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Our chief concern here is to discuss the legal consequences of the current spate of party defection by members of the Peoples Democratic Party (PDP) to keith wuornos the All Progressive Congress (APC). We shall leave the task of recounting Nigeria's history on carpet crossing to historians and shall not be bordered by it. We shall also not allow ourselves to be drawn into arguments as to the morality/propriety of carpet crossing.

The media is awash with the news of the defection of 37 PDP members of the House of Representatives to the APC. Already, five PDP governors have dumped the party for the APC. The collapse of the PDP as the ruling party in Nigeria and as Africa's biggest political party seems imminent as unconfirmed reports say that twenty-two senators are planning to also dump the party for the APC.

Nigerian law on carpet crossing begins and ends with the provisions of Sections 68(1)(g) and 109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria. These sections provide that:

"a member of the Senate or House of Representatives or State House of Assembly shall not vacate his seat in the House of which he is a member if being a person whose election into the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which the 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 of a merger of two or more political parties by one of which he was previously sponsored."

It is interesting to note that unlike the purport of above provisions, Sections 135 and 180 of the said Constitution which provides for circumstances under which the President or his Vice, and a Governor or his Deputy could cease to hold office does not mention party defection as a ground for vacating or ceasing to hold office.

From the above provisions therefore, Nigerian law on carpet crossing could be summarized as follows:

1. A Legislator in Nigeria could lose or vacate his seat in parliament if he defects from the party that sponsored him into the Legislative House to another party.

2. A Nigerian Governor, Deputy Governor, President or Vice President cannot vacate or cease to hold office for defecting from the political party that sponsored him into office to another.

3. Before a Legislator in Nigeria could be made to lose his seat in parliament for defecting to a party other than the one that sponsored him into the House, the principal officer of that Legislative House( the Senate President, the Speaker of the House of Representatives or the Speaker of the State House of Assembly as the case may be) or a member of that Legislative House must first present evidence satisfactory to the Legislative House concerned that a member has defected from the political party that sponsored him into the House to another political party and has by operation of law vacated his seat in Parliament.

4. It follows from the above that if there is no satisfactory evidence presented to the Legislative House on a member's defection, the member who is alleged to have defected can still retain his seat. He will however continue to be known and addressed as a member of the party that sponsored him into the House.

5. A Legislator in Nigerian can cross carpet to a party other than the one that sponsored him into the House and still keep his seat if he can prove that his defection was as a result of a division within his former party.

6. Also, a Legislator in Nigeria will not lose/vacate his seat even though he has defected from the party sponsored him to another party if he can prove that his membership of a new party is as a result of a merger of two or more political parties or factions by one of which he was previously sponsored.

The position that while a Legislator in Nigeria is liable to lose his seat in parliament for cross carpeting to another party, the President, Vice President, Governor or Deputy Governor is not liable and cannot be forced to vacate or cease to hold office for the same reason was endorsed by the Nigerian Supreme Court in the case of AGF V. Atiku Abubarkar (2007)4 S.C (pt.11)62 where the issue before the court was whether the Vice President's defection from the PDP( on whose platform he was elected into office) to the Action Congress of Nigeria(ACN) meant that he had automatically vacated and ceased to hold that office.

The Supreme Court held that it is only Legislators that are liable to vacate their seats in parliament for defection to a different party from the one that sponsored them into office. The supreme held that the constitution does not envisage or provide for the vacation /cessation of the office of the President, Vice President, Governor or Deputy Governor for defection from the party that sponsored them into office to another party. The Apex court held therefore that Vice-President Atiku Abubarkar was entitled to keep and/or in office even though he had effected from the PDP to the ACN.

Again, the position that a legislator may lose his seat in parliament for cross carpeting to another political party has been affirmed by the court in some decisions. For instance, the Federal High Court of Nigeria sitting in Akure in the case of Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors. sacked Mr. Abegunde, a House of Representatives member representing Akure North and South, Ondo State for defecting from the Labour Party to the ACN. Mr Abegunde had been elected into the House under the auspices of the Labour Party in the April 2011 General Elections. He however, defected to the ACN during the currency of the tenure of the House. The court held that Mr Abegunde had vacated his seat and ceased to be a member of the House by operation of law. This decision was affirmed and upheld by the Court of Appea in Re Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & Ors. (2014) LPELR-23683(CA),Appeal No.CA/AK/110/2012.

