by By Washington Osa Osifo, Ph.D
1.1 Introduction
On the 11th of June 2021, Governor Bello Muhammad Matawalle of Zamfara State defected from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC) leaving behind his Deputy-Governor in the PDP. Since then, all hell has been let loose in the PDP who have insisted that by reason of his defection, the Governor should vacate his office and that the Deputy-Governor should take his place. This demand they have backed by a court action to enforce same. However, what is worrisome is the press release by the Publicity Secretary of the PDP-Kola Ologodiyan, calling on the said Deputy-Governor to forcefully take over the said seat of the Governor of the State. In the press release, he berated the Nigerian Police for resisting the violent and forceful attempt by the said Deputy-Governor to take over the seat. Whilst, these actions of the said Deputy –Governor and his counselor –Kola Ologbodiyan borders on the offences of treason and shall be dealt with later, it is proposed in this segment of this paper to interrogate the legality and constitutionality of the claim by the PDP that Governor Matawalle should vacate his office by reason of his defection from the PDP to the APC.
1.2 Constitutional Provisions on the Removal of a Governor of a State from Office
Whatever legal claim that the PDP might have over the seat of the Governor of Zamfara state can and should be domiciled in the four corners of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and not the whims and caprices of the party or the ipse dixit of its Publicity Secretary. More specifically, it must be asserted that the call by the PDP for Governor Matawalle to vacate his office or their assumption that his office has become “vacant” must be circumscribed within the confines of the provisions of the Constitution on the conditions or reasons for the removal of a Governor of a State and not any other irrelevant or extraneous materials. Therefore, it may be asked, what are the circumstances wherein a Governor of a State can be deemed to have vacated his office or he can be compelled to vacate his office?
Section 180(1) of the Constitution encapsulates the circumstances in which a Governor may vacate his office as follows:
(i) When his successor in office takes his oath of that office or,
(ii) He dies whilst holding such office or,
(iii) The date when his resignation from office takes effect or,
(iv) He otherwise ceases to hold office in accordance with the provisions of the Constitution.
In addition, section 180 (2) provides as follows:
“subject to the provisions of sub-section (1) of this section, the Governor shall vacate his office at the expiration of period of four years commencing from the date when :
(a) In the case of a person first elected as Governor under this Constitution, he took the Oath of allegiance and oath of office
(b) The person last elected to that office took the Oath of allegiance and oath of office or would, but for his death, have taken such oaths.
Clearly, these are specific instances cognizable under the Constitution for the vacation of office by a Governor upon the happening/occurrence of these events. However, with regards to what can be classified as a “compulsory” removal of a Governor from office, section 180(1) (d) opens a vista for other provisions of the Constitution that provide for the removal of a Governor from office. Accordingly, it is on this basis that section 188 of the Constitution dealing with his impeachment and removal from office on the basis of a proven gross misconduct in office committed by him. Similarly, section 189 of the Constitution dealing with the removal of the Governor by the State Executive Council on the grounds of his physical or mental infirmity.
Accordingly, since by the combined effect of sections 180, 188 and 189 of the Constitution, the circumstances in which a Governor of a State can vacate his office or be removed from office are expressly and copiously stated, I submit that it is impossible and legally wrong for anyone to “import” into the Constitution any other condition or circumstance for his removal outside those expressly stated in these sections. Thus, the express mention of these identified circumstances in the Constitution means the express exclusion of any other one not so expressly mentioned-(expressio unius est exclusion alerius). This principle has been re-stated in the following cases.
See Attorney-General of the Federation v Atiku Abubakar (2007) 10 NWLR (PT. 1041) 1, where the Supreme Court per Sylvester Onu, JSC in applying this rule of construction held as follows:
“Furthermore, I agree with the respondent that any interpretation of section 146 (3) (c) of the Constitution to bring in areas not mentioned in the Constitution is dangerous invitation to the court to make law rather than interpret it…”
Furthermore, the provisions of these sections are plain and unambiguous and therefore ought to be given their ordinary meaning that accords with the legislative intent or the purpose for the enactment of these provisions. Therefore, adopting the literal but purposive rule of construction, there is nowhere in these provisions that anything extraneous or in addition to the specific conditions/ circumstances in which a Governor can vacate his office or be removed from office can reasonably, logically or legally be imputed. The Courts have in a plethora of cases insisted that the purposive rule of construction is best adopted when interpreting the provisions of the Constitution.
