By Sylvester Udemezue
Part 1 of this “I am an Authentic legal Luminary” law discussion series has been published under the titled, ‘THE “I AM AN AUTHENTIC LEGAL LUMINARY” SPEECH: A MISSED OPPORTUNITY TO RENDER AN ALL-INCLUSIVE LEGAL OPINION ON BURNING LEGAL QUESTIONS AFFECTING RIVERS STATE (PART 1) was published on 21 October 2024. Please, help me and read it. Thank you.
In that piece, I reproduced the declaration made by respected learned Chief OCJ Okocha, OFR, SAN, JP, DSSRS, ex President of NBA, ex Attorney-General of Rivers State, ex Chairman of the Body of Benchers, ex Chairman of the Council of Legal Education, etc, and a notable legal giant who has put in over 46 years into active law practice in Nigeria, at a luncheon organised “in honour of the 10th Legislative Assembly of Rivers State” in Port Harcourt on 19 October 2024 by His Excellency, Nyesom Wike, Life Bencher, former Governor of Rivers State, and current Minister of the FCT, Abuja:
“…. Look at the authentic legislators of Rivers State, led by Hon Martins Amaewhule…. All of us, the good people of Rivers State, patriotic citizens of Rivers State, stand in solidarity with you, the authentic legislature of Rivers State…. I assure you, my brother Martin that God is on your side…. I also assure you that the law is on your side….. Thank you all, and may we all continue to pray for our authentic legislature.” (See: “OCJ Okocha Replies Fubara – Asks Fubara To Stop Deceiving Himself; Says Wike and Amaewhule are Ahead”<https://youtu.be/nNGrqHYZuQ4?si=NRk2thubMxzbE7hG> Accessed 20 October 2024
QUESTIONS ARISING FROM THE LEARNED SILK’S REFERENCE TO THE 27 DEFECTED LAWMAKERS AS THE “AUTHENTIC LEGISLATORS” OF THE RIVERS STATE HOUSE OF ASSEMBLY?
(1). SOME AVAILABLE EVIDENCE OF THE DEFECTION OF 27 MEMBERS OF THE RIVERS STATE HOUSE OF ASSEMBLY LED BY HON MARTINS AMAEWHULE?
(a). About a fortnight ago, I had circulated on the social media, a Certified True Copy of the Affidavit duly deposed to by Hon Martins Amaewhule on behalf of himself and 26 other members of the Rivers State House of Assembly, and filed at the Federal High Court of Nigeria on 13 December 2023 in Suit No: FHC/ABJ/CD/1783/2023 (Rt Hon Martins Amaewhule & 26 Ors v INEC & 5 Ors), and particularly paragraphs 1, 2, 3, 4, 5, 6, 8, and 15 of the said Affidavit which read as follows:
(1). That I am the 1st Plaintiff, Speaker of the Rivers State House of Assembly and was duly elected Speaker of the 5th day of June 2023 by virtue of which I am seized of the facts of this case deposed herein.
(2). That I have the consent and authority of all the other Plaintiffs to depose to this Affidavit.
(3). That all the facts deposed to herein are within my personal knowledge except otherwise stated.
4). That I was duly elected as a member representing Obio-Akpor State Constituency in the Rivers State House of Assembly in May 2023 on the platform of the Peoples Democratic Party and the 5th day of June, 2023, I was elected Speaker of the Rivers State House of Assembly.
(5). That the 2nd Plaintiff is the Deputy Speaker of the Rivers State House of Assembly and was duly elected Deputy Speaker on the 5th day of June, 2023. The 2nd Plaintiff also represents Gokana State Constituency in the Rivers State House of Assembly having been duly elected by his Constituents in the May 2023 General Election on the Platform of the Peoples Democratic Party.
(6). That the 3rd — 27th Plaintiffs are also members of theRivers State House of Assembly duly elected to represent their respective constituencies in the Rivers State House of Assembly on the platform of the Peoples Democratic Party.
(8). That the Plaintiffs contested the aforesaid elections on the platform of the Peoples Democratic Party and had remained members of the Peoples Democratic Party until 11/12/2023 when they (Plaintiffs) left Peoples Democratic party and joined the All Progressives Congress as a result of a division in the Peoples Democratic Party.
(15). That faced with the state of uncertainty and confusion in the 2nd Defendant [People’s Democratic Party (PDP)] caused by the division in the Political Party, the Plaintiffs [Hon Martins Amaewhule & 26 others] were forced by the state of affairs within the 2nd Defendant [PDP] to defect and join the All Progressives Congress (APC).
