Can Tambuwal Declare His Own Seat Vacant?

If, by some tragic stroke of misfortune, President Goodluck Jonathan, Vice-President Namadi Sambo and Senate President David Mark all died today, Aminu Tambuwal, Speaker of the Federal House of Representatives, would be sworn in as President of Nigeria. Yet, in response to his defection to the APC, Tambuwal’s security detail has been withdrawn.

 

The Inspector General of the Nigerian Police, in the attempt to justify his withdrawal of the security detail of the Speaker of the Federal House of Representatives, cited the following section of the constitution:

 

 

Section 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.

 

As far as the IG is concerned, it would seem that Aminu Tambuwal is not merely just no longer the Speaker – he isn’t even a legislator anymore. While former principal officers of the State still have state-provided security attached to them (and therefore cessation of office should not automatically mean withdrawal of security), the focus of this piece is the little constitutional crisis we have on our hands.

 

According to section 68(2), edited slightly for relevance, “the Speaker of the House of Representatives shall give effect to the provisions of 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 that member.”

 

Thus, Tambuwal is required to declare Tambuwal’s seat vacant, in the absence of evidence that there is a division in the PDP.

 

Since the events at the PDP’s convention last year led to several prominent members leaving the party for the APC, it has been the contention of the PDP that the legislative seats of those who crossed over to the APC be declared vacant, going by the provisions of Section 68(1)(g). According to them, as there is no division in the PDP, all legislative defectors must lose their seats. Should they?

 

The courts have not been very helpful with the interpretation of this section. In all the recent defection cases, even where splinter groups have held parallel congresses and elected their own officials, the courts have ruled that no division existed. They have however refused to describe what situation or circumstances they would see as constituting a division. And that remains the central issue.

 

However, even if there was a division in the PDP 12 months ago, there is also the question whether or not such division still exists. The dust has pretty much settled and everyone has gotten on with life in the new party. Or does the fact that the court’s final decision on the legislative defections so far mean that the “division” (if it is eventually ruled to exist) is a continuing one? We wait to see what the court will say.

 

To complicate matters for the PDP, who have asked Tambuwal to resign his office, the constitution is quite clear on how the Speaker may leave the office. Section 50(2) says –

 

The Speaker the House of Representatives shall vacate his office –

  1. if he ceases to be a member of the House of Representatives otherwise than by reason of a dissolution of the Senate or the House of Representatives; or

  2. when the House of which he was a member first sits after any dissolution of that House; or

  3. if he is removed from office by a resolution of the House of Representatives, by the votes of not less than two-thirds majority of the members of that House.

 

In other words, pending the final decision of the courts, Tambuwal has to declare Tambuwal’s seat vacant or the House has to impeach him, otherwise he remains in office. PDP does not have the required numbers to carry out the impeachment. Stalemate, for now.

 

Tambuwal ought to resign. It is the moral, honourable and statesmanlike thing to do. But he is not under any legal compulsion to do so. If he is as shrewd as is reputed however, he must have prepared for the very dirty fight ahead.

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2 thoughts on “Can Tambuwal Declare His Own Seat Vacant?

  1. Pingback: The inevitability of Tambuwal’s defection | The Kaleidoscope

  2. Looking at the combined provisions of S.251 (4) of the Constitution and that of S.2 of the Supreme Court (Additional Jurisdiction) Act, a seeming question arises as to the proper parties to institute an action in the situation above which ordinarily will lead to the bigger question of which court to have jurisdiction over the matter.

    The proper party in this matter, if settled to be the National Assembly, will have to institute an action in pursuance of S.2 of the Supreme Court (Additional Jurisdiction) Act. In the absence of that, any party other that will have to come by way of S.251(4) of the Constitution.

    I feel aware, that in the event where S.68(1) of the Constitution is not evoked by reasons of politics, the law has provided a leeway for any proper party with locus standi to come by way of S.251(4) of the Constitution to put right the seeming challenge posed by the situation by coming to the Federal High Court.

    So, I am hoping, that in the event where proper parties to the matter are settled to be persons other than the National Assembly and in the likelihood of S. 68(1) not being given full effect to as rightly suspected by the draftsmen, S.251(4) of the Constitution gives an opportunity to correct such wrong.

    In righting a wrong that Tambuwal seems to be riding on as couching his leaving the House as a moral responsibility, any party who can properly prove locus standi in the matter can successfully institute the matter of whether his seat is vacant or that is membership is ceased at the Federal High Court.

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