See Attorney-General of Bendel State v A.G of the Federation & Ors (1980) 10 SC 1 at 77-79, Nafiu Rabiu v A.G of Kano State (1980) 8-11 SC 130 at 148,Governor of Ekiti State v Prince Olubunmo (2017)3 NWLR (PT.1551) 148, Attorney-General of Lagos State v A.G of the Federation & Ors (2004) 18 NWLR (PT.904) 1
Interestingly, the fact that a Governor, Deputy-Governor or even the President or the Vice-President can only be removed from office in accordance with these specific provisions of the Constitution and nothing more, was firmly settled by the Supreme Court in the celebrated case of Attorney-General of the Federation v Atiku Abubakar (2007) 10 NWLR (PT. 1041) 1,
Here, the then Vice-President of Nigeria, Atiku Abubakar had a running battle with the President-Chief Olusegun Obasanjo. In a bid to fulfill his ambition of contesting into the office of the President and succeeding his boss, Atiku decamped to then Action Congress (AC), a move which precipitated the then President to convoke an Executive Council Meeting, whereat, the office of Atiku Abubakar as the Vice-President of Nigeria was declared vacant. In his suit challenging his purported removal from office, the Supreme Court held firmly that the Vice-President of Nigeria can only be removed from office under the circumstances provided by sections 143-144 of the 1999 Constitution (the extant Constitution). In summing up the position of the Court Walter Onoghen JSC in his concurring judgment held inter alia:
“There is nowhere in the 1999 Constitution that it is stated that the President or Vice-President of the Federal Republic of Nigeria shall be removed or is removeable from that office if he defects from the political party on whose platform he was elected to that office and joins another political party. It is the constitutional responsibility of the Legislature to make or amend the laws including the Constitution, where the need arises , while that of the Judiciary remains to interpret and apply the laws so made or amended. The courts can therefore not add or subtract from the law as enacted by the legislature under the guise of judicial interpretation of the constitution or statute………..”
I submit that this decision applies mutatis mutandis to the facts and circumstances of the defection of Governor Matawalle of Zamfara State from the PDP to the APC. So long, as there are no similar provisions for the declaration of the office of a Governor of a State vacant on account of his defection from the party that elected him to another as it is in sections 68 (1) (g) of the Constitution with regards to members of the State House of Assembly, it is not possible to insist that he (Governor Matawalle) must vacate his office as Governor. The PDP cannot read into the specific provisions of the Constitution what is not contained. We submit that the decision in A.G of the Federation v Atiku Abubakar (supra) remains the extant law, it has not been reviewed or whittled down by any other decision of the apex Court and therefore it remains an immutable binding precedent. Governors elected on the platform of the APC had in the time past decamped to the PDP, notably Governors Ortom of Benue State, Governor Tambuwal of Sokoto State and recently Governor Obaseki of Edo State, the APC did not cry wolf or try to reinvent the law as the PDP is trying to do now.
1.3 The Effect of the Supreme Court Decision Handing over the Governorship Seat of Zamfara State to the PDP.
The PDP and some of their apologists whilst trying to avoid the full impact of the binding precedent of A.G. of the Federation v Atiku Abubakar (supra), have tried to argue that because the Supreme Court in its decision on the APC pre-election dispute in Zamfara state, specifically ‘donated “ the office of the Governor of the State to the PDP, then Governor Matawalle has no legal or constitutional basis to take the “office” to another political party, APC. They strengthen this arguement by reference to decision of the Court that APC had no candidate in the 2019 general elections in the state. Therefore, they believe that APC cannot benefit from the Governor’s defection. Before I delve into the legal and constitutional flawness of this argument, I want to place it on record and in the right perspective that on a true construction of sections 180, 188 and 189 of the Constitution as discussed above, Governor Matawalle could even have defected to a political party that was not in existence as at 2019 general elections and he would still have retained his office as Governor of the State. This is because the pre-election dispute resolved by the apex Court as the name suggests related only to the “election” of the Governor of the State and not his “tenure in office.”
I therefore submit that the decision in that case is limited to the issue of who and who was validly elected as the Governor of the State. What that person decides to do thereafter with the mandate given to him by the Court is outside the purview of that judgment. I submit that all that the said pre-election decision resolved was whether as between the PDP and the APC who was entitled to produce the Governor of Zamfara State. Although, the suit in question was an intra-party dispute and the PDP was not a party thereto, it only benefited because the Court “disqualified” the candidate of the APC on the basis that they were not validly nominated by the APC. The grounds upon which the PDP benefited was section 177 (c) of the Constitution that made the sponsorship of a candidate by a political party a pre-condition to the election of a person as the Governor of a State. Thus, with the holding that APC had no validly nominated candidate in the said election, PDP and its then candidate, Matawalle benefited from the principle of “wasted votes”, so the question then is how does that translates to a re-writing of the tenure of a Governor of a State and/or the circumstances in which he can be removed from office?
