The Illegality of Cross Carpeting under the 1999 Constitution (As Amended)

Since the restoration of democratic structures in May 1999, there have been cases of serving legislators defecting to another party other than the party under whose umbrella they contested and won elections. This act is known as Cross Carpeting. In the Nigerian political space, it is popularly known as decamping or defection. The issue of the defection of serving legislators had become a stigma, an embarrassment, and a form of dishonour to parties that sponsor candidates to victory in an election. To reduce the rate of defection of serving legislators, the Nigerian Constitution was further amended to checkmate how serving legislators jump from one party to another, particularly after being elected into office under a particular party. Following the general elections held in February and March 2023, there have been cases of defection. Under review in this article are the cases of Senator Ifeanyi Ubah, representing Anambra South Senatorial Constituency, who crossed from the Young Progressives Party (YPP) to the All Progressives Party (APC), and recently, the case of 27 members of the Rivers State House of Assembly who moved from the Peoples’ Democratic Party (PDP) to the All Progressive Congress (APC). In Nigeria, cross-carriage had been a regular practice by serving legislators, governors, and even a vice president at some points. Despite the amendment to the Constitution, legislators still flout the express provision with reckless abandon, based primarily on the political advantage they get once they defect to another party.

The Constitution of Nigeria is very clear on the issue of serving legislators moving from one political party to another. Section 68(1)(g) of the Constitution provides, thus:

“(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;”

Section 109 of the Constitution provides,thus:

(1) A member of a House of Assembly shall vacate his seat in the House if:

g) Being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of any other 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;

It is the duty of a serving legislator who defected from one party to another to state or to show explicitly that there is serious division in the political party where he is decamping from, a merger of two or more political parties or a faction by which he was previously sponsored. Where the legislator fails to address these decisive constitutional issues, his defection to another political party is tantamount to vacating his seat.

Sections 68(2) and 109(2) of the Constitution provide, thus:

“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.”

“The Speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.”

The burden now is on the President of the Senate, the Speaker of the House of Representatives or any of the Speakers of the various houses of Assembly to ensure that a defector fulfills the constitutional requirement before defecting to another party. In the Nigerian context, the legislators under reference failed to provide any of the conditions stated in the Constitution as a ground for their defection to another political party. In the case of Senator Ifeanyi Ubah, in his letter to the Senate President, he stated, amongst others, that  “I am willing to formally notify and inform the Distinguished Senate President and our colleagues of irreconcilable differences between me and the leadership of my party… “I, therefore, resolved to move from the Young Progressive Party (YPP) to the most important party in Africa, the All Progressives Congress….

These grounds for moving from one political party to another by a serving legislator, as stated in his letter to the Senate President, fall short of the constitutional requirement for a change of political party. He failed woefully to show that there is serious division in the political party where he is decamping from, a merger of two or more political parties or a faction by which he was previously sponsored.

In the case of the Rivers State House of Assembly, there are so many controversies and power plays; there are factional speakers in the Rivers State House of Assembly, which makes the determining factor more difficult. However, the defecting members stated in their letter that their defection to the APC was a result of division in the PDP, without stating more. This, I must say, falls short of the requirements of the Constitution as provided for in Section 109(1)(g). The members failed woefully to provide that there is serious division in the political party where they are decamping from, a merger of two or more political parties or a faction by which they were previously sponsored.

If the factional speaker who did not defect to the PDP is the person recognized by law, then having declared the seats of the defectors vacant, that is the correct position of the law. This is without prejudice to the entire political brouhaha going on in the state and the leadership of the State House of Assembly. The position of the Constitution is that the entire seats of the 27 members of the Rivers House of Assembly who defected from the PDP to the APC are vacant by law, particularly as declared by the speaker of the house and INEC ought to act immediately in conducting an election to fill the empty seats.

