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By Tonnie Iredia

In 2007, the Nigerian Judiciary turned down a request by the Federal Government to declare the office of Vice President Atiku Abubakar vacant on account of his defection from the then ruling People’s Democratic Party (PDP) to the Action Congress (AC).

The decision was premised on Section 308 of the Nigerian Constitution which protects a sitting President and his Vice as well as State Governors and their deputies from being prosecuted in court while in office. Atiku’s case therefore helped to underscore the inviolability of the immunity clause.

However, conscious of some likely negative effects, such as abuses by political office-holders, Umaru Yar’adua who became President a few months later, sought to expunge it from the Constitution. Yar’adua pointedly argued during the launch of his anti-corruption campaign that nobody in Nigeria deserved “the right to be protected by law when looting public funds.”

The suggestion was well received in many quarters, especially by those who wondered which party manifesto a Defector-Vice President would execute while in a ‘limbo-office.’ Interestingly, the Action Congress reputed to consist of progressives opposed the proposal on political grounds thereby making it more difficult for possible negative fall-outs from Section 308 to be resolved.

According to the then Publicity Secretary of the party, Alhaji Lai Mohammed, it was not the immunity clause that was protecting looters but the lack of political will by government to tackle corruption. The immunity clause survived, not because many were persuaded by the reasoning in Atiku’s case, but more because the attempt to sack Atiku was seen as political and not on account of corruption. In addition, Nigerians had assumed that any ill-gotten wealth garnered by corrupt leaders would be legally retrieved later while those found guilty of corrupt practices would be severely penalized.

This assumption has since been disproved especially after a former party chieftain declared that those who defect to the ruling party would have their sins forgiven. Perhaps, no one imagined that the immunity clause which was genuinely inserted in the Constitution to dissuade anyone from distracting the executive arm would be exploited by the same beneficiaries to commit mischief.

The logical reasoning was that as a developing society challenged by infrastructural deficiencies, leaders in the executive arm would have so much to do about development to have spare time to be engrossed in politics. In truth however, many Nigerian politicians are prepared to hide under constitutional protection and technicalities to engage in unwholesome political and electoral mal-practices. It is now obvious in retrospect that office holders who enjoy immunity are able to use the privilege negatively for personal gains which was not the purpose of the provision.

This over-pampering of executives who are not required to reciprocate the goodwill accorded them ought to be reviewed. For example, whereas the constitution stops anyone from instituting legal cases against leaders in the executive arm, the same constitution failed to also bar such leaders, while in office, from initiating same against members of the public. So, they can sue but cannot be sued! They are also free to engage in political immorality which they quickly defend using the instrumentality of the immunity clause.

Even the legal injunction that executives should not be engaged in other assignments except governance has not materialized. The first problem came from a new arrangement in which candidates elected at elections suddenly became designated by their parties as national leaders in the case of President or state leader in the case of governors. The main result of this designation and consequent preoccupation with party matters is that the executives have been diverted from spending ample time on governance issues as if they were elected by the entire electorate to run one political party or the other.

President Muhammadu Buhari as the national leader of the ruling APC has had to take charge of the party at different times. At a point he, had to arrange for a caretaker management when the party’s chairman was removed while he stepped in again recently to stop the party’s national convention from derailing. Governors Mai Mala Buni of Yobe, Abubakar Bello of Niger and Gboyega Oyetola of Osun had to virtually run the national working committee of their party for almost two years thereby relegating the tedious but substantive task of state executives.

While many state governors are now more seen in Abuja than their state capitals dealing with one party issue or another, many have in the last one year traversed the length and breadth of the country on party assignments well ahead of the official time for electioneering. As a result, the original time for governance has been heavily appropriated while expanding the time for electioneering. Yet, the constitution, in anticipation of the numerous projects of development that have to be executed for the benefit of the masses barred everyone from distracting executives.

In the midst of these self/party imposed distractions, some governors are counselled that to be reelected or elevated to higher positions, they have to defect to another party. They hurriedly implement such arrangements ignoring the fact that their current positions were attained through the sponsorship of another political party. If legally challenged, they are able to plead Section 308 of the Constitution. What bothers many about this trend is that it is only the arguments of senior lawyers copiously quoting the Supreme Court that the people hear.

No one considers that some die-hard actors would soon design extra-judicial arrangements to protect their votes from being transferred to another party. In other words, the injustice of defection which converts winners to losers by transferring the votes obtained at elections may soon generate political violence leading to another inexplicable insecurity. To confirm that there is no remorse about the approach, even legislators that the Constitution says should lose their seats upon defection are left untouched. What then is the purpose of voting, if the wishes of the people can be recklessly reversed?

The expectation that somewhere along the line, judicial activism would decisively put a halt to the vicious attack on the spirit of the Constitution is daily fading. At the same time, the justification for defection is becoming more bizarre by the day. The other day, one governor who was defending his defection from one party to another said on national television that he moved to avoid a fellow governor whom he described as a bully. He neither explained the venue of the alleged bullying nor how a governor in another state can stop him from working in his own state.

What he inadvertently confirmed was that he loathes how the so-called unnamed bully operates during party meetings. But why should a governor, an otherwise statesman, be occupied with party matters? When the court declined to remove him from office, he publicly celebrated “victory” whereas what happened was that the court couldn’t find an approved punishment for his unwholesome conduct.

Except the country finds a way of reversing the trend, defectors would increase shortly thereby retarding national growth and development. So far, the way the cases in court challenging the politicization of governance are being handled suggests that the reprehensible conduct will not be addressed soon as all eyes are turned towards only the letters of the law. With the fast approaching primary election for which everyone is already in the mood for campaigns not much can be done in the area of pushing for an amendment to Section 308 of the Constitution.

The direction to look towards in the circumstance is for our Supreme Court to help shape our public policy by using its powers of interpretation to positively expand the provisions of the section in such a way that the genuine intention of the drafters of our Constitution is attained. For example, considering that the judiciary has said that votes scored at an election belong to political parties, the executives wishing to defect should be allowed to do so but without taking away votes which still belong to their erstwhile parties.
April 10, 2022