EVEN INTERPRETATION OF THE 1999 CONSTITUTION AND WHY ELECTED EXECUTIVE OFFICE HOLDER CANNOT VACATE OFFICE ON GROUNDS OF LEAVING THE PARTY THAT SPONSORED HIM AT THE ELECTION

Under the Nigerian Constitution, elected executive office holders, particularly the President and the State Governors enjoy a level of security of term(s) in office. This is made possible by the constitutional process which elaborately specified the ambit of their terms, qualifications and disqualification to the respective offices.

Notably, while the tenure of an elected executive office holder is for a 4 year certain, commencing from the date when he took oath of office, in which case an impeached executive officer holder whose impeachment is adjudged unconstitutional could be restored and allowed to complete his tenure as espoused in the case of Peter Obi v. INEC (2007) 7 SC; a legislator, on the other hand, has his term of office tied to the constitutional period of 4 years reckoned from the date of inauguration.

This being the case, the legislator’s term of office elapses upon the efluxion of the constitutional 4 years from the date of inauguration notwithstanding the time spent on re-claiming such mandate from the Court. So tenure elongation does not enures with respect to legislative office, whose term may have been cut-short by any circumstances, including the length of time it took to reclaim the mandate from the Court.

While cross-carpeting or decampment from the party that sponsored an elected executive office holder to another party could be politically condemnable, there is no recognizable constitutional sanction for it. It is accepted that under the Nigerian law, it is the political party that sponsored a candidate that wins an election; as votes cast in an election are ascribed to it.

 However, it is not a reasonable proposition that a person elected into an executive position loses or vacates his seat by decamping or joining another political party, after winning an election or after being returned elected. Such is not within the precincts of the Nigerian Constitution. This is different in the case of the legislature, as by Section 68(1)(g) and 109(1)(g) a member of the National Assembly or State House of Assembly “shall vacate his seat” if he becomes a member of another political party before the expiration of his term unless it certain factors are proven; and now affirmed by the Supreme Court in the case of Abegunde v. Ondo State House of Assembly & 11 Ors (2015) 8 NWLR (Part 1461) 314. There is no similar or corresponding provisions relating to elected executive office holders.

This unassailable fact flows from the constitutional standpoint that the combined effect of Sections 131 and 137 of the 1999 Constitution relating to the qualification and disqualifications for election as President and also similar sections 177 and 182 of the Constitution regarding the qualification and disqualifications for election as Governor, are all specifically applicable to pre-election purposes only.

Simply put, the foregoing sections clearly relate to pre-election factors and explicitly guide the preparations or participation of any person who wished to be elected as a President or Governor within the Nigerian State in the electoral process.

By the clear words of Sections 131, 137, 177 and 182, they are drafted to guide pre-election qualifications or eligibility requirements for election into executive positions, and do not guide the eligibility to remain in the said offices after the election.

Some of the cardinal rules of interpretation of constitutional provisions are as espoused by the apex Court in Elelu-Habeeb & Anor v. The Honourable Attorney-General of Federation & 2 Ors (2012) 13 NWLR (Part 1318) 423, 489-491E-B, by a full panel of 7 Justice of the Supreme Court per M. Mohammed, JSC (now CJN), were among other things that while interpreting the Constitution, effect should be given to every word used in the Constitution, where the language of the Constitution are clear and unambiguous, it must be given its plain and evident meaning; and that constitutional provision should not be so construed in such a manner as to defeat its evident purpose.

Under the golden rule of interpretation of Constitutional provisions, it has been settled that words used in the constitutional provisions must prima facie be given their ordinary meaning where such words are not ambiguous, as are the provisions of Sections 131, 137, 177 and 182 of the 1999 Constitution under reference.

Accepted that by the general provision of section 221 of the Constitution, it is only a political party that can canvass for votes for candidates at any election. This general provision, however, cannot be extended to negate the specific provisions of Sections 131, 137, 177 and 182 of the 1999 Constitution which deal with specific issues and cannot be validly called in aid in the interpretation of the Constitution, as they are mutually independent and relate to different issues.

While interpreting Section 221 of the 1999 Constitution relating to prohibition of political activities by certain associations, the apex Court rightly held in Amaechi v. INEC (2008) 5 NWLR (Part 1080) 227, 317-318that:

“The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between the parties. If, as provided in section 221 above, it is only a party that canvasses for votes. A good or bad candidate may enhance or diminish the prospect of his party in winning, but at the end of the day, it is the party that wins or loses an election. I think that the failure of the respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate has made them lose sight of the fact that whereas candidates may change in an election but the party do not. In mundane or colloquial terms, we may say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the Constitution it is his party that has won the election.”

This judicial standpoint of the Supreme Court was followed in the later decision of Faleke v. INEC (2016) 18 NWLR (Part 1543) 61, thereby re-affirming that without a political party, a candidate cannot contest in an election; and where a candidate has won an election in a particular constituency, in consonance with Section 221 of the Constitution, it is his party that won the election.

