Review of David Umahi’s Case
The mass media was awash with the judgement of the Federal High Court Abuja delivered by Justice Inyang Ekwo which sacked the Governor of Ebonyi State and his Deputy for defecting from PDP to APC. The judgment is said to have sacked Governor David Umahi and his Deputy, Eric Kelechi Igwe from their offices.
He cited section 221 of the Constitution, which merely prohibits political activities by certain associations which are not political parties from canvassing for votes or contributing to elections expenses of any candidate at any election.
The Judge ordered the PDP to immediately send names of replacements to INEC so that fresh elections can be conducted. He also ordered INEC to cease recognising Umahi and Igwe as Governor and Deputy Governor, respectively, of Ebonyi State.
The learned trial Judge further held that the 393, 042 votes polled by Umahi in the March 9, 2019 governorship election belonged to the PDP and cannot be legally transferred to the APC upon defection and that there is no constitutional provision that made the ballot transferable from one party to another. He, therefore, orders INEC to conduct a fresh election in accordance with section 177(c) of the Constitution.
The Judgement of the court has raised certain constitutional issues which could lead to the jurisprudential development of our constitutional laws if upheld by the appellate court or a stroke on the judge and the judiciary. These are some of the constitutional issues the judgement has raised:
- Whether a sitting Governor and Deputy Governor can be sued in their personal capacity
The President, Vice President Governor, and Deputy Governor have absolute immunity from civil and criminal proceedings under Section 308 of the Constitution. Only section 308(2) allows proceedings against this group of people when they are sued only in their official capacity or as a nominal party.
The case against Umahi and his deputy was brought in their individual capacity as people who had defected from the PDP to the APC. See Tinubu v IMB Securities Plc (2001) LPELR -3248(SC),
The Supreme Court lamented in Global Excellence Communications Ltd & Ors v. Donald Duke (2007) LPELR – 1323 (SC) that “section 308 of the Constitution confers absolute immunity on those therein mentioned, without a corresponding disability on them to institute actions in their personal capacities in any relevant court of law for redress during their tenure of office.”
As a result, no civil or criminal charges could be made against this group of people while they were still in office. Section 308 (1) states, “No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his tenure in office.
Furthermore, “no court procedure requiring or compelling the appearance of a person to whom this section relates shall be applied for or issued.”
In EJURA V. IDRIS & ORS (2006) LPELR -5827 (CA), the court Per RHODES-VIVOUR, J.C.A (Pp. 15-19 paras. F) stated unequivocally:
The 1st Respondent, the Governor of Kogi State can only be removed by a successful petition heard by an Election Petition Tribunal. Where, as in the instant case the Appellant sought to remove the Governor, by an Originating Summons filed before the Federal High Court, the provisions of section 308 of the Constitution protects the Governor from such a civil proceeding notwithstanding the provisions of section 21(5) of the Electoral Act. The trial Judge was right to decline jurisdiction in the light of the clear provisions of section 308 of the Constitution.
Hence, Dave Umahi’s case not being a pre-election or post-election matter protected by the Fourth Amendment to the Constitution, which has elapsed, the Governor and his Deputy could not have been sued and removed from office for defecting.
- What is the procedure of removing a Governor and Deputy Governor?
The Governor or Deputy Governor can only be removed from office if he dies, resigns or if he is permanently incapable, or if he is impeached under Section 188 of the 1999 Constitution. The 1999 Constitution does not provide for the removal or removal from office of the Governor or Deputy-Governor of a state if he defected from the political party on whose platform he was elected to that office and joined another political party.
This above position has received the judicial blessing in the case of AG, Federation v. Atiku Abubakar (2007) 10 NWLR (Pt.1041) 1, 29, where the Supreme Court held as follows:
The 1999 Constitution does not provide that the President or Vice-President of the Federal Republic of Nigeria shall be removed or is removable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party…..
Going further, it is clear from the provisions of sections 68(1)(g) and 109(1)(g) of the 1999 Constitution that the framers intended to; and indeed made punishable the defection of a member of the Senate, House of Representatives, or House of Assembly from the political party that sponsored him into another party before the end of the period for which the legislative house was elected by declaring the member’s seat vacant.
The Governor/Deputy Governor, on the other hand, is not covered in the same way. To put it another way, if the framers of the Constitution had intended for the Governor or Deputy Governor to face the same fate as a member of the Senate or House of Assembly, they would have made it obvious in the Constitution.
It is settled law that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication with regard to the same issue. Courts do not have the jurisdiction to read into a Statute what the legislators did not provide for.
Thus, if the legislators had intended that the punishment or consequence of political cross-carpeting should be applied to the Governor or Deputy Governor, as they have in the case of a member of the Senate or the House of Representatives, or even a member of the House of Representatives or even a member of the House of Assembly in the aforementioned provisions of sections 68(1)(g) and 109(1)(g), they would have stated it in clear terms in section 146 of the 1999 Constitution. See Ehuwa V. Ondo State Independent Electoral Commission & Ors (2006) LPELR-1056 (SC); Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646; Amaka v. A-G Ondo State & Ors (2012) LPELR-8478 (CA).
- Who owns the votes that are voted in an election?
The Decision of the Federal High Court has raised the question as to who owns the votes that are voted in an election. There are a plethora of authorities as to who owns the votes cast in an election. The recent Court of Appeal and the Supreme Court cases and the 2010 Electoral act Amendment seems to have departed from the previous position to wit: that votes belong to political parties and not candidates.
Votes cast in an election belong to a live candidate, not a political party that only serves as a vehicle to enthrone candidates, as the appellate courts have often recognized. However, the Judge concurred with the PDP, which relied on sections 221, 177(c), 106(d), and 65(2)(b) of the Constitution to support its claim that votes belong to political parties and that candidates cannot exist without the support of a political party.
In Haruna v. APC & Ors (2019) LPELR-47777(CA), the Court of Appeal held thus amongst several others:
In other words, parties do not contest, win, or lose election directly; they do so through the candidates they sponsor, and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all stages of the election, beginning with nomination and ending with actual voting….While a political party must sponsor a candidate in an election, the candidate, not the political party that sponsored him, is the one who stands to win or lose the election.
In the case of Nwankwo & Anor v. INEC & Ors (2019) LPELR-48862(CA), the Court of Appeal held: “… It is trite that only a natural person may be properly declared and returned as a winner of an election.” The Electoral Act of 2010 (as amended) only allows for the declaration and return of a candidate in an election, not of a political party.”
The authorities stated above have effectively settled the question of whether the votes belong to the candidate or the party. The party is merely a means of transportation. As a result, the Amaechi case has been overtaken by the 2010 Electoral Act amendment and recent Court of Appeal and Supreme Court decisions, which have now vested the votes in the candidate rather than the political party.
As previously stated, if the judgement of the Federal High Court is upheld, it will spark more public discussion on how the law of defection should work in an ideal constitutional democracy, leading to constitutional advocacy and amendments. However, it is my submission that the judgment of the Federal High Court is fraught with constitutional challenges and the appellate court should set it aside.
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