Again, in the case of Hon. Michael Dapialong v. Chief (Dr) Joseph Chibi Dariye, Appeal No. S.C 39/2007 the Supreme Court took judicial notice of the fact that between 25th and 26th July,2006, fourteen members of the twenty-four members of the Plateau State House of Assembly including the Speaker and the Deputy Speaker thereof defected from the PDP platform on whose they were elected to the House in 2009 to the Advanced Congress of d Democrats(ACD) as a result of which the said 14 members were held to have vacated their seats by operation of law.

Relying on the Supreme Court decision in AGF V. Atiku Aburbakar therefore, we can safely conclude that the five PDP Governors that had defected to the APC can validly do so without being liable to vacate or cease to hold their offices. This is because the Constitution simply does not penalize the President, Vice President, a Governor or Deputy Governor who dumps the party that sponsored him into office for another party. Also, unlike Legislators, these members of the executive arm of Government are not required to proffer explanations or reasons to justify defection.

By a letter addressed to the Speaker of the House of Representatives, titled 'Communication of Change of Political Party' and dated the 18tth December, 2013, the 37 defecting Federal Lawmakers explained that their defection from the PDP to the APC was as a result of the internal crisis within the PDP. The Lawmakers also premised their defection from the PDP to the APC on the fact that the PDP has broken into two factions: the New PDP and the Old PDP. The so-called New PDP consisting of the dissatisfied and disgruntled members of the party, the majority of whom have defected to the APC.

It is to be recalled that in Agundade's case, he had argued that given the internal crisis, division and factionalization within the Labour Party, he was entitled by virtue of the proviso in Section 109(1)(g) of the 1999 Constitution to defect from the Labour Party to the ACN without losing or having to vacate his seat in the House. The court however ruled that since he could not prove division or factionalization within the Labour Party, he was not entitled to keep or retain his seat after he decamped to the ACN. That he vacated his seat upon defection to the ACN by operation of law.

The proviso to the provisions of Section 68(1) (g) and 109(1) (g) of the 1999 Constitution are to the effect that although a Legislator would ordinarily lose his seat if he defects to a party different from the one that sponsored him into the Legislative House, he is entitled to keep his seat if he can prove that:

1. He defected to a new party as a result of division within the party that sponsored him into the house.

2. His membership of the new party is as a result of the merger of two or more political parties or factions by one of which he was previously sponsored.

Before we proceed to examine whether the internal crisis rocking the PDP falls within the proviso to Sections 68(1)(g) and 109(1) (g) of the Constitution, it is pertinent to determine what constitutes division in a political party. The constitution does not define word "division". The Oxford Advanced Learners Dictionary of Current English, 6th Edition, defines division as a disagreement or difference in opinion or way of life etc especially between members of a society or an organization.

According to Professor Okey Okon of the South Central University, California, USA, division could arise from:

1. Ideological differences and

2. Organizational differences.

Organizational differences denote conflict, division, crisis etc arising as a result of the way and manner the party is run, operated or managed. In fact, all conflicts and crises arising from the management and operation of the organic structure of the political party fall under the category of organizational differences. Conflict, division or crises arising from organizational differences bordering on such issues as internal democracy mechanism of the party, conduct of primaries election, funding, election of principal officers of the party, adoption of candidates as party flag bearer for election, handling of party finances, planning and execution of election campaign strategies etc come under organizational differences.

It is a notorious fact that the PDP has from inception been bedeviled by internal crises caused by the occurrence of undemocratic practices within the party. The defecting 37 Federal Legislators have alleged that their defection from the PDP to APC was as a result of division and internal crises within the party and that they are entitled to keep their seats in parliament. We do not know the particulars of the alleged division or crises within the PDP but if their allegations are true then they are entitled to keep their seats in parliament.