under the Constitution to abandon that mandate or hijack it and go and deliver it to another party that did not know the mindset of your people that sent you to go and represent them. Don’t forget, we are operating a representative democracy. That is what some of our legislators forget, they didn’t put themselves there, the people voted for them to go and represent their interest in the various houses of parliament. We must know where we are coming from and the mischief the constitutions were designed to cure. But between 1999 and now, we have had several defections and there have never been any such court order; so why now? The fact that a people have been doing the wrong thing and even if they keep repeating
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Defecting Lawmakers Are Bound To Obey Court Order, Orbih
that thing over a thousand times, it will not make that wrong thing to be right. What is right is right and what is wrong is wrong. Secondly, the fact that nobody in the past has taken a decision to ignite this particular section of the Constitution does not mean that the Constitution means something different. But why have they not used it? I suspect that before now, the parties lacked the political will to enforce that provision of the Constitution, so it was taken for granted that it was more-or-less a toothless bulldog meant to decorate the Constitution and which can only back but will never bite. But this time around, the stakes are very high, 2015 will mark a watershed in the political history of this country, everybody is at alert and conscious so any move that will give an undue political advantage to your opponent, it is in your interest to resist it. Maybe if these defections have happened about three or two years ago or maybe at the infancy of the tenure of this National Assembly, nobody could have bothered, but Nigeria is at a threshold of monumental political development, whether we like or not. That is why you are seeing what you are seeing now and it is good and I hope and pray that a speedy interpretation will be given to this particular provision of the Constitution and the issue will be taken further to the Court of Appeal and thereafter to the Supreme Court and thereafter we can have a final word on this because it will help us. You cannot behave as if there are no rules governing the game you are playing. The rules are there and you must obey them. What baffles me is that if we are in a country where people have conscience, you don’t even need a constitutional provision to know that if you went to the House on one platform that is no longer useful to you, you ought to resign your membership of
You cannot behave as if there are no rules governing the game you are playing. The rules are there and you must obey them. What baffles me is that if we are in a country where people have conscience, you don’t even need a constitutional provision to know that if you went to the House on one platform that is no longer useful to you, you ought to resign your membership of that House and test the popularity of your new platform; so I don’t know why they are complaining. that House and test the popularity of your new platform; so I don’t know why they are complaining. But they have insisted they would not abide by the order saying they have left the PDP. What is the implication of this? You see, that is the tragedy of the Nigerian setting, it is very unfortunate that those that are supposed to show example are the ones setting bad example, because as a legislator, you swore an oath to abide by, defend and protect and uphold the Constitution of the Federal Republic of Nigeria and that Constitution has been interpreted by the court, which is a creation of the constitution and you open your mouth shamelessly to say that you will not abide by the pronouncement of the court? It is a sad commentary on the way we are as a people live, we have a duty, all of us to remember that if we overthrow the rule of law, then the rule of anarchy will be enthroned to the detriment of everybody and we will be go back to the Hopkins law of nature, where life was nasty, brutish and short and where nobody will have right, obligation or responsibility. I believe that it will be in the interest of the country for them to have a rethink and abide by the court judgment unless of course, they take steps to go back to that court or the Court of Appeal as the case may be to ask for a stay of execution of the order asking them to vacate their seat. Nobody is
above the law and nobody is below the law, we all have a duty to comply with the pronouncement of the court. But why is not possible to implement a court order or judgment immediately instead of waiting till it gets to the Supreme Court? Each case has its own character, there are some categories of cases where the pronouncement of the court is merely declaratory, in that case, there are no orders to execute and there are no orders to stay execution. So, even an application of stay of execution for such a judgment or ruling will be of no meaning. There are some other cases where positive orders are made, if you appeal without seeking an order for stay of execution of such orders, you have a duty to comply with those orders and the judgment of the court even when you are on appeal. There are yet another category of cases where you appeal and ask for stay of execution of the orders made by the court, when that is done, it means you have somehow put the execution of that judgment in abeyance until the appeal is determined so the status quo before the judgment can be maintained. In the eyes of the law, you are not disobeying the order of the court because you have appealed and you have asked the court to suspend the effect of that judgment until the Court of Appeal says the judgment was right or wrong.
Notice Of Appeal, Is A Notice Of Stay Of Execution From John Akubo, Lokoja
ARRISTER Williams Aliwo, former chairman of Nigeria Bar Association, Kogi State chapter, has said the provision that the lawmakers were to vacate their seats before actualising their defection has been there, but has not been explored because the ruling party has been the major beneficiary. According to him, “without going into the substance of the judgment, the implication is that, if the lawmakers did not appeal, they cease to be members of the House, however, the electoral act makes provision that says every elected office holder from the implication of any judgment that nullifies his position, if the person appeals (because it provides that any appeal filed by an elective office holder) will enforce a stay automatically of execution of that judgment,
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and so, we are not likely to see the implementation of that judgment until we probably get to Supreme Court.” He said the electoral act saves them from vacating their seats if they appeal adding that their notice of appeal automatically acts as a stay of execution. On the over zealousness of the judge in declaring their seats vacant when the prayer does not include that, he said, “if what they prayed for simplicita was to restrain the National Assembly from effecting any leadership change and the judge went beyond that to award the relief that were not asked for. The higher court certainly will determine that because courts are not Father Christmas, and they don’t operate like Father Christmas, and even with Father Christmas, you need to approach it before it gives you what you want. “So, if they did not approach the court for what the court
gave them, the Court Of Appeal will look at it in detail and certainly you will see a different thing.” He said the provision was made to forestall the kind of experiences whereby politicians behaved like prostitutes in the past civilian governments. “It was meant to tame politicians from jumping in and out of one party to another, but it had always been dormant for as long as the ruling party enjoyed the cross-carpeting. “It was activated when the ruling party was already losing grip of its leadership. I think that was when it became obvious otherwise people have been cross-carpeting from other parties to PDP it never raised any dust.” He said they are political matters but the legal aspect of it would be treated in the law court. He said at the end what will come out would be the best adding that the provision is good for our system.