It is a trite law that a sitting Governor in Nigeria has the fundamental right to defect to any political party of his choice. For in the administration of former Ebonyi state Governor and now the Minister of Works Engineer David Umahi and his Deputy in office both were elected under the platform of Peoples Democratic Party-PDP but with hindsight of being part of the next national government in the 2023 Presidential election, Engr. David Umahi defected to All Progressives Congress APC and campaigned vigorously for the election of Asiwaju Bola Ahmed Tinubu which took place on 25th of February, 2023. The outcome of that Presidential election made David Umahi a star politician who defied the demands of his South eastern geopolitical region that presented a Presidential candidate Peter Obi who was a candidate of Labour Party. His PDP challenged his defection at Federal high Court Abuja which sat and delivered judgment against David Umahi and his Deputy Governor that both should relinquish their seats for having defected to another political party that never sponsored them into office and that voters voted for the political and not the individual candidate. The candidate’s pictures are not displayed but political party logos.
The legal tussle that resulted in the Appeal Court raised other legal issues over which Court has jurisdiction to entertain cases involving elected Executive such as Governor and Deputy Governor? Finally Court of Appeal came out with the determination that Federal High Court does not have jurisdiction to tried David Umahi and his Deputy as it is only a state High Court in accordance to Section 272(1) which stipulates ” subject of the provisions of Section 251 and other provisions of this constitution, the High court of a state shall have jurisdiction to hear and determine any proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an office committed by any person.”
So, in the case of Rivers state Governor Siminialayi Fubara whose Oga is being speculated to have wetted the ground for defection to the ruling National Political Party All Progressives Congress-APC as 26 members of the state House of Assembly had defected to All Progressives Congress-APC irrespective of the challenges to the Constitution of Federal republic of Nigeria Section 109(1)(g)
Whereas on the condition in which an Executive can be removed from office, it is observed that section 308 of the 1999 Constitution is silent over defection of the Executives being the President, Vice President, Governor and Deputy Governor. But section 68(1)(g) stipulates that “A member of the Senate or of the House of Representatives shall vacate his seat in the House 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 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.”
So, since the Rivers state Executive Governor Sir Siminialayi Fubara being an executive office holder is entitled to Fundamental Rights as enshrined in Section 40 of the 1999 Constitution that says “Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any other political party or any other association for protection of his interests. Thus, the Constitution by this conclusion allows a sitting Governor to defect and which makes political party defection not a crime.
Secondly, elected Executives such as President, Vice President, Governor and Deputy Governor have immunity in Section 308 of the 1999 Constitution which grants them a level of freedom to govern effectively. Again, section 308 protects the executives and to prohibit them from engaging in political party defection is totally a defeat of political freedom which is the chapter IV of the 1999 Constitution for each citizen and these persons are citizens of the Federal Republic of Nigeria.
So, Section 188 stipulates how the Executives will be removed from office and who has the power to remove them and which court will remove them by the determination of their terms of office and going by the provisions of the constitution there is nowhere a Federal High Court is mentioned to have jurisdiction to remove them.
It is the only state High Court that has power to determine the vacancy of the office of a governor, Deputy Governor, Senate or House of Representatives member in accordance with section 272(1).
So, Rivers State Governor Sir Siminialayi Fubara has the fundamental right to defect to any political party of his choice without vacating his seat as executive Governor.
