Defection: Umahi  Battles For Survival, As Matawalle, Ayade’s Fate Hang In The Balance

In Breaking News, National News, Politics

By Ikechukwu Nnochiri, Vanguard News Nigeria

This is certainly not the best of times for Governor, Engr. David Umahi of Ebonyi State and his Deputy, Dr. Eric Igwe.

The duo was last Tuesday, sacked from their respective offices by a Federal High Court in Abuja, following their defection from the Peoples Democratic Party, PDP, to the ruling All Progressive Congress, APC.

Their sack came about a year to the expiration of their second tenure in office.

Justice Inyang Ekwo, who delivered the judgment, maintained that Umahi and Igwe, having defected to the APC, they not only jettisoned the PDP, but also the votes that guaranteed their re-election.

He held that the total number of 393, 343 votes the defendants (Umahi and Igwe) secured during the March 9, 2019 governorship election in Ebonyi State, belonged to the PDP and the same could not be legally transferred to the APC.

“There is no constitutional provision that made the ballot transferable from one party to the other,” Justice Ekwo held, adding that PDP was bound to retain the votes and mandate that was given to it by electorates in Ebonyi State.

“In conclusion, let me put it this way, the 3rd and 4th defendants did not on their own win the election of 9th March 2019 to become Governor and Deputy Governor of Ebonyi State respectively.

“They were sponsored by the plaintiff (PDP) in compliance with the provision of section 221 of the 1999 constitution, as amended. Therefore, it was the plaintiff that the electors voted for.

“They cannot remain in the office of Governor and Deputy Governor respectively of Ebonyi State after their defection, without the plaintiff that the electors voted for.

“On the other hand, the 2nd Defendant (APC) was not the party elected by the electorates in the election of 9th March 2019 to govern Ebonyi State. Therefore, the 2nd defendant (APC) cannot govern Ebonyi State through the 3rd and 4th defendants when it did not win the election that produced the Governor and Deputy Governor.

“The constitution is put in jeopardy where the will of electorates when they voted for a political party can be brazenly mechanized by candidates without consequence.

“The act of the 2nd, 3rd, and 4th defendants and the position of their respective counsel, in this case, is directed at the political dismantling of the 1999 constitution, as amended. It must be stopped forthwith”, the Judge held.

Consequently, the court restrained both Umahi and Igwe from further parading themselves as the Governor and Deputy Governor of Ebonyi State, even as it directed the PDP to submit to the Independent National Electoral Commission, INEC, names of those that will replace them.

Alternatively, the court ordered INEC to conduct a fresh governorship election in the State, in accordance with section 177(c) of the 1999 Constitution, as amended.

Justice Ekwo noted that though section 68(1)(g) and section 109(g) of the Constitution, expressly made provision for sanction for lawmakers that abandon political parties that sponsored their election for another one, he said it did not mean that others that occupy elected positions, should jump political ships at will.

The court equally ordered 16 members of the Ebonyi State House of Assembly that joined the Governor and his Deputy to move over to the APC on November 17, 2020, to vacate their seats.

The judgments followed two suits marked FHC/ABJ/CS/920/21 and FHC/ABJ/CS/ 104/21, which the PDP lodged before the court.

Meanwhile, Umahi, Igwe, and the affected lawmakers, among whom included the Speaker and Deputy Speaker of the Ebonyi State House of Assembly, have all gone before the Court of Appeal in Abuja to set aside the judgment which they said occasioned a grave miscarriage of justice against them.

Umahi had, in a fit of rage after he was notified about his sack, accused Justice Ekwo of doing a hatchet job.

While addressing a press conference, Umahi said: “I am still the Governor of Ebonyi State and there is no tension at all. In the first place, there is no constitutional provision for any hatchet man to remove a Governor.

“There are three ways whereby a Governor can vacate his office: it is either by death, resignation, and impeachment. There is no other constitutional provision that empowers a hatchet man to turn the Constitution upside down.

