Section 68: How To Eat Your Cake and Have It

My policy on cake is pro-having it and pro-eating it – Boris Johnson, Mayor of London

Another day another constitutional ‘crisis’ brought about by a dubious section of the Nigerian constitution, which itself is a dubious document. Invariably, there are now two ‘strong’ interpretations to the section depending on which side of the political divide you stand on.

This has of course been triggered by the defection of the Speaker of the House of Representatives, Aminu Waziri Tambuwal from the PDP to the APC. The PDP contends that by virtue of the constitution, his seat has become vacant…or something like that. Tambuwal of course timed his defection to coincide with the House going on a 6 week recess, which suggests that perhaps, he knows he is standing on constitutionally shaky ground.

Here’s the offending section of the constitution:

Section 68(1): A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if –

(g) 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; 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.

God forbid I pretend to be a lawyer or constitutional expert and then make a fool of myself in trying to interpret the constitution. My concern here is more about how we make laws in Nigeria and how an avoidable mess is created.

Why is that (g) paragraph included in the section at all? Thinking through the matter – if someone is elected on the platform of one party and then defects to another party, we can consider it a joint effort. The person probably campaigned well and the people liked him/her over the alternatives. So it would be unfair to simply say the people should leave the office they have been elected to. I think this much is uncontroversial.

Therefore, the simple solution to the matter would be for that ‘joint effort’ to be renewed. The candidate resigns the office, a by-election is triggered and he/she can return to the office if the voters agree. I think this is fair and honourable. And I am certain that our lawmakers thought about this option when drafting that section of the constitution. The trouble is that Nigeria intervened.

Given that none of the lawmakers drafting that amendment are bound to their political parties by ideology or for that matter, honour, they must have known that in the short, medium or long term, this might come to affect them. Simply not greeting the governor of your state properly at a function might cause him to try to replace you at the party primaries, leaving you with ‘no choice’ but to defect to the nearest party. Or you might even be minding your business in Abuja and your state party will be split in two because of 2 competing egos, forcing you to make a choice. That is to say, to paraphrase the famous danfo dictum – nobody is above defection.

And so, what ought to be a straightforward constitutional clause – defect and trigger a by-election – becomes complicated. Our politicians are risk averse so no one wants to risk going back to the electorate to renew a mandate especially if you are defecting away from the PDP – facing their machinery can be a hopeless task in many states. This then leads to lawmakers adding all sorts of escape valves, hatches, clauses and backdoors in the constitution. This is why the (g) section is in that clause – to allow people eat their cake and have it.

Proving that there is division in a political party in Nigeria can be incredibly easy. Indeed, a politician who is planning to defect can ‘sponsor’ such a division in advance. It is no harder than holding a rival meeting in a different location on the same day that the main party is holding theirs. You will always have followers. Or you can sponsor thugs to ‘storm’ the venue of the main party’s meeting and break a few bottles or throw some charms here and there. The courts will never be able to agree on what ‘division’ is in this context – human behaviour is far more complex than what can be codified in a document in this manner.

And this brings me to the point of this post. This is one of the biggest threats to our democracy and guarantees that as a nation we will continue to jog on the spot for a long time. Eating your cake and having it is not a very useful policy when it comes to nation building. And this behaviour is rampant. Consider how the government passes laws to raise tax revenues and then proceeds to exempt its friends with all sorts of waivers and abuse of the ‘pioneer status’ as an example. In the end, such tax laws make a mockery of the whole enterprise to say nothing of the fact that badly needed revenue goes uncollected.

That our politicians have no moral spine or honourable bone in their body is not news. But there is more to the problem – the inability to suspend, even for five minutes, that selfish behaviour is not just frustrating but incredibly dangerous. You begin to get the picture when you look at all the exemptions in our laws and loopholes either through deliberate dubious wording or outright insidiousness. Political factions are a fact of life in practically any democracy in the world – In the UK, the Labour party still has its Blairites and Brownites while the Conservatives continue to be split into some form of Wets and Dries that has plagued the party since Mrs Thatcher’s days.

But to then start writing factions into the constitution as justification or excuses for one thing or the other…that is unpardonable. And from lawmakers whom we pay a fortune.

Bring back the guillotine.

FF

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10 thoughts on “Section 68: How To Eat Your Cake and Have It

  1. Fair points.

    One point of historical context is however mistaken here. The 1999 constitution (and its 1979 grandparent) was not drafted by the National Assembly or any elected legislature. I doubt it would matter though, Nigerian policians have a knack for boobytrapping any policy likely to affect them. That’s why the current amendments process is fraught with insipid proposals.

    1. Very true.
      Many of the drafters of the ’99 document ended up in the National Assembly.
      Especially as we didn’t have lawmakers at the time.
      In such situations, they do display remarkable vision and long term thinking

  2. Nice article. That section is rubbish. My only slight disagreement with you is that I don’t think a party election should trigger a bye-election. In my opinion, people largely elect the person, not the party. This is particularly so in our politics which is devoid of any distinctive ideology whatsoever among our so-called parties. No need wasting the people’s money on organizing bye-elections for this lot. People should be allowed to cross over and face the electorate when the time comes. If the people consider that “joint effort” worthy of renewal, they will do so, if not, the politician will not be re-elected. Winston Churchill “crossed the floor” from the Conservatives to Liberals in 1904 and then joined the conservatives again in 1924. In Britain, it’s at the time of the next general election when said member would face the electorate. More consequential was the US case of Jim Jeffords switching from the GOP to the Democrats which caused the dems to have the majority in 2000. It caused a political earthquake, but as we say “Nobody sha died” see here http://en.wikipedia.org/wiki/Jim_Jeffords#Departure_from_the_GOP

    Tambuwal’s case is unique in the sense that there are two issues involved : He has changed parties and he is the current Speaker of the House. Assuming that he is allowed to retain his seat in the House of Reps, to remove him as speaker would require 2/3rds of the House. This means that both PDP and APC votes must be involved, the latter is highly unlikely unless the man does the honourable thing and resigns the Speakership knowing that the spirit of the rules is for the Speaker to be backed by the majority of the House.

