Atiku's Declaration And His Seat As Vice-President In The Eyes Of 1999 Constitution

culled from GUARDIAN, November 28, 2006

Some issues are raging in the strategy rooms of the Peoples Democratic Party (PDP), Action Congress (AC), Democratic Peoples' Party (DPP), All Nigerian Peoples Party (ANPP), among others, but the most prominent is the effect of a president, a vice-president, a governor or his deputy abandoning or resigning his membership of the party under which he was voted into office and joining another one.

One school of thought believes that Section 109 of the 1999 Constitution will catch up with him and that he will stand automatically relieved of his post. For the avoidance of doubt, S109 (g) refers to "a person whose election to the House of Assembly was sponsored by a political party will become a member of another political party before the expiration of the period for which that House was elected". He shall vacate his seat.

There is a proviso, which refers to a split in the party among others.

With all due respect, this section has no relationship with Sections 135 (1) and the S180 (vi) which specially stated that the president, vice president, the governor, the deputy should continue to hold office until "he ceases to hold office in accordance with the provision of this constitution".

The president and the vice president shall hold office under S135(1) until (a) his successor takes oath of office, (b) he dies (c) he resigns or as discussed earlier. S135 (1) d continues under Sections 143 and 144. S143 refers to the impeachment where 2/3 of the members of the National Assembly (not the Plateau model) while S144 refers to removal for medical incapacity. The equivalent provision for the governor and his deputy are contained in the Sections 188 and 189.

Beyond these provisions, I do not see any other place where a president or vice president or governor or his deputy can be declared as no longer holding his office because he has joined another party. The only reference to the relationship between the four executives and political parties can be found in Section 131 (c) (president and vice president 177(c) governors and the deputy), which states that "he is a member of a political party and he is sponsored by that political party".

All that is required here is that a political party sponsors you during an election time. Beyond that, one is reading into the constitution what is neither a letter nor a spirit of the constitution in attempting or proposing that a person who was elected into office under party A cannot join party B without the consequence of losing his position.

It is nothing but pure mumbo jumbo to declare Mr. A no longer the holder of an elected executive office just because he is seeking an election under another party. Freedom of association is guaranteed under the constitution. Freedom to seek office is also guaranteed under the constitution. Even in the case of Plateau State where six funny men declared that not only have the majority members lost their seats but that they have "impeached" the governor, Nigerian jurists have been made the butt of jokes in lawyers' circles all over the world.

The supremacy of the constitution is sacrosanct. No democratic nation ever toys with its constitution without inviting anarchy. Indeed, the Supreme Court said in Balewa Vs Doherty (1963) IWLR 949 that.

"The constitution is the supreme law and its provision shall have binding force on all authorities and persons throughout Nigeria".

In deed, the tendency today is to engage in executive legislative adjudication. This throws the principle of the separation of powers into the dustbin. It is mind-boggling when a court of appeal has given a succinct and lucid judgment and a Police boss says he is waiting for the Attorney General to tell him to accord recognition to Ladoja or not.

We have to remind ourselves of what the court said in Samuel L. Ekeocha Vs The Civil Service (1981) INCLR 155 that "The doctrine of separation of powers is predicated on the proposition that the organs of government can be classified into the executive, legislative, and the judiciary, and that no one of these should exercise the functions of the other. The presidential system entrenched in the 1979 Constitution of Nigeria deliberately separated and balanced powers among the legislative, the executive and the judiciary. It is, therefore, not the function of the legislative arm of government to interpret the constitution or law it made. This will amount to usurpation of judicial powers and, therefore, void".

I, therefore, advise the protagonists of the loss of executive office by joining another party to refer this matter to the courts. Executive and legislative gangsterism as witnessed in Plateau, Oyo, Bayelsa, Ekiti among others, should and must be condemned by all who have a sense of history and a vision of the future. Any one in doubt should ask how and why the almighty Tafa Balogun, IGP, could be handled so disgracefully by a regime it fought for. No condition is permanent. The precedent you set today will be used as a model against you in the future. A word is enough for even an idiot.