“I have listened to the judgment of Inyang Ekwo and it’s very obvious that he was on a mission. He was making all effort to upturn the rulings of the Appeal and Supreme Courts, on issues like this.

“We have heard the rumors before now that he was determined to give judgment against all known laws and the Constitution, first to embarrass the APC, and to equally embarrass the Federal Government.

“For me, I do not feel worried; but, I feel so bad for the judiciary in Nigeria. The executives may have problems; the legislature may have problems, but the moment justice could be purchased, then we are in trouble in Nigeria.

“It’s obvious that the ruling this afternoon is clear evidence that this country is in trouble. And let me tell you, this same judge has over ten cases against the Ebonyi State Government with him. And you can imagine what he is going to rule.

“We have petitioned him to NJC and we will follow it up to the end to ensure that this man (Ekwo) is brought to justice. I want you to disregard the judgment because it’s null and void.”

The Nigerian Bar Association, NBA, quickly rose up in defense of the judge and demanded an apology from the embattled Ebonyi Governor, a request he promptly complied with.

Meanwhile, though Umahi and his deputy have applied for the stay of execution of the judgment that removed them from office, another court in Ebonyi State, last Thursday, issued an interim order that mandated them to continue to remain in office.

Justice Henry Njoku, who issued the other that has a renewable lifespan of seven days, based his decision on the fact that he had earlier in a judgment he delivered on February 28, dismissed a suit marked HAB/13/2022, which sought Umahi’s removal over his defection to the APC.

Meantime, Umahi and his deputy are not the only ones attempting to navigate through the troubled waters of defection, as the judicial axe is equally precariously dangling on heads of governor Bello Matawalle of Zamfara State and his counterpart in Cross River State, Ben Ayade.

Both Matawalle and Ayade had decamped from the PDP to the APC. Like in Umahi’s case, the PDP is currently in court, demanding their sack. While PDP wanted Ayade and his deputy, Ivara Esu to vacate their respective offices, it dragged only Matawalle before the high court.

It will be recalled that though Governor Matawalle decamped to the APC, his erstwhile deputy, Mahdi Aliyu-Gusau, refused to leave the PDP.

Aliyu-Gusau was subsequently impeached by the Zamfara State House of Assembly on February 24, after which Senator Hassan Nasih was sworn in as his replacement.

In the suit marked FHC/ABJ/CS/489/2021, PDP, maintained that in view of an earlier judgment of the Supreme Court, to the effect that the APC had no candidate in the 2019 governorship election in Zamfara State, has not conducted valid primaries, it would be unlawful for Matawalle to retain his office since he has joined the APC.

It wants the court to, among other things, declare that Matawalle must resign to allow INEC to conduct a fresh governorship election within 90 days, to enable the PDP to replace him.

The plaintiff equally prayed the court to sack all the federal lawmakers and members of the Zamfara State House of Assembly that defected to the APC with the Governor.

Justice Ekwo had fixed April 8 for parties in the suit to adopt their final briefs of argument, to enable the court to deliver judgment in the matter.

Senior Advocates of Nigeria, SANs, have continued to express divergent views on Justice Ekwo’s landmark judgment that sacked Umahi and his deputy from office over their defection to the APC.

While some applauded the judgment, others maintained that the high court lacked the powers to order the governor and his deputy to vacate their respective offices.

In an exclusive chat with Vanguard News Nigeria, a former President of the NBA, Chief Olisa Agbakoba, SAN, said: “Based on the Supreme Court decision in Amaechi vs Celestine Omehia, and PDP, the candidate who wins political office holds the office in trust for the party.

“The party is the only legally permissible entity under the Constitution and the Electoral Act, who canvasses for votes.

“As a result, the political office to which a candidate runs, say for president or senate etc, is to the benefit of the party exclusively. This view is the decision of the Supreme Court in the Amaechi case referred to”.