I submit quite humbly that the position of Gov.Matawalle is not different from that of Governors Ortom of Benue State, Tambuwal of Sokoto State and Obaseki of Edo State that defected from APC to PDP or that of Governors Elechi of Ebonyi State or Ayade of Cross Rivers State that defected from PDP to APC.
Like Matawalle these Governors were elected on the platform of their respective political parties before they defected to rival political parties, the fact that these other group of Governors won their election at the polls and survived post-election litigations does not make them different from Matawalle who though “lost” at the polls, got into the office by virtue of the decision in the pre-election suit. By the tenor of the said pre-election judgment, Governor Matawalle, having participated in the 2019 Governorship election of Zamfara State in 2019 and having come 2nd behind the APC candidate, he was adjudged the winner of the said election, when the votes garnered by the said APC candidate was “voided” by the Supreme Court.
Thus, just like the other Governors listed above, Governor Matawalle contested and won election under the PDP but has now defected to the APC another political party. Therefore, the immutable and binding precedent of A.G of the Federation v Atiku Abubakar (supra) is applicable here. The attempt to distinguish the Zamfara incident from this locus classicus is in our view, a non-starter.
1.4 The Treasonable Conduct of the Publicity Secretary of the P.D.P.
One other issue that is deserving of consideration is the treasonable conduct (in our view) of the Publicity Secretary of the P.D.P –Mr.Kola Ologbodiyan. In his press conference on Tuesday 13th of June 2021, he called on the Deputy Governor of Zamfara State to take over the seat of the Governor of the State, he equally berated the Police and other security agencies that forestalled the initial attempt by the said Deputy-Governor to forcefully and violently assume the office of the Governor of the State.
This is in spite of the fact that there is no incident or record of the Governor resigning from office, neither had he been removed pursuant to the provisions of sections 180, 188 and 189 of the Constitution as discussed above. What is more worrisome is the fact that the P.D.P as a political party has filed a suit before the Court seeking an order directing the Governor to vacate his office on account of his defection to the A.P.C.
Certainly, this call by Mr.Ologbodiyan apart from being an abuse of the Court process, it is equally contemptuous of the Court and most importantly treasonable. This is because sections 190 (1) & (2) and 191 (1) of the Constitution clearly spell out the specific circumstances in which a Deputy-Governor can assume the office and powers of a Governor of a State. Section 190(1) &(2) deal with the Governor transmitting power to the Deputy –Governor if he (Governor) is to be away from the State on vacation or where he fails to transmit power, the State House of Assembly can by a resolution empower the Deputy to so act. On the other hand section 191 (1) deals with situations where the office of the Governor becomes vacant by reason of the occurrence of any of the incidents encapsulated in sections 188 and 189 of the Constitution. Clearly, there is no provision in the Constitution permitting the Deputy Governor of Zamfara State to take over or attempt to take over the seat of the Governor of the State without a valid and subsisting Court order.
I therefore submit that the action of Mr. Ologbodiyan is treasonable to the extent that he has counseled and procured the Deputy Governor of the State to attempt to seize the reins of governance from the Governor, in a manner not cognizable or contemplated by the Constitution. This is clearly in violation of section 1(2) of the Constitution, which provides as follows:
“The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution”
Admittedly, this sets the tone for proceeding against Mr.Kola Ologbodiyan for his attempt to aid and abet treason in Zamfara State. Section 37 of the Criminal Code provides for the offence of treason as follows:
“Any person who levies war against the State, in order to intimidate or overawe the President or Governor of a State, is guilty of treason and is liable to the punishment of death”
Additionally, sub-section 2 thereof provides as follows:
“Any person conspiring with any person, either within or outside Nigeria to levy war against the State with intent to cause such levying of war as would be treason if committed by a citizen of Nigeria, is guilty of treason and is liable to the punishment of death”
Clearly, it is assumed that Mr.Ologbodiyan may have glossed over the grave implications of his outburst vide his press conference aforesaid, he is accordingly advised.
1.5 Conclusion
There is no doubt that the fillibusting by the P.D.P over a “sacred” mandate handed to them by the Supreme Court in the pre-election matter is grossly misplaced and it is a product of their misunderstanding of the clear and unambiguous provisions of the extant Constitution on the issue. Their attempt to heat up the polity in Zamfara State, a State already bedeviled with the menace of armed bandits and other criminal elements, is much unfortunate. Having initiated legal proceedings to compel Governor Matawalle to vacate his office as Governor of the State, they are equally advised to concentrate its efforts on the suit and await its final resolution by the Courts, instead of resorting to self-help.
Clearly, the utterances of Kola Ologbodiyan, its Publicity Secretary and the actions of the Deputy Governor of the State are avoidable in the interest of peace and tranquility in the State.
Hon. Washington Osa Osifo, Ph.D writes from Benin City.
