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Sacking Defecting Governors Deserves Supreme Court’s Support

by Leading Reporters March 13, 2022
written by Leading Reporters

By Tonnie Iredia

On March 08, 2022, a federal High Court sitting in Abuja sacked the governor of Ebonyi state and his deputy as well as a number of state legislators for defecting from the party on whose platform they were elected. Reactions to the judgment have been overwhelming.

While most people found no fault with removing the law makers from office because it tallies with the express provisions of the Constitution, opinions are divided as to the legality of the judgment concerning the governor and his deputy whose defection the same Constitution is silent on. In 2018, when the governors of Benue, Sokoto and Kwara states similarly defected, what carried the day was the argument that the Constitution did not include defection among the factors for which governors can leave office. The implication of this is that how to handle a defecting governor will for some time to come remain an unresolved issue in Nigeria’s democracy. But bearing in mind that the occurrence is patently repugnant, one would have thought that steps would have since been taken to resolve the issue, but that has not happened.

A critical objective of this piece is to draw attention to the need to punish the wrong of defection by those who appear to be inadvertently protected by the law when they are in the wrong. Perhaps an appropriate take off point is to establish that political defection is a wrong which is not a difficult task to handle because as stated earlier, there is a consensus that it is a wrong on the part of law makers. But is it not curious to describe the act of transferring votes by some actors from one political party to another as a wrong and pretend that the same act is probably not a wrong when perpetuated by another set of actors? Luckily, most people deprecate the act of political defection which short-changes a particular set of voters irrespective of who the wrong-doers are. Unfortunately, whereas the law prescribes punishment for law makers involved in the act, it does not similarly do so for governors. But considering that the failure to punish a wrong does not cure the wrong of its defects, the best way to go seems to be to seek to punish every wrong doer on the basis that under the rule of law, everyone is supposedly equal before the law.

Against this backdrop, there are several issues calling for attention. The first of such issues is ownership of votes cast in a Nigerian election; is it the property of a candidate or his/her political party or both? The Constitution has left no one in doubt that political parties are the most important actors in the nation’s electoral process. To start with, the Constitution provides that only aspirants sponsored by political parties can be candidates in an election. Put differently, no one can dispense with political parties which is why it is impossible to be an independent candidate in any Nigerian election. Besides, the Judiciary has consistently held that votes at an election belong to political parties notwithstanding that the charisma of individual candidates may have helped a party to secure victory. In recent contests (Imo North Senatorial and local elections in Abaji-FCT) INEC declared specific political parties as winners pending the determination of their authentic candidates.

The second issue of importance is the power to transfer votes from one party/candidate to another. Here, it is obvious that in view of the strategic position of political parties as owners of votes cast in elections, a candidate who has been declared winner of an election cannot later transfer his votes to another party/candidate. Anyone who does so, is involved in the wrong of defection which can hurt the interests of some persons or groups. Based on this reasoning, the logical necessary follow-up question would take this form. Is it in order for the relevant societal institution – the Judiciary to overlook the wrong of such transfer of votes which a defection of an elected office-holder may have caused? If not, how best can the subject be handled?

For long, very many senior lawyers have continued to argue that removing a defecting governor from office is unconstitutional. However, they have all been silent on the propriety of leaving a wrong without a remedy. Here, it is apt to recall the Latin maxim ‘ubi jus ibi remedium’ which is an age-long philosophy meaning “for every wrong the law provides a remedy.” It is therefore not enough to lament the failure of the Nigerian Constitution to provide a remedy for the wrong of political defection by a governor because it is not only a Constitution that has the duty to provide every remedy; in what is known as judge-made law, a Court can also interpretatively prescribe a remedy to a wrong. Surprisingly, no effort has been made in recent years to follow the clear path identified by the greatest Nigerian judges of all times on what the nation should do when confronted by the issue of lack of provisions for an inevitable cause of action. In other words, Nigerian Courts ought to inventively dispense substantive justice instead of allowing a wrong to persist without sanctions because of over-reliance on technicalities.