(b). Below is a YouTube video clip I have found online, showing Honorable Martins Amaewhule leading (as he said) 26 other members of the Rivers House of Assembly to defect to another political party on 11 December 2023. This as seen in the video, happened on the floor of the House. Please watch it: <https://youtu.be/5uX-E3yxvs0?si=tzawr3xv8aN9ncy5> Accessed 20 October 2024
(c). Below is a YouTube video clip showing of Honorable Martins Amaewhule and 25/26 other members of the Rivers House of Assembly after the 11 December 2023 defection, being warmly received/welcomed by the leadership of their new political party: <https://youtu.be/8LS_VTc7YBo?si=RiBPcSGsuCXVit44> Accessed 20 October 2024.
(d). I have found also several Press Releases, each and all reportedly issued after 11 December 2023, by Hon Martins Amaewhule affirming the reported defection, defending their defection, and even openly bragging about the defection, while giving reasons therefor:
(i). Eagleonline: “Speaking after reading the letters signed by the defected lawmakers, Amaewhule directed the Clerk of the House to convey their resolution to Fubara and other relevant authorities. ” (See: “Rivers: Why we defected from PDP to APC — 27 lawmakers”; Eagleonline; 11 December 2023).
(ii). Platforms Africa: ‘The 26 lawmakers of the Rivers State House of Assembly have said that their defection from the Peoples Democratic Party to the All Progressives Congress was tied to President Bola Tinubu’s “Renewed Hope Agenda”. The factional Speaker, Martins Amaewhule, who led the mass defection, adduced the reason.’ (“Why We Dumped PDP For APC — 26 Rivers Lawmakers”; Platforms Africa; 19 December 2023).
(iii). Sahara Reporters: “Video Confirms Defection Of Rivers Former Speaker, Amaewhule, Colleagues From PDP To APC Despite Court Case” (24 May 2024).
(iv). Vanguard Newspapers: “The factional Speaker of the Rivers State House of Assembly, Rt. Hon Martins Chike Amaewhule said the twenty seven lawmakers decided to defect from the People’s Democratic Party, PDP to the All Progressives Congress, APC because of the crisis rocking the state chapter of the PDP. Amaewhule also said that they left their former party because President Bola Ahmed Tinubu is doing very well with the appointments of Rivers indigenes into various key positions in his government.” (See: “Rivers Factional Assembly Speaker, Amaewhule Lists Reasons for Defection”; VanguardNgr; 17 December 2023).
(v). There are several other reports which have not been denied, in the Punch, the Guardian, ChannelsTv, ARiseTv, etc about the defection.
(2). POSITION OF THE NIGERIAN LAW ON DEFECTION OF A LEGISLATOR?
(a). Section 109(1)(g), of the Constitution of the Federal Republic of Nigeria, 1999 provides: “A member of a House of Assembly shall vacate his seat in the House if –being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of any other political party before the expiration of the period for which that 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 or of a merger of two or more political parties or factions by one of which he was previously sponsored;”
(b). The judgment of the Supreme Court of Nigeria in the case ofA.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178, the Supreme Court of Nigeria (per Aderemi, JSC at page 178) stated as follows: “Members of the Senate and House of Representatives were elected by the people…. I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision…. It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant.”
(c). The Nigerian Court of Appeal judgment in the case of ABEGUNDE V. ONDO STATE HOUSE OF ASSEMBLY & ORS (2014)LPELR-23683(CA) (pp. 78-79 paras. B)(CA), where the Court of Appeal (Per MSHELIA, J.C.A) held as follows: “Appellant has violated the provisions of Section 68(1)(g) of the 1999 Constitution. The consequence is that appellant has to mandatorily vacate his seat as a member in the House of Representatives. The case of A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178 is relevant and instructive on this issue. The Apex Court per Aderemi, JSC at page 178 stated thus: “Members of the Senate and House of Representatives were elected by the people as were the President. Applying the well known principles of interpretation to the above provision of the Constitution, I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party, he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision. His Lordship further stated: -“It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant. No similar provision was made for the Vice-President or even for the President.”
(d). The Supreme Court of Nigeria case of HON. MICHAEL DAPIANLONG and 5 OTHERS v CHIEF (DR) JOSHUA CHIBI DARIYE [2007] NGSC 181), the Supreme Court (per Onnoghen, while delivering the lead judgment): “There is no doubt that there existed in the Plateau State House of Assembly 14 vacant seats as a result of cross-carpeting.”
3). WAS THERE ANY DIVISION AS OF 11 DECEMBER 2023 IN THE POLITICAL PARTY ON WHOSE PLATFORM THE DEFECTING 27 LAWMAKERS WERE ELECTED?
(a). Evidence Of Factionailsation In The PDP As Of 11 December 2023? I am yet to find any report or evidence showing that there was factionalisation or merger arrangements in/by the Peoples Democratic Party as of 11 December 2023 when the 27 lawmakers defected/cross-carpeted to another political party. I would appreciate if anyone who has found, can graciously avail me of such via my email address: lawmentorNGgmail.com. I would really appreciate.
