Dr. Bukola Saraki made history by becoming the first sitting President of the Senate to decamp from the political party by which he won the elections to another political party. Though this move has been predicted by many and was quite unsurprising, it raises certain constitutional and legal questions regarding his position as leader of the 8th Senate. Newspaper reports indicate that he does not intend to vacate his seat or his position as President of the Senate. What are the legal implications of this defection? Let us begin with the relevant constitutional provisions.
Section 50 (1)(a) – There shall be a President and a Deputy President of the Senate, who shall be elected by the members of that House from among themselves
Section 50 (2) – The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office –
(a) if he ceases to be a member of the Senate or of the House of Representatives, as the case may be, otherwise than by reason of a dissolution of the Senate or the House of Representatives; or
(b) when the House of which he was a member first sits after any dissolution of that House; or
(c) if he is removed from office by a resolution of the Senate or of the House of Representatives, as the case may be, by the votes of not less than two-thirds majority of the members of that House.
Section 68(1)(g) – A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if – being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected:
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.
Section 68(2) – The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.
Section 68(1) of the Constitution clearly and unambiguously bars cross-carpeting and prescribes a punitive measure to curb the menace – immediate vacation of the seat of the legislator. There is however an exception contained in the proviso. There is a valid ground upon which a legislator can cross-carpet during his or her tenure and still retain his or her seat – where the cross-carpeting is as a result of a division in his former political party or a merger of political parties or factions by his former political party. Most erring legislators have relied on ‘division’ within their former political party to justify their defection. The Constitution does not define ‘division’ or prescribe what form of division would justify defection. Let us however take a look at judicial authorities.
In the case of HON. IFEDAYO SUNDAY ABEGUNDE V. THE ONDO STATE HOUSE OF ASSEMBLY & 11 ORS, a member of the House of Representatives representing the Akure North/South Federal Constituency had defected from the Labour Party on whose platform he had won the election to the Action Congress of Nigeria (ACN). His position was that the factionalization or division in the Ondo State Chapter of the Labour Party accounted for his defection to the ACN. The position of the trial court and Court of Appeal which was affirmed by the Supreme Court was basically that a division that will justify a defection must be one that affects the national structure of the party and not division in the ward, local government or state levels. J.A. Fabiyi J.S.C. summed it up thus: “In the case of FEDECO v. Goni (supra) at page 485, this court had the chance to pronounce on Section 64(1) (g) of the 1979 Constitution which is in pari materia with Section 68(1) (g) 1999 CFRN. The decision therein is to the effect that a division that will justify defection by a person must be one that affects the national structure of the party. A minor division in a Ward or Local Government of a State or a State is not the sort envisaged by the makers of the Constitution. To interpret the law otherwise will lead to confusion in the party and the polity as well. The aim of the law makers would certainly be defeated.”
The Supreme Court however in that case extensively defined the sort of division that would enable a defecting legislator benefit from the proviso in Section 68(1)(g) of the Constitution. The Apex Court relied heavily upon its earlier decisions in FEDECO V. GONI decided in 1983 and ATTORNEY GENERAL OF THE FEDERATION V ALHAJI ATIKU ABUBAKAR decided in 2007.
Delivering the lead judgment, M.D. Muhammad J.S.C. held as follows: “In Fedeco V. Goni (supra) this Court, while interpreting Section 64(1) (g) of the 1979 Constitution which is pari materia, that is on all fours, with Section 68(1) (g) of the 1999 Constitution as amended, held at pages 21-22 of the report thus: –
“Under Section 64(1) (g) of the Constitution where a person whose election to the legislative house was sponsored by a political party, becomes a member of another political party before the expiration of the period for which that house was elected, he would have to lose his seat in that house. But under the proviso to the said Section 64(1)(g), if his membership of the new political party occurred because –
(1) THERE WAS A DIVISION in the political party which sponsored him and as a result he joined the new political party…. he does not lose his seat.” (Underlining mine for emphasis).
The court at pages 22-23 of the report further held:
“split or division could arise without any fault of the members of a political party resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent practice of cross-carpeting politicians of yester years who, for financial consideration or otherwise, crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.” (Underlining mine for emphasis).
In AG Federation V. Abubakar (supra) which the Lower Court further imbibed, this Court per Aderemi JSC at page 178 of the report held thus: –
“It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant. No similar provision was made for the Vice-President or even for the President.”
The principles enunciated by this Court in the two cases, Fedeco v. Goni supra and Ag Federation V. Abubakar supra, is to the effect that only such factionalisation, fragmentation, splintering or “division” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1) (g), justify a person’s defection to another party and the retention of his seat for the unexpired term in the house inspite of the defection. Otherwise, as rightly held by the courts below, the defector automatically loses his seat.”
It will thus be left for Dr. Saraki and other legislators who had defected on the 24th of July 2018 just before the Upper Chamber went on recess to prove that there is division within the All Progressives Congress (APC) sufficient enough for them to maintain their seats in the Senate. It is not certain whether Dr. Bukola Saraki thought of this when writing his statement on why he defected, but he stated therein:
“While I take full responsibility for this decision, I will like to emphasise that it is a decision that has been inescapably imposed on me by certain elements and forces within the APC who have ensured that the minimum conditions for peace, cooperation, inclusion and a general sense of belonging did not exist.
They have done everything to ensure that the basic rules of party administration, which should promote harmonious relations among the various elements within the party were blatantly disregarded. All governance principles which were required for a healthy functioning of the party and the government were deliberately violated or undermined. And all entreaties for justice, equity and fairness as basic precondition for peace and unity, not only within the party, but also the country at large, were simply ignored, or employed as additional pretext for further exclusion.
The experience of my people and associates in the past three years is that they have suffered alienation and have been treated as outsiders in their own party. Thus, many have become disaffected and disenchanted. At the same time, opportunities to seek redress and correct these anomalies were deliberately blocked as a government-within-a-government had formed an impregnable wall and left in the cold, everyone else who was not recognized as “one of us”. This is why my people, like all self-respecting people would do, decided to seek accommodation elsewhere.”
The next sitting of the Senate is bound to be very interesting. It is the constitutional duty of the Senate President by the provisions of Section 68 (2) to declare the seat of a defecting senator vacant after he or a member has presented satisfactory evidence. There would not be shortage of members willing to present satisfactory evidence, neither would there be shortage of satisfactory evidence (the defection was made public by the Senate President with an extensive statement to go along with it). Can Dr. Saraki preside over the proceedings where the issue of the possible vacancy of his seat would be treated? Can the Deputy President of the Senate take over the function of enforcing Section 68(1) of the Constitution when Section 68(2) prescribes that role for the Senate President?
These are the interesting burning questions.