As Karibi-Whyte a one-time famous justice of Nigeria’s Supreme Court once explained, “… it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the Plaintiff has established a right…” Although some analysts have criticised the decision of the Supreme Court in the famous Rotimi Amaechi’s case, it is quite hard to disagree with the proactive posture of the Justices that if a court is satisfied that a person has suffered a legal injury it ought to do justice by providing “a remedy irrespective of the fact that no remedy is provided either at common law or by statute.” Indeed, a court needs to do this so as to be able to follow the persuasive dictum of another legal luminary: Justice Katsina-Alu who opined that “the law is an equal dispenser of justice which leaves no one without a remedy for his right.”

With this clear line of thought provided by judges of old, no one can defend the
current conservative approach which gives an impression that the judiciary in Nigeria has been subdued by the other arms of government. The situation is more worrisome because defecting governors have never proffered any rational motivation for their behaviour other than personal materialistic interests. For example, Governor Ben Ayade of Cross River State defected because he reportedly wanted to support the President to provide good governance. Dave Umahi of Ebonyi State on his part defected to the ruling party because he doubted if his original party would zone the presidency to the South East. In the case of Zamfara State, Governor Bello Matawalle defected to a political party which the judiciary ruled was not in existence in the eyes of the law. These bizarre defections ought not to be protected through judicial over-reliance on technicalities which can encourage other actors into seeking extra-judicial means of ventilating political grievances.

As if to reiterate the definition of law by the legendary English jurist, Lord Denning which sees law as what the Judge says it is, Justice Inyang Ekwo has taken the first crucial step in bringing to an end, the notorious wrong of Nigeria’s political defections. All Higher Courts should support him by disallowing the perpetrators from using the protection offered them by the Constitution to hide behind fraudulent activities. Any defector-governor should not be seen as someone removed from office; but one who worked away from a mandate. He should thus not be allowed to transfer the same mandate elsewhere because its owners – the electorate had instinctively determined where the mandate should be.

……..Professor Iredia, a former Director-General of the NTA, media law teacher, communication expert and broadcast manager wrote from Abuja.

March 13, 2022 0 comments
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OpinionHeadlines

Matawalle’s judicial victory: Matters arising

by Leading Reporters February 13, 2022
written by Leading Reporters

By Tonnie Iredia

The Federal High Court, Gusau Division last week, was reported to have affirmed Bello Matawalle as governor of Zamfara state. The verdict of the case which was to oust Matawalle for defecting to another party did not surprise many because the reason for it is not new.

One point that has been consistently canvassed is that the defection of a governor from one party to another is not one of the conditions listed in our constitution for the removal of a governor from office. As a result, anyone who is eager to remove governor Matawalle or any of his colleagues from office has to follow the legal and appropriate provisions of the law. If so, why were very senior and respected lawyers part of the move by the Peoples Democratic Party (PDP) to use the judiciary to sack the Zamfara governor for an offence that is said to be unknown to the law? Were they testing the waters or hoping that some activist judge might be swayed by the need to help society attain good public policy? However, the last may not have been heard of the case because only last Thursday, the Federal High Court Abuja granted a plea by the PDP to join governor Matawalle as a defendant in another suit seeking his removal.

While we are confident that the judiciary would in due course deal with the issues raised, many politicians and perhaps some curious individuals are becoming more concerned about how best to deal with many subjects which are also reportedly not known to the law but from which some people are reaping legal fruits. One such subject is what now looks like the participation of a non-existent entity in the government of Zamfara state.

The story behind it all is not difficult to recall. During the last general elections in the country, the ruling party in the state, the All Progressives Congress (APC) was declared winner of both the governorship and majority of the seats at the House of Assembly by the Independent National Electoral Commission (INEC). The judiciary however over-turned the verdict having found the APC guilty of breaching the rules of the game. In other words, in the eyes of the law, the APC did not participate in the election and was even asked to pay a fine of N10million. From nowhere, some politicians have ‘circumlocuted’ to now conceive an inexplicable idea that some people answering the same name of APC and recognized by the national leadership of the APC now constitute the state government.

