Justice Ademola Was Wrong—Legislators Serve at the Behest of the Electorates

Justice Ademola of the Abuja Federal High Court declared that the PDP legislators that defected to the opposition party have forfeited their seats in the Assembly.  The Justice interpreted Section 68 (1) (g) of the 1999 Constitution, as amended, to prohibit the legislators from conducting any further legislative businesses.  In his ruling, the Justice applied the Plain Meaning rule to conclude that the following warrants his conclusion:

“A member of the Senate or the House of Representatives shall vacate his seat in the House of which he is a member if –

‘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.’”

Section 68 (1) (g) of the 1999 Constitution, as amended.

On the surface, Justice Ademola is correct and limited in his opinion, and even more, when the supremacy clause of Section 1 of the 1999 Constitution is read in conjunction.  But that analysis is unhelpful in the face of a constitution that places party politics above the national politics.  Justice Ademola’s conclusion fails to advance societal interest in the face of a constitution that subjects the collective decision of a legislative constituency to the dictates of a political party, and it is dangerous.

Does Justice Ademola’s decision disenfranchise the electorates in the legislative constituencies represented by the affected legislators?  What happens when a legislator is kicked out of his party or refuses to caucus with his party?  What happens when a legislator decides to run for a subsequent election on the slate of another party?  What should be the appropriate role of the party in our democratic system?  What is the evil of carpet-crossing?  These are some of the political, but substantive questions that ought to trouble Justice Ademola before his decision.  And if they did, then a plain meaning analysis of Section 68 (1) (g) of the 1999 Constitution is inadequate.

The genesis of Section 68 (1) (g) of the 1999 Constitution comes from the 1951 Western Nigeria elections.  The Nigerian Council of Nigeria Citizens (NCNC) and Action Group (AG) had fiercely campaigned and contested the Western House of Assembly.  After the election, NCNC had alleged that AG introduced carpet-crossing of his delegates to the party to form the majority party in the House.  AG denied this allegation and maintained that the delegates stood for election under the AG.  There was no violence after the election as AG formed the ruling party in the Western House of Assembly.  It is worth noting that AG lost the local government election of 1953.  Carpet-crossing appeared harmless, and possibly, beneficial.

In a democracy, the will of the people is expressed through their representatives and not a party.  A legislator acts as a link between the Government and the people, and the success of a democracy depends among other factors on the role played by the legislators.  The legislature retains oversight, control and supervisory roles over the proper working of the Government.  It is of importance to note that Section 4 of the Constitution confers the legislative powers of the government on the National Assembly and not the various parties.

Justice Ademola could have employed a myriad of legal mumbo jumbo to do justice but, like Pontius Pilate, he abdicated the role.  A Federal judge has plenary room to roam on a case of first impression, such as was presented in this case.  Plain Meaning rule is elementary—it is often the beginning of statutory or constitutional analysis.  The Judge could have declared the clause ambiguous, and attempt to either excise it from the Constitution or give it a meaning that advances societal interest.  Or, could have looked to the “division in the political party” clause to conclude that such examination into political parties may thrust judges into the political arena, thus unworkable.  He could have sought an interpretation consistent with the history of the law.  Or, could have looked to Section 65(2)(b) of the same Constitution to conclude that independent candidates are not prohibited under the Constitution, as such, changing parties could not be against the spirit of the clause.  In short, Judge Ademola had many tools at his disposal to advance societal interest in a legislature and a legislator unencumbered by political parties and free to challenge the government of the day, but he failed.

In D.O. Fagunwa’s mythological story of Aditu Olodumare in the town of Ifehinti, Aditu was few seconds from having his head severed from his body as punishment for stealing a banana before his father showed up to plead his case.  The law of Ifehinti town was strict liability—intent or the mens rea is not a basis of defense.  Punishments were mostly death and carried out indiscriminately.  Even, the king was not exempted from punishment.  Should the king be sentenced to death, he is allowed to nominate four individuals in the town that would die with him, while titled chiefs could nominate one individual each that shall die with them, if they were to be convicted of stealing.  Also, an accomplice is guilty of the main crime and qualifies for the death penalty.

In Aditu’s case, the second-in-command to the king had given him the permission to cut the banana down from a tree that did not belong to him.  So, while Aditu was guilty of stealing, the second-in-command was guilty as an accomplice.  Aditu’s father requested that further investigation must be performed to determine the veracity of Aditu’s claim.  The second-in-command was identified, tried and sentenced to death.  As privilege of his office, the second-in-command chose the king as the individual to die with him.  The king, on the other hand, chose the next four titled chiefs in the town of Ifehinti to die with him.  Each of the next four chiefs of Ifehinti was entitled to an individual.  As it turned out, Ifehinti would have to eliminate all the chiefs in the town including the king—a constitutional crisis.

Laws are not always sacrosanct—when the law conflicts with nature or it is impractical, the law fails.  Georg Hegel, Thomas Aquinas, and others have written extensively on the notion of natural and supreme laws.   Sophocles’ Antigone chronicled the supremacy of the natural laws.  Even, Jesus Christ chided the Pharisees that questioned his disciples’ activities on Sabbath day.  (Matthew 12).

The 1999 Constitution was written under military rule and after many years of nondemocratic governance.  The drafters of the Constitution, well-meaning and wise, could only look to the American system of government as a model.  There was nothing in our history, manner of governance or way of life that was enough to serve as a model for these drafters of the 1999 Constitution.  In short, the Constitution was written upon a clean slate, devoid of the vagaries of human existence and a deeper understanding of whom we are as people.  To treat such a Constitution as an unbending, inviolable and supreme document of the nation is both misguided and arrogant.  Our courts must find a way to lead discussions on this Constitution in a manner to advance the Nigeria state.

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