On Monday, the 11th of December 2023, 27 River State House of Assembly members who were elected under the platform of the Peoples Democratic Party (PDP) defected to All Progressive Congress (APC) due to the leadership tussle between the immediate past governor and the current Federal Capital Territory minister, Mr Nyesom Wike and the state governor, Mr Siminalayi Fubara.
Whenever defections of this nature occur either at the state or the federal level, the constitutional cum political question it poses is what then happens to the defectors; will they lose their seats or will they retain their seats.
Section 109 (1) of the 1999 Constitution has literally covered this scenario as it provides in paragraph (g) thus; “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 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; ….”.
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By the implication of proviso in section 109(1)(g) it is clear that if there is a division in the party upon which the member came to the house in question, the person has the right to move to another political party but if there is no division and a member moves or defects to another party he or she stands to lose his seat. Therefore, Once you defect from the political party from which you won the election, to another political party before the expiration of the political tenure upon which you were elected, you automatically lose that seat.
By reason of the above Constitutional provision in section 109 and the plethora of court decisions in this matter, its clear interpretation by the Supreme Court, the 27 defected members of the Rivers State House of Assembly have vacated, lost their seats and ceases to be recognized as members of the Rivers State House of Assembly with immediate effect.
Just last year, The Federal High Court sitting in Abuja sacked the then Ebonyi State Governor, Mr David Umahi, his deputy, Mr Kelechi Igwe, and 15 members of the Ebonyi state House of Assembly over their defection from the People’s Democratic Party (PDP) to the All Progressives Congress (APC).
In sacking the governor and his deputy, the court held that the votes polled by a political party could not be transferred to or utilized for the benefit of another political party or member of another political party and once an elected politician defects from the political party under which he was elected, he stands to lose the seat he was elected for.
In 2014, the Supreme Court fully buttressed the constitutional provision of section 109(1)(g) in the case of Hon. Ifedayo Sunday Abegunde v. Ondo State House of Assembly (2014) LPELR 23683. The apex Court declared the appellant’s seat vacant after the appellant a member of the House of Representatives decamped from the Labour Party (LP) to the Action Congress of Nigeria (ACN) on the basis of fractionalization of the party at the State level; the court ruled that only a division that makes it impossible for a party to function can provide the basis for a legislator’s defection hence, the Appellant loses his seat.