This constitutional position of declaring the seat of a defector vacant was given live in the case of Hon. IFEDAYO ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY (2015), 8 NWLR 314, where the court held thus:

“…is to the effect that only such FACTIONALIZATION, FRAGMENTATION, SPLINTERING, or “DIVISION” that makes it impossible or impracticable for a political party to function as such will, by virtue of the proviso to Section 68(1)(g) of the 1999 Constitution, justify a person’s defection to another party and the retention of his seat for the unexpired term in the house in spite of the defection. The division must affect the entire structure of the political party at its centre, that is, the national leadership. Otherwise, as rightly held by the trial court and the Court of Appeal, in this case, the defector automatically loses his seat.”

Ordinarily, it is the duty of the President of the Senate, the Speaker of the House of Representatives, or any of the Speakers of the various 36 houses of assembly to declare the seats of such defectors vacant, and ordinarily, the Independent Electoral Commission ought to act immediately upon being notified by the Speaker by conducting a fresh election into the seat. However, it takes a lot of political will for such to happen in Nigeria, particularly when the defector is joining the speaker or Senate President in his political party. In some quarters, it was argued, though erroneously, that a court order is needed to determine the vacation of seats by the serving members of a legislative house. This is absolutely incorrect. Nowhere in the Constitution is it stated that an order of the court would be required to declare a seat vacant or to prove that the defector has fulfilled grounds for defection. This is nowhere found in the Constitution. Analysts and pundits should not read additional meanings into the clear provisions of the Constitution. The burden lies on the speaker or Senate President. The court only comes into play when an aggrieved political party goes to court by itself and in its name to seek an order of the court, mandating the Speaker or President of the Senate to declare the seat of the defector vacant as well as ordering the Independent Electoral Commission to conduct a fresh election. This is where the court comes in. Putting the court ahead of this would be delegating unconstitutional powers to the court. 

Analysts and pundits have further argued that there should be freedom of association, as guaranteed under Section 40 of the Nigerian Constitution. Yes, while I agree that no legislator in Nigeria should be forced to stay in a political party against his will, a legislator who has been elected on the platform of a political party cannot just wake up one day, due to political interest, political bias, the order of a godfather, or the future of his political interest, and decide to defect to another political party that did not sponsor his election, particularly without providing the grounds for the defection to another political party. The vote belongs to the party. It was the party logo and name that were on the ballot boxes, not the name of the contestant.

The seat of Senator Ifeanyi Ubah, ordinarily by law, ought to be declared vacant by the President of the Senate, and INEC ought to be mandated to act immediately in conducting an election to fill the empty seat, pursuant to Sections 68(1) and (2) of the Constitution of Nigeria but for political will and interest and particularly as the Senator is defecting to the party of the Senate President, he would not want to take actions detrimental to the interest of his party. The seats of the 27 members of the Rivers State House of Assembly who defected from the PDP to the APC remain vacant, having failed to fulfill the constitutional requirements allowing elected persons to cross into other parties. The legislators, in amending the Constitution, were also careless (whether deliberately or not) in limiting the provision of the Constitution to legislators. The provisions should have also included the President, his vice president, the governors, and their deputies, because all these are also elected on the platforms of political parties. Particular reference is made to the cases of former Governor David Umahi of Ebonyi State, Mattawalle of Zamfara State, and Ben Ayade of Cross Rivers State, who all defected from the PDP to the APC while serving as governors of their various states. Unfortunately, in their cases, the Court of Appeal, particularly in the case of Governor David Umahi, stated that the Constitution only referred to legislators and nothing more.

In conclusion, in the words of Honourable Justice Taiwo Taiwo (now retired), while delivering judgment in the case of the legislators in Cross Rivers State House of Assembly that defected from the PDP to the APC, he held that it was disheartening that politicians in the country treat citizens as if they do not matter once they get into office. According to him, we cannot continue in sin and expect grace to abound.

It is obvious that jumping from one political party to another, particularly for serving legislators, is in bad faith, having been sponsored by one political party. The courts have consistently held that the votes of one party cannot be transferred to another. Unfortunately, in Nigeria, politics and political interests have taken precedence over constitutional provisions. We can only hope to get it right in Nigeria.

This Article Was Written By: Akintayo Balogun, Esq., LL.B. (Hons), BL, LL.M., is a legal practitioner in private practice based in Abuja, FCT. A prolific writer, public affairs analyst, and commentator on national issues.