RenownedConstitutional Lawyer and Counsel to Senator Kabiru Marafa of APC who won the case at the Court of Appeal and Supreme Court for Marafa’s faction of the APC that enthroned Bello Matawalle as Governor of Zamfara State in 2019, has also been engaged by the APC and Governor Bello Matawalle to defend the Governor in the PDP’s legal onslaught led by Chief Kanu Agabi, SAN, and Emmanuel Ukala, SAN, against the Governor’s defection from PDP to APC on June 29, 2021.
It was gathered that Chief Ozekhome will be be leading a crack team of seasoned Senior Advocates that include Ahmed Raji, SAN, Y.C. Maikyau, SAN, Emeka Okpoko, SAN, and others, to challenge PDP’s contention that Governor Matawalle has lost his seat by his act of defecting from the PDP to the APC.
It is believed that the lawyers have since got cracking, contending that Matawalle’s defection may only be criticised on moral grounds, but certainly not on legal or constitutional grounds, since a Governor, once elected, becomes a Governor of his State and not of his political party.
APC is also wondering why the PDP which benefitted from the defection of Aminu Tambuwal of Sokoto State and Godwin Obaseki of Edo State from APC to PDP, did not see anything wrong with such defections. It also wonders why the PDP which did not challenge the earlier defections of Governor Dave Umahi of Ebonyi State and Ben Ayade of Cross River State is suddenly waking up from its deep slumber to isolate Governor Matawalle’s defection for litigation, wondering why they did nothing to stop Matawalle from defecting after his known grievance over the last one year.
Legal pundits state categorically that the PDP suit is dead on arrival for many reasons. First, it does not have any reasonable cause of action because the suit was prematurely filed on 17th June, 2021, as Matawalle who finally defected 12 days later on 29th June, 2021, was still firmly in the PDP at that time.
Second, some senior lawyers who were contacted emphasised that Governor Matawalle is fully protected by section 308 of the 1999 Constitution which grants him constitutional immunity from being sued in any civil or criminal proceeding. A similar case as this had come up in the case of EJURA V. IDRIS & ORS (2006) LPELR-5827, and the Court of Appeal held that a Governor once elected can only be removed by an election petition tribunal and not a regular court such as the Federal High Court. The court also held that the provisions of the Electoral Act can only operate to remove an elected Governor if the provisions are invoked before an election tribunal. The Court of Appeal therefore held that the trial Judge was right to have declined jurisdiction to remove Governor Idris by an Originating Summons filed before the Federal High Court (as in this case), since the Governor was absolutely protected by immunity in section 308 of the Constitution.
The legal experts also argue that the Supreme Court decision that enthroned Governor Matawalle into office was a pre-election matter between two factions of the APC (not PDP), and that the time to have challenged Governor Matawalle expired over two years ago. More significantly, section 180 of the Constitution provides the only situations in which a validly elected Governor can cease to hold office; not by removal through an Originating Summons filed before a Federal High Court. Section 180(1) states:
“… a person shall hold the office of Governor of a State until:
(a) When his successor in office takes the oath of that office; or
(b) he dies whilst holding such office; or
(c) the date when his resignation from office takes effect; or
(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution [i.e. section 188].”
None of the above provisions apply to Matawalle, they argued.
The legal experts point out the contradiction in the PDP case in suing both Governor Matawalle and his Deputy, Mahdi Aliyu Gusau, believing wrongly that Gusau can take over Matawalle’s position as Governor of Zamfara State having not defected with him to the APC. They point out that the Deputy Governor does not come under section 181(1) of the Constitution and so can never be Governor by upstaging Matawalle. The said section 181(1) provides that:
“(1) If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.”
Matawalle did not die before subscribing to his oath of office and allegiance. He was duly sworn in and has been Governor of Zamfara State since May, 2019. The above position was also the decision by the Supreme Court in OBI V INEC (2007) LPELR-24347(SC). The pundits also argue that section 177(c) and 187(2) merely deal with qualification to contest the office of Governorship of a State, a hurdle Matawalle crossed since February, 2019.
There is currently no governorship election; nor is Matawalle seeking nomination for any election, or canvassing for votes. Therefore, section 221 of the Constitution which merely enjoins political parties to canvass for votes is also not applicable, because once a person is voted for, he becomes Governor of a State, and is not tied to the apron strings of his political party through which he rose to office. He can always rely on his rights to freedom of Association and Assembly in section 40 of the Constitution to defect from his political party to another.
Such a Governor is not encumbered by the provisions of section 68(1)(g) and 109(1)(g) which restrict movement of members of NASS and State Houses of Assembly feom their political party to another if they cannot prove that the original political party on whose platform they were elected has been bedevilled by intractable division.
It is further canvassed by the legal pundits that the entire suit against Matawalle falls within the realm of a political question which is not justiciable or actionable in a court of law. That until the Constitution and the Electoral Act specifically debars a Governor from defecting, no Governor who has defected can thereby lose his seat, or have his seat occupied by his Deputy Governor.
Such postulations are legally untenable, they argued. No constitutional or Electoral Act provisions state that a Governor must continue to remain in office under the same party on whose platform he contested and won an election, so as to sustain his Governorship position. The days ahead will definitely show some interesting legal fireworks.