(b). Types Of Defection In a Legislative House In Nigeria (My Opinion): Under the Constitution of the Federal Republic of Nigeria, 1999, defection by a member of a legislative house (the National Assembly or the House of Assembly of a State) may be constitutional or unconstitutional. A constitutional defection is one that happens “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”. An unconstitutional defection occurs when the defection 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”. A major different between a constitutional defection and an unconstitutional defection, in effect, is that in the case of the former, the defecting lawmaker does not lose his seat in the House, unlike in the latter case which results in automatic loss of his seat, meaning that his seat automatically becomes vacant. See Section 109(1)(g) of the Constitution. (See: “Rivers State (Part 2): Can The Remaining Members Of A House Of Assembly Validly Conduct The Business Of The House After An Unconstitutional Defection By The Majority” By Sylvester Udemezue; 13 may 2024; thenigerialawyer; lawandsocietymagazine; barristerng; thenigerianvoice, etc)
(c). Definition of “Division” or “Merger” That Can Justify Defection In A Legislative House In Nigeria:
(i). The case of SPEAKER, CROSS RIVER HOUSE OF ASSEMBLY & ANOR V. EKOM & ORS (2021) LPELR-55738(CA) Per MUHAMMED LAWAL SHUAIBU ,JCA (P. 21, paras. C-F) appears to have explained the type or nature of the DIVISION or FACTIONALIZATION in, or merger by, a political party, which could validly excuse/justify a defection/cross-carpeting by a legislator in Nigeria and save the defecting legislator from losing his seat in the legislative House. The facts of the case are: “The 1st respondent was elected to represent Obubra II State Constituency in the Cross-River State House of Assembly under the platform of the Peoples Democratic Party (PDP). In the course of being a member of the State Assembly, his party under which he was elected became enmeshed in intractable crisis and leadership tussle at the centre that led to the polarization of the party into two factions known as Modu Sheriff and Ahmed Makarfi factions and both factions were therefore engaged in multiple Court cases. As a result of this crisis, the 1st respondent took a decision to defect to the All Progressive Party (APC) which decision he communicated to the Speaker of the Cross-River State House of Assembly. However, the Speaker and the entire members of the House of Assembly took a decision and declared the 1st respondent’s seat vacant citing Section 109 (1) (g) of the Constitution.”
(ii). Still on Definition of “Division” or “Merger”: The Court of Appeal in its lead/leading judgment in that same case, SPEAKER, CROSS RIVER HOUSE OF ASSEMBLY & ANOR V. EKOM & ORS (Per Muhammed Lawal Shuaibu, JCA (pp. 21-22, paras. C-F, F-A) had this to say on meaning of division or faction in a political party: “I have stated that the proviso to Sections 68 (1) (g) and 109 (1) (g) of the 1999 Constitution (as amended) creates an exception to the punishment imposed on a member defecting from the political party under the platform of which he was elected into the legislative house to another party. The exceptions envisaged are that there must have been division in the previous political party, a merger of two or more political parties or factions by one of which the defector was previously sponsored…. A political faction is a grouping of individuals, especially within a political organization, such as political party, a trade union, or other group with a political purpose. A political faction could be described as “a party within a party”. It is thus an internal conflict within an organization and or a small section of a group that has broken off from or separated itself from a larger one.”
(iii). From the above, it appears clear beyond doubt that the political division/faction that would be considered to be in conformity with the extant provisions of the Constitution must be “a party within a party” or “a group that has broken off from or separated itself from a larger one”. This throws up the question as to whether there was a group or faction that had broken off/away or separated itself from PDP as of 11 December 2023 when the 27 members of the Rivers State House of Assembly defected from their own political party to another. Was there another political party or association within the PDP? Was there, as of 11 December 2023, a break-away faction within the PDP, having its own separate/distinct national chairman or leader and claiming independence from the main PDP? Alternatively, was PDP in any merger arrangements with another or other political parties as of 11 December 2023?
(4). Can The Remaining (Minority) Members Of The House Continue With Businesses Of The House Of Assembly After The Majority Has Defected: In Plateau State, 14 members of a 24-member House of Assembly had defected from PDP leaving 10 members. In his lead or leading judgment in that case, DAPIANLONG V. DARIYE (2007) 3 PLR/1983/22(SC); [2007]NGSC 181 (27 APRIL 2007); (2007) LPELR-928(SC) @61, His Lordship, Hon Justice Walter Onnoghen, JSC, while delivering the lead judgment, has this to say, which is self-explanatory: “In the instant case, it is not disputed that 8 out of 10 members in a House of 24 membership initiated and carried out the impeachment of the 1st respondent. There is no doubt that there existed in the Plateau State House of Assembly 14 vacant seats as a result of cross-carpeting. It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of ALL the members of that House, which duties definitely excludes impeachment proceedings”. See also: “Rivers State (Part 2): Can The Remaining Members Of A House Of Assembly Validly Conduct The Business Of The House After An Unconstitutional Defection By The Majority”, By Sylvester Udemezue; published On 14 May 2024.
