NDC Faults Delta Assembly Over Egbetamah’s Seat, Urges INEC to Reject Action

The Delta State House of Assembly's declaration of Hon. Collins Egbetamah's seat vacant following his defection from the All Progressives Congress (APC) to the Nigeria Democratic Congress (NDC) has ignited a significant legal debate. The NDC has vehemently condemned this action, urging the Independent National Electoral Commission (INEC) to disregard the Assembly's decision. This development underscores the intricate constitutional provisions governing the tenure of legislative seats in Nigeria, particularly Section 109(1)(g) of the 1999 Constitution (as amended), which mandates the vacation of a seat upon defection, subject to specific exceptions. The controversy highlights the delicate balance of powers between legislative bodies, political parties, and electoral commissions, necessitating a thorough examination of judicial precedents and statutory interpretations concerning political cross-carpeting and the due process required for declaring a legislative seat vacant.

The political landscape in Delta State, Nigeria, has been stirred by the recent decision of the Delta State House of Assembly to declare the seat of Hon. Collins Egbetamah, representing Udu Constituency, vacant. This action followed Egbetamah's defection from the All Progressives Congress (APC), the platform on which he was elected, to the Nigeria Democratic Congress (NDC). The NDC has swiftly reacted, denouncing the Assembly's move as unconstitutional and calling on the Independent National Electoral Commission (INEC) to reject the declaration and refrain from taking any action based on it.

This incident brings to the fore critical questions regarding the powers of state legislative assemblies to unilaterally declare a member's seat vacant, the constitutional implications of political defection, and the precise role of INEC in such matters. The NDC's stance suggests a belief that the Assembly's action bypasses established legal procedures and infringes upon the member's fundamental rights. This article will delve into the constitutional and statutory framework governing the vacation of legislative seats in Nigeria, analyze relevant judicial pronouncements, and assess the legality of the Delta State House of Assembly's declaration in light of the NDC's appeal to INEC.

The legal framework for the tenure of legislative seats in Nigeria is primarily enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Specifically, Section 109(1) outlines various circumstances under which a member of a State House of Assembly shall vacate their seat. Among these, Section 109(1)(g) is particularly pertinent to cases of political defection. It stipulates that a member shall vacate their seat if, having been sponsored by a political party, they become a member of another political party before the expiration of their tenure.

Crucially, this provision includes a proviso: the member's defection is excused if it results from a division in the political party of which they were previously a member, or from a merger of two or more political parties or factions. The interpretation of what constitutes a 'division' sufficient to justify defection without losing a seat has been a subject of extensive judicial scrutiny. Furthermore, Section 109(2) mandates the Speaker of the House of Assembly to give effect to subsection (1), provided that satisfactory evidence is presented to the House that any of the provisions of that subsection has become applicable to the member. This implies that the Speaker's role is declaratory, not constitutive, and requires a determination by the House or, in contested cases, by a court of law. The Independent National Electoral Commission (INEC) is constitutionally empowered to conduct elections, including bye-elections to fill vacancies, but its role in declaring seats vacant is distinct and limited.

The Delta State House of Assembly's declaration of Hon. Collins Egbetamah's seat vacant must be critically examined against the backdrop of Section 109(1)(g) of the 1999 Constitution (as amended) and a series of judicial pronouncements. The Supreme Court has consistently held that the constitutional provision for vacation of seat upon defection applies strictly to legislators and not to executive office holders like the President, Vice-President, Governors, or Deputy Governors. This distinction was firmly established in the landmark case of *Attorney-General of the Federation v. Atiku Abubakar* (2007), where the Supreme Court ruled that the President lacked the power to declare the Vice-President's seat vacant due to defection.

For legislators, the application of Section 109(1)(g) is not always straightforward due to its proviso. The Supreme Court, in *Abegunde v. Ondo State House of Assembly* (2015), clarified that the 'division' in a political party that would justify a legislator's defection without losing their seat must be a fundamental division affecting the national structure of the party, leading to parallel national leaderships. Mere factional disputes at the state level are insufficient. Therefore, for Egbetamah's defection to the NDC to be constitutionally protected, he would need to demonstrate that his former party, the APC, experienced a division at the national level that made it impossible or impracticable for the party to function.

Furthermore, while Section 109(2) empowers the Speaker to give effect to the vacation of a seat, this power is not absolute or arbitrary. It requires "evidence satisfactory to the House" that a ground for vacation has occurred. This implies a process of due deliberation, and in contentious cases, the matter often requires judicial intervention to determine the legality of the defection. The Supreme Court has emphasized the necessity of due process, underscoring that the Speaker's role is declaratory rather than constitutive, meaning they declare a vacancy that has already occurred by operation of law, rather than creating the vacancy themselves. Attempts by legislative houses to declare seats vacant without proper adherence to constitutional provisions and due process have often been challenged successfully in court.

The role of INEC in this scenario is also crucial. The NDC's call for INEC to reject the Assembly's action aligns with established legal principles. INEC's primary responsibility is to conduct elections and manage electoral processes. It does not possess the constitutional power to unilaterally declare a legislative seat vacant due to defection. Its mandate to conduct a bye-election only arises after a seat has been lawfully and constitutionally declared vacant by the appropriate authority, which, in cases of dispute, often requires a judicial pronouncement. Therefore, INEC is not bound by a declaration from a State House of Assembly if that declaration is perceived to be unconstitutional or procedurally flawed, and it would likely await a definitive judicial resolution before proceeding with any bye-election.

The declaration of Hon. Collins Egbetamah's seat vacant by the Delta State House of Assembly, and the subsequent condemnation by the NDC, highlights the persistent tension between political expediency and constitutional due process in Nigeria's democratic governance. While Section 109(1)(g) of the 1999 Constitution (as amended) provides a clear ground for the vacation of a legislator's seat upon defection, the application of its proviso, particularly concerning a 'division' within a political party, is a complex legal issue that has been extensively interpreted by the Supreme Court. The *Abegunde* principle, requiring a national-level party division, sets a high bar for justifying defection without losing one's seat.

For legal practitioners, this scenario underscores the critical importance of advising clients on the strictures of constitutional provisions regarding party defection. Any legislative declaration of a seat vacant, especially one contested by the affected member or their new party, is highly susceptible to judicial review. Practitioners should be prepared to challenge such declarations in court, emphasizing the need for strict adherence to due process and the constitutional interpretation of 'division' as established by the Supreme Court. Furthermore, INEC's role is not to act as an arbiter of defection disputes but rather to conduct elections once a vacancy has been lawfully and unequivocally established, often through judicial confirmation. The likely next step in this matter will be a legal challenge by Hon. Egbetamah or the NDC, seeking to nullify the Assembly's declaration and affirm his continued tenure, thereby placing the ultimate decision in the hands of the judiciary.