Defecting Legislators and Their Right to Freely Associate By Emmanuel Majebi The recent decamping of the Speaker of the House of Representatives from the ruling Peoples’ Democratic Party (PDP) to the All Progressives Congress (APC) brings to the fore the provisions of section 50(1) and (2) which relates to the establishment and vacation of office by the Speaker of the House of Representatives. Also brought to the fore is the provisions of section 68(1)(g) of the Constitution, which relates to the effect of a legislator decamping from the party under whose banner he was elected . In an attempt to discuss this matter I intend to raise and address certain issues which arise from the debates for and against the Speaker upon his decampment The first issue I want to address is whether there is any law which restricts the speakership of the house of representatives to the majority party, such that if the speaker changes camp to a party which is in the minority then he has to automatically be held to have forfeited his speakership or be compelled to resign? Section 50 (1) (b) simply states that there shall be a Speaker of the House of Representatives who shall be elected by the members of that House from amongst themselves. This section makes no mention of the Speaker being a member of the Majority party. The silence of this section about the party affiliation of the speaker and the use of the phrase “from amongst themselves” implies that only the members of the house of representatives (not the Police, not the Presidency, not the ruling party) can decide who the speaker should be and if a majority of them decide that their Speaker should be a member of the Minority party then so it is according to this section. Section 50(2) also lists grounds on which a speaker can cease to be in office and nothing therein states that he ceases to be speaker if he decamps to another party. The other section that comes up for consideration here is section 68(1) (g) The section makes a legislator liable to lose his seat in parliament if he decamps to another party other than one under whose platform he was elected, except his old party is factionalised or merges with another party (to form a new party) or a faction of his old party aligns with another party. The provisions of this section are quite clear, however there are many practical issues which arise out of the provisions which I will touch on in the following paragraphs. How does the provision of section 68(1)(g) square up with the provisions of section 40 of the Constitution ; a fundamental human rights provision; which allows a citizen of Nigeria to freely associate with persons of his choice? In my opinion the provision of section 68(1) (g) is in direct contradiction of section 40 of the 1999 constitution and since no one section of the Constitution is superior to another when two important sections of the Constitution so sharply oppose each other, I do believe that the courts have to come in to give an interpretation anytime such a dispute arises in that regard. The fact that despite the existence of these provisions in our constitutions we have since 1999 continued to see massive defections of legislators from party to party is evidence that this section does not really fit the realities of our present state of political development nor the natural tendency of humans to leave environments they find non conducive and gravitate towards conducive atmospheres! In 1993 whilst writing my LLM thesis I under took a comparative study of 5 major Democratic Constitutions, viz - American, British, Indian, Australian and Nigerian and out of all of these constitutions only the Nigerian Constitution has such a restrictive provision on the right of legislators to freely associate. In America for example Senator Joe Lieberman was elected into the American Senate as a Democrat, and even went on to be Presidential Running Mate to a Democratic party Presidential Candidate Al Gore in the 2004 Presidential Race, but thereafter he left the democratic party and became an Independent, and retained his seat in the senate. Recently 2 British MPs Douglas Carswell and Mark Reckless left the Conservative Party to join the United Kingdom Independent Party (UKIP). They remained in parliament as UKIP members. It will seem to me that the provision of section 68(1) (g) is more of a military emotional rebuff of the happenings in the Western Region Parliament when members of Zik’s NCNC cross carpeted to the then opposition party AG. There is no legal or constitutional reason that can support this provision, especially when seen in the light of the constitutionally guaranteed freedom of association and worldwide practices in other democratic nations. The Supreme Court of Nigeria in the case of Atiku Abubakar, decided that the Vice President; the number two citizen of Nigeria; can decamp to a party other than the one under whose platform he was elected without having to resign from his position as Vice President. Indeed every other Nigerian can decamp freely from one party to another, without suffering any sanctions. In my humble opinion it would be tantamount to discrimination; contrary to section 42(1)(a) of the Nigerian Constitution itself ; to subject a group of Nigerians; viz legislators; by reason only that they are legislators, to sanctions(i.e losing their seats in parliament) if they decide to exercise their constitutionally approved right to freedom of association. In my humble opinion the provisions of section 68(1)(g) is tantamount to saying one class of people if they take a person’s life commit no offence, but a select group of people in the same society if they do same thing are liable to be punished. If murder is an offence it should be an offence for all not a few. So also if decamping from a party is a constitutional crime it should be a crime for all elected political office holders and maybe even all Nigerians and not just legislators alone. That sort of discrimination is outlawed by the constitution. The next issue I want discuss is, how do you decide whether an existing party has so factionalised as to justify the defection of a legislator to another party. Who makes this decision? If a decampee says he feels his party is factionalised and decamps for example does it lie in the mouth of his former party (who are aggrieved) to declare that their party is not factionalised? Can the law enforcement agencies; suo moto or under the direction of the ruling party decide that there is no factionalisation of the former party and thus proceed to subject the decamping legislator to a legal disability arising from their interpretation of the constitutional provisions? Or must the position of the decamping legislator be tested in and pronounced upon in court? Before the decamping legislator can be said to have lawfully decamped? I am of the humble opinion that if a legislator decamps from a party, it will be tantamount to being a judge in its own cause if the party from whom the legislator has decamped is the one to make the call and declare the decamping illegal. I would believe that under the situation it would be necessary to call for judicial interpretation of when a decamping legislator can legally be said to have forfeited his seat. Mr. Majebi, a Legal Practitioner writes from Lagos What is happening in Nigeria and the world at large.: Defecting Legislators and Their Right to Freely Associate whathappenedt.blogspot/2014/11/defecting-legislators-and-their-right.html?m=1
Posted on: Mon, 01 Dec 2014 21:58:06 +0000
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