(5). THE “AUTHENTIC LEGISLATURE” OF RIVERS STATE?
Withthe greatest respect to Chief OCJ OKOCHA, SAN, it’s humbly submitted that all members of the group of 27 led by Hon Martins AMAEWHULE ceased to be members of the Rivers State House of Assembly on 11 December 2023 when they defected to a different political party. It’ is fallacious (that is, misleading) and amounts to a gross misstatement of the extant law, for anyone to refer to members of this G-27 group as the “authentic legislators” or as constituting the “authentic legislature” of the Rivers State. Not only are they no longer members of the Rivers State House of Assembly, it’s a criminal offence for them to continue to parade themselves as members of the House of Assembly of Rivers State or for them to purport to sit or to transact businesses as members of the Rivers State House of Assembly. Further, they do not have any locus standi to represent the Rivers State House of Assembly anywhere, in anything or in any lawsuit. See SECTION 99 OF THE CONSTITUION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 which provides: “Any person who sits or votes in a House of Assembly of a State knowing or having reasonable grounds for knowing that he is not entitled to do so commits an offence and is liable on conviction to such punishment as shall be prescribed by a Law of the House of Assembly”
(6). FURTHER READING; Personal/private opinion on the legal aspects of the imbroglio in the Rivers State house of Assembly (— these are published on several media platforms; all you need to do ro read is search the internet). My opinions do not lay any claim to infallibility. I write to provoke further discussions in the interest of the rule of law and constitutional democracy, and especially in exercise of my rights as guaranteed under Section 39 of the Constitution of the Federal Republic of Nigeria, 1999, and in Rule 42 of the Rules of Professional Conduct for Legal Practitioners in Nigeria, 2023. Finally, as I wrote earlier in a piece titled, “The Place for “KICK-BACKS” & “BRIBES” in our Efforts to Kick Back Corruption & Kick-Start responsible Governance in Nigeria” By Sylvester Udemezue (24 October 2018; BarristerNG), “A major duty legal researchers and rule of law campaigners owe society in the practice of constitutional democracy for promotion and sustenance of responsible and responsive governance is to constantly offer legal opinions on issues of law to guide our leaders and institutions in the discharge of leadership responsibilities”. Enjoy reading me while I eagerly look forward to hearing from you with your ripostes, comments, observations. Some will even begin on the path of ad hominem, more often than not, to divert attention from the real issues. All are welcome. I assure you of one thing: we shall continue to write, until Nigeria goes from rotten to bad and quickly out into good, then better and until the best:
(a). ‘Rivers State: Analysing the just-ended Wike-Fubara war in light of Governor Sim’s “no price is too much for peace to reign” declaration’, By Sylvester Udemezue; published On 20 December 2023.
(b). “Rivers State: Court Pronouncement Not Necessary in Vacation of Seat of A Defecting Lawmaker in Nigeria” By Sylvester Udemezue; published On 13 May 2024.
(c). “Rivers State (Part 2): Can The Remaining Members Of A House Of Assembly Validly Conduct The Business Of The House After An Unconstitutional Defection By The Majority”, By Sylvester Udemezue; published On 14 May 2024.
(d). “Two Legal Questions About Rivers State House Of Assembly; Answers From The Appellate Courts ” By Sylvester Udemezue; published On 07 July 2024.
(e). Re: “Court Of Appeal Nullifies Expulsion Of 25 Rivers State Lawmakers, Cites Lack Of Jurisdiction By High Court”’ By Sylvester Udemezue; published On 19 July 2024.
(f). “A Fair Summary Of The 04/July/2024 Judgement Of The Court Of Appeal In Martins Amaewhule V. Victor Oko-Jumbo (Appeal No: Ca/Ph/198/2024)” By Sylvester Udemezue; published On 08 July 2024.
(g). “Rivers State, Court Of Appeal and Status of the ‘Status Quo’ Order in Amaewhule v. Oko-Jumbo (2024) ” By Sylvester Udemezue; published On 14 July 2024.
(h). “The Rivers State Assembly Imɓroglio and Duty of Lawyers to Defend Rule of Law and Constitutional Democracy in Nigeria “ By Sylvester Udemezue; Published on 08 July 2024.
(i) . “The “I Am An Authentic Legal Luminary” Speech And Legal Issues Arising: How a Legal Giant Missed a Golden Opportunity To Render An All-Inclusive Legal Opinion On Burning Legal Questions Affecting His Rivers State (Part 1). By Sylvester Udemezue; Published on 21 October 2024.
Respectfully,
Sylvester Udemezue (Udems),
Proctor of The Reality Ministry of Law and Justice
08109024556.
(22/10/2024)
