Davidson Iriekpen
2 July 2009
analysis
Lagos — The Gusau Division of the Federal High Court recently fixed October 12, 2009 to deliver judgment in the case brought before it by the All Nigeria Peoples Party (ANPP) challenging the defection of Governor Mahmud Aliyu Shinkafi of Zamfara State and his Deputy, Alhaji Mukhtar Ahmad Anka to the Peoples Democratic Party (PDP). Presiding judge of the court, Justice Adamu Bello, after listening to submission from both counsels, fixed October 12 for judgment.
At the last sitting of the court, ANPP counsel Mohammed Sani Katu told the court that since both the governor and his deputy voluntarily resigned their membership of the ANPP after their election, they should honourably vacate the seats they were holding in trust for the ANPP on behalf of the people of the state. He said since the ANPP supporters in Zamfara State gave the governor and his deputy mandates under the banner of their party, the defendants had no locus standi holding on to their offices after changing their political parties. He urged the court to declare their actions as null and void, and to order for a fresh election in the state to enable voters choose which party they want to run the affairs of their state.
In his defence, lead counsel to Governor Shinkafi Alhaji Adoke Muhammed (SAN) said the decamping of Shinkafi and Anka from the ANPP to the PDP has not in any way affected their mandate. He said as citizens of this country, they are free to join any political party because they have freedom of association as enshrined in the constitution. He cited a Supreme Court ruling in the case between former Vice President Atiku Abubakar and the Federal Republic of Nigeria where the court held that Atiku's defection from the PDP to Action Congress (AC) was right and does not violate the constitution, which made the former Vice President to belong to a different party as well as retain his seat in a government formed by another party.
The ANPP had dragged Shinkafi and his deputy, Alhaji Muntari Anka to court for defecting from the party to the ruling Peoples Democratic Party (PDP). The party is asking the court to the hold that Shinkafi and Anka had through their resignation from the ANPP ceased automatically to be governor and deputy governor of the state. The suit, which also has the Independent National Electoral Commission (INEC)as a defendant, is also asking the court to determine whether by virtue of the provisions of sections 177(c) and 180 (1)(d) of the 1999 Constitution, a person who is a member of a registered political party was sponsored for the office of governor of a state which he won can validly, legally and constitutionally resign, defect or renounce the membership of such a party and cross over or become a member of another political party during his term of office.
The ANPP is also seeking other reliefs which include a declaration that Shinkafi and Anka cannot constitutionally transfer the electoral mandate given to the party that did not sponsor them for election. The party is therefore asking the court for an order directing the governor and his deputy to immediately submit to INEC the certificates of return issued to them
It would be recalled that Shinkafi who was elected governor in 2007 on the platform of the ANPP, defected to the ruling PDP with some of his supporters. The governor gave many reasons for his decision to decamp from the ANPP. Central among the reasons he gave was that key leaders of the ANPP lacked focus and were out to pursue their selfish agenda against the overall interest of other members as well as the development of the party.
Soon after the defection, the party's National Chairman, Chief Edwin Ume-Ezeoke, issued a threat to the governor asking him to resign from office with immediate effect or risked being sued. According to Ume-Ezeoke, "Our great party has concluded all necessary arrangements to fight this case to a conclusive end and our team of lawyers have commenced actions immediately. It will be most honourable for Governor Shinkafi to resign now as the governor of Zamfara State and if he so desire contest election under the PDP. We will definitely go to court to seek the nullification of Shinkafi's election. We are going to ask the court to declare that Shinkafi should vacate the seat for the ANPP. He cannot move to PDP without vacating the seat."
He added: "We are not suing the governor in his personal capacity; we are suing Zamfara State Government and the Attorney General of the state, so that we reclaim our mandate. The constitution is clear about the issue. No one seeks election unless is sponsored by a political party. In the case of Shinkafi, we gave him the platform and used our money to sponsor his campaign."
He said, "may I refresh the mind of Nigerians on the recent judgment of the learned justices of the Supreme Court in the case between former governor of Rivers State, Celestine Omehia and the present governor, Rotimi Amaechi where the justices made it clear that political mandates are not given to individual contestants but to the political party under which they contested. "That case is very instructive. Shinkafi cannot under any circumstance carry the mandate of our great party to another party. The mandate of governance for Zamfara State is a vehicle of service which the people of the state bequeathed to ANPP and the party handed over the key and driving seat to Shinkafi and if at any point in time he feels like leaving our great party, he should honourably surrender the responsibility for another party faithful."
Though there are indications that Shinkafi's defection was a move by the PDP to capture more ANPP governors in order to give the President a uniform playing field ahead of the 2011 elections especially as all the ANPP states are in the North, a move reminiscent of Obasanjo's capture of the South-west, the leadership crisis in the party is perhaps, not helping matters.