Expectedly, people are now asking a series of questions: (a) Can the APC which in the eyes of the law was non-existent in a state produce a governor for such a state? (b) Should the law recognize anyone who purports to be an APC governor in Zamfara state? (c) Should we discountenance those who think Matawalle should not be assisted to sustain such weird claim? (d) Are such persons, not raising a fundamental poser which public policy actors should ponder over quickly and seriously too? While not discussing the rationality of the judicial affirmation of Matawalle as governor especially because this column is not the correct location for that, it seems obvious that the judicial pronouncement has a technical foundation. In which case, the scenario may not be the fault of the judiciary as it is not expected to base its decisions on issues of morality or emotions and pressures of the moment. If so, it is time to begin to consider the other options that can be employed to make our democracy have a proper character.

In fact, like many other defects such as the issue of fake credentials by candidates which we have since been dealing with, it is also critical to identify strategies by which society can stop unstable actors who jump from one political divide to another from spending precious governance time on politicization. While it is likely that the Zamfara case would have been easily handled if it had arisen during the electioneering era especially during election petitions, time cannot legitimize inappropriate behaviour.

If it is allowed to remain, the contradictions it poses for the political system can pollute our democracy. To start with, it overturns the wishes of the people. During the 2019 general elections, the people of Cross River and Ebonyi states voted for the PDP. The defections of Governors Ben Ayade and Dave Umahi respectively from the people’s party of choice to their newly found party of interest, are quite capable of negating the democratic tenet of the sovereignty of the people. The governors neither sponsored themselves nor were they voted to represent themselves. They were supposed to be in office to represent the people.

As i have argued at some other fora in the past, the sovereignty of the people is the prime tenet of democracy. In every society, power belongs to the people because they are the source of political power. Everything in politics is supposedly done on their behalf by their representatives. When it is the other way round as happens in parts of Nigeria, it merely reverses the legitimacy of government which ought to be premised on the consent of the people. It is perhaps for this reason that many scholars have continued to argue that electoral victory is superior to judicial victory.

We need to take a more critical look at the subject and return power to the Nigerian people. While the power of the judiciary to settle election disputes has been helpful, the judiciary should not have the last say in determining the wishes of the people. A re-run election which gives the people the last say might be better. For instance, there is no proof that such a fresh exercise in Zamfara state which would have excluded APC having been disqualified would have been won by PDP that was second in the first exercise.

In Nigeria, party supremacy may be a myth in practice but in law it is real because the Nigerian constitution provides that only persons sponsored by political parties can contest elections in the country. To further confirm this privileged position of Nigeria’s political party system, the judiciary has consistently held that it is political parties that win elections and not their candidates.

As stated earlier, elections that were won by PDP in Cross River and Ebonyi states can at no point in time become APC victories simply because their governors found cause to change ship. It is worse in Zamfara, where APC was not one of the contesting parties in both the governorship elections and in the entire general elections of 2019. We cannot continue to criticise our parties as having no distinct manifestos and at the same time pretend not to know that politicians who can switch parties at will cannot in truth stand for anything distinct or original.

I consider it simplistic to argue that the defection of a governor is in line with the principle of freedom of movement. My position is that there is time for everything. A decent governor can resign at any time to join another party which he suddenly finds more appealing but it certainly amounts to usurpation for such a governor to hold-on to the mandate of another party while moving to a new party. Such a governor betrays the people who voted for him because he was known as the candidate of their preferred political party.

He also betrays many others such as those who stood as his nominees as part of the requirement for eligibility to contest elections in Nigeria. What the unending issues of materialistic defections suggest is that the constitutional provision which bars individuals from contesting elections as independent candidates has since become superfluous. Too many of such contradictions in our system ought to be expunged. They are the real issues which our law makers should put in the front burner of our so-called constitution amendment instead of issues of personal and party interest.

February 13, 2022 0 comments
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