“To reduce the rampant spate of cross-carpeting, Section 68(1)(b) of the Constitution should be scrapped completely or be amended by requiring the legislator to obtain a court order recognising the division before dumping his party”.
By Afe Babalola
In continuation of my examination of incessant cross-carpeting by Nigerian politicians. I have identified the lack of political ideology and vision in the formulation of most political parties, I will this week suggest ways by which the phenomenon may be reduced; the most important of which is to make amendments to the provisions of the law relating to recall of elected officials who abandon their parties midstream into their terms.
THE WAY FORWARD IN NIGERIA
The first step that must be undertaken towards curbing the menace of incessant cross-carpeting by elected legislators is to amend the process of recall. A recall is the constitutional means by which the electorate can exercise some checks and balances on their elected representatives by signing a Petition for their vacation of their offices on the grounds that they no longer enjoy the support of confidence of the electorate that voted them into office in the first place. The provisions for recall of legislators can primarily be found in section 69 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). It is however clear that those provisions must be read together with the provisions of section 68(1)(h) of the same Constitution. Both provisions read as follows.
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; or
(h) the President of the Senate or, as the case may be, the Speaker of the House of Representatives receives a certificate under the hand of the Chairman of the Independent National Electoral Commission stating that the provisions of section 69 of this Constitution have been complied with in respect of the recall of that member.
(2) The President of the Senate or the Speaker of the House of Representatives, as the case may be, shall give effect to the provisions of subsection (1) of this section, so however that the President of the Senate or the Speaker of the House of Representatives or a member shall first present evidence satisfactory to the House concerned that any of the provisions of that subsection has become applicable in respect of that member.
- A member of the Senate or of the House Representatives may be recalled as such a member if –
(a) there is presented to the Chairman of the Independent National Electoral Commission a petition in that behalf signed by more than one-half of the persons registered to vote in that member’s constituency alleging their loss of confidence in that member; and
(b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency.
To give effect to the above provisions, INEC itself has its own guidelines just as it does for normal elections. The Constitutional provisions and the INEC guidelines have been described by Clifford Ndujihe as involving 10 steps stated to be as follows:
- More than half of the registered voters in the Senator’s senatorial district write, sign and send a petition to the Chairman of the Independent National Electoral Commission, INEC alleging their loss of confidence in the senatorial.
- The petition must be signed, and arranged according to polling units, wards, Local Government Areas, and constituency.
- INEC notifies the Senator sought to be recalled, stating that it has received a petition for his or her recall, if the petition is valid.
- INEC issues a public notice or announcement stating the date, time and location of the verification of signatures to the petition.
- INEC verifies the signatures to the petition at the designation. The signatories must be individuals who appear on the voters’ register.
- INEC conducts a referendum if more than one half (50% + 1) of the signatories are verified.
- INEC writes to the petitioners stating that the minimum requirements for a referendum were not met, if the number verified is less than one half of the registered voters in that constituency. The petition will therefore be dismissed.
- INEC conducts a referendum within 90 days of receipt of the petition if the minimum requirements for a referendum are met. The referendum will be a simple yes or no vote on whether the Senator should be recalled, and will be decided by simple majority of the votes of the persons registered to vote in that Senator’s constituency.
- If majority of the voters in the constituency vote ‘yes’ the Chairman of the INEC will send a Certificate of Recall to the Senate President to effect the recall.
- The Senate President will show affected senator the way out of the Senate.
As simple as the above provisions and steps may appear to be, the fact remains that no member of the legislature has ever lost his seat on account of defection or cross-carpeting from one party to the other. This is due to a lot of reasons such as the penchant of affected legislators to rush to Court to stall the process as well as the availability of an escape route in the proviso to Section 68(1)(g) which permits defection “where there is a division in the political party of which the legislator was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored”. Many legislators have hidden under this proviso to cross carpet from one political party to the other when in reality there exists no factual basis for a resort to the proviso.
Constitutional provisions of recall
Also glaring is the fact that the Constitutional provisions of recall relate only to elected members of the legislature. There is no corresponding procedure to deal with members of the Executive. Thus, Presidents, Vice Presidents, Governors, Deputy Governors and other members of the Executive arm of government may be free to dump their political parties upon which they were elected at will, without risking the sanction of recall by the electorate that voted them into office. This sad reality was brought home by the case of the former Vice President Atiku Abubakar who dumped the Peoples Democratic Party upon which he was jointly elected as Vice President with the then President Olusegun Obasanjo, for the Action Congress. When the mater got to the Supreme Court, after his office had been declared vacant by the Presidency, the Court while agreeing with me that the conduct of the Vice President was immoral and unconscionable, found that the law as it stood, and as it still stands, could not be called in aid. The Court in the matter reported as A.G Federation v Atiku Abubakar (2007) 4SC, PT.11, p.62 specifically stated as follows:
“Although defection or cross-carpeting to another party or dumping the original party that sponsored one for election to a particular office which is created by the Constitution; or in the same vein, condemning or criticizing that party or its members who by virtue of the same election hold some offices created by the Constitution, is painful, unconscionable and immoral; it is however not illegal.”
It is therefore clear that to properly prevent or reduce the rampant spate of cross carpeting amongst political office holders, the law must change to reflect the following at the very least:
- The proviso in Section 68(1)(h) must give way or be amended in such a way that it would leave it less prone to abuse by politicians. Requiring that a lawmaker who intends to rely upon it should first obtain a court order recognising the division in his party might not be out of place.
- The provisions of section 68 and 69 should be amended to extend to all persons elected into public office on the platform of political parties.
Next week I will address the need to make public office less materially attractive so as to reduce the occurrence of cross-carpetting.