THE CONSTITUTIONAL IMPLICATION AND LEGAL EFFECT OF THE DEFECTION OF AN ELECTED OFFICIAL

UNDER THE NIGERIAN CONSTITUTION.

By: Yusuf Ibrahim Dasin,

yusufdasinibrahim@gmail.com,

08032957188.

Nigeria is a nation of constitutional democracy governed by the dictates of a written constitution. The
recent and existing one is the 1999 Constitution of the Federal Republic of Nigeria (as amended) 2011.
The powers, duties and responsibilities of discharging the affairs of government are clearly spelt out in
the Constitution, with some minor once contained in other pieces of subsidiary legislations. By
implication it means that, the federation or any of it part thereof shall not be governed, except in
accordance with the Constitution. The application and enforcement of every law having force of power
is derived from the grandnorm (i.e the Constitution), whereas any law that is made contrary to the
provisions of the Constitution shall be declared void, in the accounts of inconsistency. This underlined
principal philosophy was termed as the "Supremacy Clause" as enshrined under section 1 (1)(2)&(3) of
the Constitution.

The current situation and contemporary argument in Nigerian political circle is the extent of
constitututionality or otherwise of the defection or rather decamping of the executives and legislatives
while still in office. Most recent one is that of the Executive Governor of Zamafara state H.E. Alhaji. Bello
Matawalle, alongside some of the state national and state legislatives, while the deputy governor chose
to remain in his sponsored political party, which we shall be taking as a reference point of this paper.
Following from the various non legal arguments and opinions coming out from different proprietors, it is
imperative to stress and treat the constitututional basis and legal position of matter involved in the
whole case.

At one point some commentators opined that, by virtue of his defection, the governor shall vacate his
office, and the strongivity of their argument lies on the fact that, the seat was given as a reserved
privilege of the party that sponsored his election and not otherwise his personal person. To resolve this
constructively, it is important to find whether the constitution make any provision to that effect? It is
evident that the constitution neither encourage nor declear illegal the defection of a governor while in
office, hence it is as equal as saying that the Constitution is silent about it. In view of finding the legality
or otherwise of this, recouse shall be taken to Chapter VI particularly Part II of the constitution to see if
there is any provision whose interpretation could resort to that. Having critically gone through, it shall
be seen that neither any provision from that part of the Constitution nor any subsidiary legislation
declear illegal, the defection of the governor. As such it could affirmatively be resolved that the governor
or any person holding an executive Office shall have absolute right of defection from one political party
to another.
Another misconception coming from other set of commentators is that, the deputy governor should
vacate his office on account of not complementing to go along with the governor, hence they were all
elected under one and single platform. On this perception, it is pertinent to draw an inference,
highlighting that, the office of the deputy governor is a powerful establishment and constitutionally
licensed institution and not just a rubber-stamp one. Therefore, neither the constitution nor any existing
law mandate the deputy governor to share same though unwanted opinion with the governor at all cost.
From this of course it could be deduced that, failure of the deputy governor to defect with his boss does
not in anyway affects the validity of his office. The principal authority to this effect is the Supreme Court
decision in the case of ATIKU VS OBASANJO.

Furthermore, a similar relevant debating issue is the defection of a legislative member. The implication
of the law differs in the two accounts. Whereas the Constitution is said to be silent on the above matter
and make no declaration of consequence on the defection of an executive, it made declaration with
consequence on the decamping of a legislative member whether a Senator, A member of a House of
Representatives or A member of a House of Assembly, from his political party to another, with some
certain limitations.

The legal basis of this principle is clearly stated under the provisions of section 68(1)(g) and section
109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 2011. The strict legal
effect of this twin sections implies that, a legislative member of any of the two Chambers of the National
Assembly or a state Assembly shall vacate his office if that member, being a person whose election to
the House was sponsored by a political party, he becomes a member of another political party before
the expiration of the period for which that House was elected.

The combined effect and application of the above constitutional provision is subject to some limitations,
which states, 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 or of a merger of two or more political parties
or factions by one of which he was previously sponsored.

Following from the forgoing notion, it could be seen how crucial the Constitution gave approach, as to a
matter of defection of people who were voted from the political party that sponsor them to another
party before the expiration of their time of office.