However, a calm perusal of the foregoing decisions pointedly shows that the apex Court were not interpreting any of the provisions of Sections 131, 137, 177 and 182 of the 1999 Constitution or considering the issues of disqualification of an elected executive office holder for the purposes of his removal from office or whether an elected executive office holder can lose or vacate his office by leaving the party that sponsored him at the election. The inapplicability of judicial authorities to mutually distinct and unrelated instances have been noted by the Court and in Adegoke Motors Limited v. Adesanya & Anor (1989) 5 SC 113 at 166 the Supreme Court per Oputa, JSC held that:

“….It also appeared in rather bold relief that there is now a tendency among our lawyers, to consider pronouncements ….in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issue for decision in that particular case. Pronouncements or our Justices whether they are ratione decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for without known facts, it is impossible to know the law on those facts…”

Similar judicial attitude was expressed in the case of Oyeneyin v. Akinkugbe (2010) 4 NWLR (Part 1177) 265, 286 E-F, where the apex Court per Adekeye, JSC held that:

“Cases are not to be cited at large. The facts of the case must be similar, whereas generally speaking cases are decided on their peculiar circumstances or facts. Citing cases that are inapplicable to the peculiar findings in a particular matter lead to grave misconception and ultimately miscarriage of justice. Embarking upon the exercise of comparing and distinguishing an irrelevant case amounts to an unproductive academic exercise – which courts must shun in the furtherance of development of law.”

In any event, in the above mentioned cases of Amaechi and Faleke, the apex Court were not invited to determine the issue of whether an elected executive office holder, who leaves the political party that sponsored him at the election under which he assumed the executive office, will vacate his executive office upon leaving the said party or decampment. On account of this, the cases of Amaechi and Faleke are therefore not good authorities for such supposition.

Considered in a different prism, Sections 131, 137, 177 and 182 of the 1999 Constitution clearly set out the pre-election factors pursuant to which a person seeking to be elected into an executive position can be qualified or disqualified from contesting. In effect, Sections 131, 137, 177 and 182 of the 1999 Constitution are utterly inapplicable after the conduct of the election as they do not have or envisage post-election application.

The opening line of section 131 of the Constitution says that “A person shall be qualified for election to the office of the President if …” and section 177 of the Constitution also says in the same vain that “A person shall be qualified for election to the office of Governor of a State if…”.

Evidently, these provisions are only intended by the draftsmen to set the guide for pre-election participation and do not cover post-election issues or in any way regulate continuation in office by such an executive office holder after his election.

Therefore, where a person meets all the pre-election constitutional requirements as stipulated in Sections 131 and 177 of the Constitution, by being a member of a political party and sponsored by that party, he is not under any further constitutional obligation to remain so after the election and therefore cannot vacate his elected executive position or deemed to have ceased to be hold the said office if he leaves the party that sponsored him in the election thereafter.

So, Sections 131, 137, 177 and 182 of the 1999 Constitution cannot be misconstrued as contemplating that once an elected executive office holder joins another political party, after being sponsored and winning the election, he cannot retain the votes of the cast for party that initially sponsored him and therefore his seat deemed vacant by reason of his decampment. Such constricted interpretation is not explicit from the clear words and intendment of the provisions and will only lead to ‘stultifying narrowness’ and undoubtedly defeat the evident purposes of the constitutional provisions.

The Constitution is elaborately clear on the post-election grounds or processes under which an elected executive office holder, such as the President and the Governors, can cease to hold or be removed from office. These are well set out under Sections 143, 144, 188 and 189 of the Constitution.

Accordingly, no elected executive office holder can constitutionally loose his position by leaving the political party that sponsored him at the pre-election stage of the preparation and participation in the electoral process.

The fact that Section 177 (similar to 131 of the Constitution) relates to pre-election qualification for an election is well noted by the apex Court in Agi v. PDP (2016) LPELR – 42578 (SC), thereby giving credence to the fact that a Governor cannot be removed from office except on the grounds set out in the Constitution itself, of which leaving a political party that sponsored the candidate is not one of such constitutionally recognized grounds.

Any constricted interpretation of Sections 131, 137, 177 and 182 of the Constitution will lead to unintended absurdity and also creates constitutional quagmire, one of which is – how does a political party re-nominate another candidate for the purposes of filling the resulting vacancy in the event that an elected executive officer holder loses his position on grounds of decampment, particularly in this circumstance when the statutory period for the nomination of candidate for election had elapsed.

In this wise, Governors of various States who left the political parties that sponsored them in the election cannot be deemed to have vacated their positions, whether expressly or by implication, on grounds of leaving the political party that sponsored them in the elections. The act of leaving the political parties is a post-election issue during which time they have already been elected into executive positions and therefore they can only lose their seats or be removed from office through the constitutional means as set out in the Constitution itself. The elected executive offices cannot be lost or vacated by implication, it can only be in the manner envisaged by the Constitution itself, which is as set out 143, 144, 188 and 189 of the Constitution for the removal of the President or the Governor, as the case may be.

Having clearly met all the pre-election qualification requirements prior to their respective elections, they can only vacate their executive positions upon the post-election constitutional framework set out for the removal of an elected executive office holder such as impeachment.

By the above even interpretation of the Constitution, no elected executive office holder can vacate office on grounds of leaving the political party that sponsored him at the election, as no such constitutional basis exists.

EZENWA IBEGBUNAM, a Legal Practitioner writes from Abuja.