According to Prof. Epiphany Azinge, SAN, “There are many dimensions to the issue. First, can an action be brought against a sitting Governor regardless of the provision of Section 308 of the Constitution on immunity?

“The court answered in the affirmative and I respectfully agreed.

“Second is, whether earlier decisions of the Supreme Court on the subject of defections as it affected the legislature can by parity of reasoning be stretched to the Executive?

“Again, the court answered in the affirmative. I am not sufficiently persuaded.

“First is that the constitution is silent in that regard. But can the Judiciary not engage in Judicial Lawmaking to fill the gap when there are obvious lacunae?

“Yes it can, and that, the judge did in the circumstances. It could be argued that perhaps the framers of our constitution never contemplated that elected Governors could ever defect to another party after elections.

“It was never a part of our ugly Constitutional history. So the court in the exercise of its discretion chose to fill the gap.

“I endorse the policy thrust of filling the gap. There are divergent and discordant views on the matter. What is paramount is the decision of the court.

“It is the Law until set aside. In other words, the Governor and Deputy Governor should vacate their seats in the absence of a stay of proceedings or an upturn of the court order by a court of superior hierarchy”.

Adding his voice to the debate, Dayo Akinlaja, SAN, said: “The reality on the ground is that the court that gave this judgment is a court of the first instance.

“There is as such a window of opportunity for an aggrieved party to appeal against the judgment. Having regards to the all-important nature of the matter, it is certain that there will be an appeal.

“My own attitude is that the Court of Appeal should be allowed to decide the matter in the way and manner considered proper by that appellate court.

“Almost invariably, whoever loses on appeal will eventually take the matter to the apex court of the land for final determination. Until then, whatever anyone says would be of no moment in practical terms.

“In sum, I encourage that the matter is allowed to be effectively settled in the judicial forum as instituted in the Constitution of the country”.

While disagreeing with the judgment, Jubrin Okutepa, SAN, said: “This judgment, on the superficial level, seems very attractive and well-intentioned to instill political sanity in our otherwise reckless political terrains.

“But beyond this and also scoring political debates, is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of Nigerian Constitution 1999 as amended. I do not think so.

“There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other than the party upon which the Governor and the Deputy Governor were elected their seats had become vacant and to order the conduct of election to their offices.

“Jurisdiction to make post-election declarations and orders as made by the Federal High Court is not in our constitution.

“Section 251 of the 1999 constitution as amended in subsection 4, limited the jurisdiction of the Federal High Court to determine whether the seat of a member of House of Representatives has become vacant or that of members of the senate.

“It appears that the draftsman of our constitution did not contemplate that when a governor defects or his deputy then he or she must vacate the office. If that were to be the case, the constitution would have said so.

“But let us wait and see what the other higher courts in the land will say, but until then it does not lie in the mouth of the Governor or his Deputy to say they will not obey the orders.

“Their remedies are not in acting contemptuously but in ventilating their dissatisfactions by due process”.

Similarly, Chief Mike Ozekhome, SAN, said: “I am of the firm belief that the judgment, shredded of all legal and factual details, cannot stand the acid test of constitutionalism, nor pass the furnace of appellate courts scrutiny. This is because the tenure of office of a Governor and his Deputy are constitutional matters.

“Perhaps, the Jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously.

“He may also not have availed of the clear provisions of sections 180 and 188 of the 1999 Constitution.

“I most respectfully submit (as held by appellate courts) that a political party is merely a vehicle in which a candidate can ride to contest an election and nothing more.

“The votes belong to the candidate and not the political party. The political party ceases to have any considerable relevance or insolence over a person that has won an election and has been sworn in as a legislator, Governor, or President of the entire people, who are far larger than a mere political party.

“I humbly submit that a Governor already sworn in can not be removed by the Federal High Court through an Originating Summons. It will surely be set aside on appeal. Mark my words”, Ozekhome added.

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