Constitutionality of Tambuwal’s defection: Have courts not spoken?

However, in making the above quoted statement Justice Holmes, Jr., the most celebrated advocate of legal realism in American history, was suggesting that the true meaning of any written law as to justify a given action or use of certain force is determined by judges, and until a judge has done that on a legal […]

However, in making the above quoted statement Justice Holmes, Jr., the most celebrated advocate of legal realism in American history, was suggesting that the true meaning of any written law as to justify a given action or use of certain force is determined by judges, and until a judge has done that on a legal issue, any action based only on the letters of a written law is essentially no more than an exercise in trying to guess the way a judge will rule in fact in the matter. In crass Nigerian parlance it means that the operative part of a written law like our Constitution is not what that Constitution says, but what the courts view it as saying. Thus, when public officers assume office, what they do essentially is to swear to uphold the Constitution of the Federal Republic of Nigeria, as interpreted by the courts.
The Supreme Court’s clear pronouncement should have rested this non-controversy on defection but this is the era of pre-2015 and so a few other cases on the same section came up in 2014. Notable among them were the two cases before their Lordships, Justices Ademola and Mohammed of the Federal High Court, Abuja. We may not dwell so much on the two cases as none is conclusive as yet. One is on appeal and final judgment is being awaited on the other. Thus, status quo has to be maintained for now. But the suspense coming from the Abuja courts can be dispensed with by the final judgments of the same Federal High Court sitting in Ilorin and Sokoto. The remarkable thing is that in all the non-Abuja cases of the Court, all the feuding parties were satisfied with the judgments and no appeals are currently pending. That means finality of the law on matters of defection among PDP and APC members.
In his 37-page interpretation of the 82-word section, delivered on Thursday 26 June, 2014 Justice A. O. Faji, one of the prides of the Nigerian judiciary, authoritatively held: “On the whole, I find that the defection of 1st to 20th Defendants on 22/1/2014 from PDP to the APC being as a result of a division within the PDP is constitutional. They cannot therefore be ordered by this Court to vacate their seats…This is because the seats of the 1st to 20th Defendants are not vacant neither have they been vacated.” Emphasis supplied. In that suit, a PDP member of the Kwara State House of Assembly sued 20 new PDP members of the Assembly including their Speaker who had defected to APC, seeking to declare their seats vacant and for INEC to conduct bye elections.
While Justice Faji’s refusal to declare the seats of the defecting members vacant was anchored on division within the PDP, the Sokoto judgment was anchored mainly on the fact that the PDP faction of the defecting Speaker and members of the Sokoto State House Assembly had merged with APC. The PDP and two of its members sued the 27 newly defected members to APC seeking similar reliefs with those of the Ilorin matter. On a sunny Thursday July 3, 2014 Justice R.M. Aikawa ruled that “at the time the 1st – 27th defendants defected to APC, there was not only a division but also a faction in the PDP. I also believe their averments that the said defection was as result of the merger of their faction of the PDP with the 31st defendant.” Emphasis supplied.
Prior to the unnecessary problematisation of defection was the issue of whether there was division in PDP. The PDP and, surprisingly, its lawyers had put words in the mouth of the Honourable Justice E. S. Chukwu that he said there was no faction in PDP. In his 75-page judgment in a case between then Alhaji Bamanga Tukur’s PDP and Alhaji Kawu Baraje’s PDP, the Judge recognized Tukur’s faction and disbanded Baraje’s. In his well-reasoned judgment, Justice Chukwu restrained Alhaji Baraje and all his agents and privies “from presenting, parading and holding out themselves as National Officers of the Peoples Democratic Party and they are accordingly restrained from operating parallel National, State, L.G.A. and Ward Secretariats of the Peoples Democratic Party (PDP).” Every subsequent judge that had opportunity to interpret what Justice Chukwu had said agrees he never said there was no faction in PDP. He only recognized one faction and disbanded the other. And that means in fact there is faction, as stated by his brother judges.
But even if Justice Chukwu ruled there was no division in PDP, his brother judges have now ruled there was division. The issue now is whether Tambuwal can come under any of the two windows: Justice Faji’s window on division in PDP, or Justice Aikawa’s on merger of nPDP in Sokoto with APC.
I have gone to this length just to bring to our attention the materials that are necessary for everyone to shape his own opinion. And I have heard comments to the effect that Tambuwal’s defection to the APC would have been a non-issue if the courts had ruled on it. Now that we know the courts have indeed ruled on the issue of defecting from PDP to APC, the defection is indeed a non-issue but some would want to cry wolf where there is none.
In the brief speech announcing his defection on October 30, the Speaker based his action on political events in Sokoto PDP. Nigerians are all aware that one of many factions of PDP in Sokoto defected to APC and there is still battle raging on among the remaining factions. As late as October, the PDP BOT Chairman, Chief Tony Anenih, was widely reported to be in Sokoto as the head of PDP Integration Committee to reconcile members of various factions. For me the argument PDP should be making is that Tambuwal may not base his defection on division because as at 30th October, 2014 that division has been mended. But that is merely an argument and for you to visit him with coercive power of the state as to withdraw his security, you need a court order.
Now even if, for the purpose of argument, he cannot come under the window of division, what about merger? The merger of Sokoto PDP with APC has not been reversed! If the Speaker’s membership of the House of Representatives cannot be saved by the Ilorin judgment relating to factions in PDP, it is undoubtedly saved by Justice Aikawa’s Sokoto judgment on the fact that his own faction of the PDP has merged with APC. But even if all the above are not convincing to some people, the fundamental issue is that the situation is one of dispute: Speaker has decamped, PDP is justifiably grieving about it and wants to deal with him, who between them is right? Where there is such a dispute, only the courts can resolve it, not an official of government. The mere fact that Nigeria operates a written constitution is an indication that its people are made up of fundamentally differing orientation. And the only referees are the courts.
Although I am only an Assistant Professor of Law, I can in fact prophesy that when the courts, which have jealously protected their turf, have the opportunity, they will descend heavily on such people or institutions that try to usurp their powers. If Nigeria is still a constitutional democracy, I will still bet that the courts will order for the return of Tambuwal’s security details. True, losing the number four man to a rival party is a bitter pill to swallow but it is for PDP to be mindful of due process of the law in its responses. Mr. President swore to uphold the Constitution as interpreted by the courts not by his lordship Suleiman Abba, the Acting Inspector General of Police.
Hon. Ahmad is Chairman Committee on Justice, House of Representatives. He wrote in from Abuja