For instance, crisis in the party had persisted since when Don Etiebet as chairman decamped to the PDP. His successors, have also divided the party. Worst is the allegation that the incumbent national Chairman and the party's national secretary, Saidu Kumo are close to the government of Yar'Adua to the embarrassment of the party's presidential candidate, Major General Muhammadu Buhari.
Shinkafi's excuse for defecting was that the party had lost focus beyond redemption and was being manipulated by few individuals for their selfish interests. He said the development was worrisome to party faithful. He added that leaders in the party were not interested in repositioning the party but how to further tear the party apart.
According to him, "the leadership has displayed self-centredness at the expense of providing a purposeful leadership capable of playing the role of an opposition party in a democracy like ours. The current leadership more than ever before has exhibited wanton disregard for the party's constitution, its manifesto, due process and general feelings of the members of the party. Our party's leadership and indeed the state government have not been spared from this organised act of betrayal of trust. With all these problems and the out cry by concerned members, it is disheartening that the leadership has not done anything to rescue the party from the brink of collapse; instead they are engaged in trading with our mandate in the name of joining the Government of National Unity (GNU). They are more concerned with how to secure ministerial positions or their equivalents for themselves and for their families."
In view of the Supreme Court ruling in the case of Atiku Abubakar vs FG, which directly has a link with Shinkafi's defection, many analysts wonder if the Amaechi vs Omehia case which the ANPP National Chairman is relying on has any bearing with the case. While the Amaechi/Omehia case was an intra-party affair bordering on substitution of a candidate, the Shinkafi's case is basically on defecting from a party on which one was elected governor to another.
Perhaps, where Ume-Ezeoke referred was when Justice George Oguntade, while delivering the lead judgment said "...Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day it is the party that wins or loses an election."
But Justice Oguntade while explaining why the apex court did not annul the Rivers State election and order for a fresh election as against outrightly declaring Amaechi as governor, said the court decided not to set a dangerous precedence by ordering a fresh election in the state.
He said: "in this court, Omehia never argued that he took part in PDP primaries. He therefore did not manifest a desire for the office of Governor of Rivers State. Amaechi vied in the primaries for the office. He won overwhelmingly. His name was sent to INEC as PDP's candidate.
"There is no doubt that PDP having previously sent Amaechi's name to INEC by a letter on 26122006 could only validly remove the name or withdraw it if it complied with section 34 (2) of the Electoral Act 2006. When a political party later asks to substitute a candidate, it does so against the background of the results of the primary election. If there is a problem with the candidate who comes first, then the party will opt for the second and later the third in that order. There is no room for a candidate who never contested a primary election in such setting to emerge a party candidate."
Oguntade stated that political party candidature is not a chieftaincy title worn on any individual. Besides, the judge also said that... "What PDP did was merely a purported attempt to effect a change of candidates. Because it did not comply with the only method laid down by the law to effect the change, the consequence in law is that the said change was never effected. In the eyes of the law, Amaechi's name earlier sent to INEC was never removed or withdrawn."
Besides, what happened in Zamfara is not a new development in the polity. In neighbouring Sokoto and Kebbi states there were precedents. For instance, before the 2007 general elections both Governors Attahiru Bafarawa and Adamu Aliero decamped from the party that gave their governorship platform (ANPP). While Bafarawa went to the Democratic Peoples Party (DPP) on which platform he contested the 2007 presidential election, Aliero decamped to the PDP along with his commissioners and members of the state House of Assembly. As a condition for his decampment, former President Olusegun Obasanjo approved Aliero's request to have the ANPP flagbearer automatically become the PDP's candidate in the 2007 election. Today, Aliero is the Minister of the Federal Capital Territory (FCT).
Also, at the heat of the 2007 general elections, former Governors Bola Tinubu (Lagos State), Joshua Dariye (Plateau State), Orji Uzor Kalu (Abia State) and Boni Haruna (Adamawa State) all decamped from their initial parties which gave them two terms in office and still retained their positions until the end of the tenure. While Tinubu left the Alliance for Democracy (AD) to the Action Congress (AC) just like Dariye and Haruna who left PDP, Kalu went to his Peoples Progressive Alliance (PPA). In all of these cases mentioned, none was challenged in court.
Apart from the above example was the case of former Vice-President, Alhaji Atiku Abubakar whom former President Olusegun Obasanjo attempted to sack when he decamped from the PDP, a party on whose platform he won the VP seat for two terms, to the Action Congress at the heat of the 2007 presidential election should have give the ANPP national chairman an idea of what to expect.
Atiku had won the case both at the Appeal and Supreme Courts respectively. Specifically, the Supreme Court had ruled that as candidates for an election the president and vice-president think and swim together, adding that once they are elected, they could their separate ways.
Though any decision arrived at by the court on October 12, 2009 might not be final, as it has the potential of going to the Court of Appeal and ultimately the Supreme Court, for now, Nigerians are anxiously waiting for the landmark judgment which will no doubt further strengthen the country's fledgling democracy.
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