Omo-Agege speaks on removal of lawmaker who defected from APC to NDC

The recent declaration of a lawmaker's seat vacant by the Delta State House of Assembly following his defection from the All Progressives Congress (APC) to the Nigeria Democratic Congress (NDC) has reignited discussions on political party defection in Nigeria. This article examines the constitutional provisions governing such defections, specifically Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution (as amended), which mandate the vacation of a legislative seat upon defection, save for specific exceptions. Drawing on landmark judicial interpretations, particularly the Supreme Court's decision in *Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors*, the article clarifies the stringent conditions under which a legislator may defect without losing their seat, emphasizing the requirement for a national-level division or merger within the sponsoring party. It also addresses the procedural aspects of seat vacation and the implications for democratic accountability.

The political landscape in Nigeria is frequently marked by the phenomenon of cross-carpeting, where elected officials switch allegiance from one political party to another. This practice often sparks intense debate regarding its legality and ethical implications, particularly concerning the mandate given by the electorate. A recent incident in the Delta State House of Assembly has brought this issue back to the forefront, with the Speaker declaring the seat of Hon. Collins Egbetamah, representing Udu State Constituency, vacant following his defection from the All Progressives Congress (APC) to the Nigeria Democratic Congress (NDC).

This declaration, made in reliance on constitutional provisions, has drawn comments from political figures like former Senator Ovie Omo-Agege, who reportedly expressed concern over the process, stating that "A mandate freely given by the people of Udu cannot be extinguished in a single sitting by voice vote." The controversy highlights the critical legal questions surrounding political defection: under what circumstances can a legislator legally switch parties without forfeiting their seat, what constitutes a valid "division" in a political party, and what is the proper procedure for declaring a legislative seat vacant? This article delves into the constitutional framework and judicial precedents that govern political defection by legislators in Nigeria, providing clarity for legal practitioners on this often contentious area of law.

Our analysis will demonstrate that while the Constitution provides a clear mechanism for the vacation of a legislative seat upon defection, the exceptions to this rule have been narrowly interpreted by the Supreme Court, emphasizing the sanctity of the electoral mandate tied to the sponsoring political party. The article will also explore the procedural requirements for such declarations, addressing the concerns raised regarding the manner in which seats are declared vacant.

The legal framework governing political party defection by elected legislators in Nigeria is primarily enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended). Specifically, Section 68(1)(g) addresses members of the National Assembly (Senate and House of Representatives), while Section 109(1)(g) applies to members of State Houses of Assembly. These provisions are identical in their wording and intent.

Section 68(1)(g) states that a member of the Senate or of the House of Representatives shall vacate their seat if, being a person whose election to the House was sponsored by a political party, they become a member of another political party before the expiration of the period for which that House was elected. A crucial proviso, however, stipulates that this rule does not apply if the member's defection to the latter political party is a result of a division in the political party of which they were previously a member, or of a merger of two or more political parties or factions by one of which they were previously sponsored.

The rationale behind these constitutional provisions is to promote political stability, maintain party discipline, and uphold the integrity of the electoral mandate. The Nigerian legal system generally holds that votes cast in an election belong to the political party, not solely to the individual candidate. Therefore, a legislator who abandons the party that sponsored their election is seen as betraying the mandate given by the electorate, which voted for the party's ideology and manifesto. The constitutional exceptions for division or merger are intended to provide a safety valve for genuine political realignments that occur due to significant structural changes within parties, rather than mere personal ambition or factional disputes.

The interpretation of the "division" proviso in Sections 68(1)(g) and 109(1)(g) has been a subject of extensive judicial scrutiny, with the Supreme Court providing definitive guidance. The locus classicus on this matter is the case of *Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors* (2015) LPELR-24588(SC). In this landmark decision, the Supreme Court held that for a legislator to defect without losing their seat, the division in the sponsoring political party must be such that it makes it "impossible or impracticable" for the party to function. Crucially, the division must be at the national level of the party, not merely a factional dispute within a state chapter or local government.

The Supreme Court in *Abegunde* rejected the argument that a division at the state level could justify defection, emphasizing that the Labour Party, in that instance, continued to function as a political party nationally. This strict interpretation underscores the judiciary's commitment to curbing opportunistic defections and reinforcing the principle that the electoral mandate is primarily tied to the political party. The court's position is that only a fundamental, paralyzing division at the national level, leading to parallel national leaderships, would satisfy the constitutional proviso.

Regarding the procedure for declaring a seat vacant, Section 109(2) of the Constitution (which mirrors Section 68(2) for federal legislators) empowers the Speaker of the House of Assembly to give effect to subsection (1), provided that the Speaker or a member first presents "evidence satisfactory to the House" that any of the provisions of that subsection has become applicable in respect of the member. In the case of Hon. Collins Egbetamah, the Delta State House of Assembly's decision was based on a motion moved by the House Leader, Hon. Emeka Nwaobi, who cited documentary evidence confirming Egbetamah's defection. The Speaker, Hon. Dennis Guwor, then declared the seat vacant after the motion received unanimous support. This process aligns with the constitutional requirement for the House to be satisfied with the evidence before the Speaker makes the declaration. The concern raised by Omo-Agege about a "voice vote" extinguishing a mandate should be viewed in light of this procedural requirement for satisfactory evidence presented to the House.

While the *Abegunde* case sets a high bar for justifying defection, recent developments, such as the Rivers State House of Assembly crisis, highlight the complexities that can arise. In that instance, the Supreme Court reportedly found no evidence that 27 members of the Rivers State House of Assembly had defected, as the Governor who made the allegation had withdrawn his supporting documents. This underscores that while the constitutional provisions are clear, their application is heavily dependent on the facts presented and proven before the courts or the legislative house. The onus is on those asserting defection to provide concrete and satisfactory evidence.

The legal position on political party defection by legislators in Nigeria remains stringent, as firmly established by the Supreme Court in *Abegunde v. Ondo State House of Assembly*. A legislator who defects from the political party that sponsored their election automatically vacates their seat, unless the defection is demonstrably caused by a profound, national-level division within the original party or a merger of parties. Mere factionalism or state-level disputes are insufficient to justify such a move without incurring the loss of the legislative mandate. This judicial stance reinforces the principle that the electoral mandate is primarily vested in the political party, not solely the individual candidate, thereby promoting party discipline and stability within the democratic system.

For legal practitioners, it is crucial to advise clients, whether legislators or political parties, on the strict interpretation of Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution. Any attempt to defect must be carefully weighed against the high evidentiary bar set by the Supreme Court for the "division" proviso. Furthermore, the process of declaring a seat vacant, as demonstrated by the Delta State House of Assembly, must adhere to constitutional requirements, including the presentation of satisfactory evidence to the House before the Speaker's declaration. The recent pronouncements by the Delta State House of Assembly and the comments from political stakeholders serve as a timely reminder of the enduring legal complexities and political sensitivities surrounding legislative defections in Nigeria, necessitating meticulous adherence to constitutional provisions and judicial precedents.