    Interestingly, the same thing (sorta) happened with John Boehner here in the US. Many conservatives wanted to remove him but apparently, removing a sitting speaker in the US is VERY tricky as well. See here http://www.breitbart.com/Big-Government/2012/12/21/House-Republican-members-circulate-plan-to-oust-Speaker

    1. When Douglas Carswell recently defected to Ukip from the Tories, he resigned and won a bigger majority.
      When Mark Reckless defected after him, he too then had to resign, triggering a bye election.

      Given how organic the constitution is here, I suspect that is how things will be from now.

      Trouble is you need people to have some sort of honour to do the thing which they are not legally compelled to do.

      And our politicians, even when things are clear cut…sigh

      By the way, removing a Speaker here is incredibly difficult as well. People only realised when the last Speaker was finally forced to resign when removing him was proving almost impossible
      The current Speaker is a clown but removing him is almost out of the question

      1. Heh, I like the Carswell example. Most apt since he was the anvil against the speakership of Michael Martin. I think I read that in 300 years, no speaker of the House in Parliament has ever been removed from office.

        The resignations of Carswell and Reckless were voluntary; and knowing politicians whose first duty is their political viability, they would not have resigned if they hadn’t gauged that they would likely win in a bye-election. Especially since their resignations were over the highly contentious issue of EU membership.

        In the UK and US, party defections are rare and usually based on core ideological tenets. In Nigeria, it is anywhere belle face. If bye-elections are held for every defection, we’ll be be having them every other month with this crew we have in Abuja.

        It is also interesting that (unless I’m mistaken), the constitution declares that a legislative seat is vacant if a member defects without a party division, but Governors keep their positions when they defect parties. Kwakwanso and Amaechi being recent examples.

  3. You are being unfair to Nigerian politicians by singling them out as selfish. I think most Nigerians and Nigerian institutions even generally try to game the system.

  4. I disagree with your view on Section 68 (g) of the 1999 Constitution. What amounts to a faction or division within a Political Party has been addressed by the Nigerian Courts in a number of cases and contrary to your position, it is not so easy to establish before a Court that a faction exists in a Political Party.

    In the case of Hon. Ifedayo Sunday Abegunde v. The Ondo State House of Assembly & ORS (2014) LPELR-23683, the Court of Appeal held that the mere fact that two individuals were laying claim to the Chairmanship of Ondo State Labour Party does not constitute a division of the Party or amount to a factionalization of Labour Party. This therefore means that going to disrupt a Party’s meeting and convening a rival meeting would not necessarily be classified as a division within a Political Party by the Courts. This position was also adopted by the Federal High Court in the case in respect of the N-PDP, where the Court held that there was no division in PDP notwithstanding the choreographed actions of the “members” of N-PDP in purporting to hold rival meetings.

    What constitutes a faction in a Political Party has been explained by the Court of Appeal in the case of Delta State House of Assembly & ANOR v. Democratic People’s Party & ORS (2014) LPELR-22808 where Ogunwumiju, JCA held thus:
    “It is my humble view that factions within the context of the Constitution means that there are groups within a larger group who are also still under the umbrella of the same organization. The division envisaged by S. 109 (1) (g) is when an organization has been dissolved into two parts each claiming independence from each other. Each division may call itself different names with different leaders. A division contemplates the breakdown of an erstwhile cohesive whole into two or more separate parts.”
    Please note that the provision of S. 109 (1) (g) referred to above is similar to the provision of S. 68 (1) (g) of the constitution.

    The implication of the foregoing is that it would be extremely difficult for any group of persons (including Tambuwal) to establish before of a Court that there has been a breakdown of PDP into two or more separate parts. This is because a breakdown of a Party goes beyond the mere announcement of the formation of a faction on the pages of newspaper or on Twitter. An example of what constitutes a genuine breakdown of a Political Party into two or more groups can be found in the case of FEDECO v. GONI (1983) NSCC 481, where the Supreme Court held that there was a breakdown of GNPP because the party splitted into 4 factions.

  5. Pingback: Section 68: How To Eat Your Cake and Have It – Y! Opinion

  6. Feyi:

    You try well well!

    While we wait for you to become the AGF or CJN, you should note that based on the CURRENT CONSTITUTION, which is the only one we have at the moment, Tambuwal cannot claim that “there is still a DIVISION in PDP as at October 2014” because those that were fighting the party already left and there is now calm in the party!

    So in essence, TambuWORM [as I have been calling him for months] is the ONLY ONE DIVIDED AGAINST THE PDP.

    The KOKO with “eating your cake and still having it” is that YOU HAVE TO DO SO TIMEOUSLY; you cannot eat your cake earlier this year [when others defected] and still want to have it in October [when there is no more division in the party]

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