Factions and Fictions by Rotimi Fawole @TexTheLaw

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The word “faction” has probably never had greater prominence, in Nigerian political history, since Western Nigeria’s political crisis in the 1960s. Its meaning, its existence and/or non-existence will be key factors in the impending political crinkum-crankum of 2014-15. APC’s current momentum, given added by impetus by the defection of all manner of PDP politicians into its fold, can be brought to a grinding halt if the courts uphold the PDP’s contention that defecting legislators should be stripped of their political office.

I have already suggested here, that the legislators’ seats ought to be safe. The premise of my argument was that the law permits defecting lawmakers to retain their seats if their original party is factionalised. There is a supporting judgement of the Supreme Court that states that the Electoral Commission’s refusal to register the faction will not lead to the removal from office of the defecting lawmaker.

However, the PDP insists that there is a subsisting judgement that says that there are no factions in the PDP. I dispute this, for the reasons stated hereafter, and ask anyone with a certified copy of that court ruling to please share it with us. The reasons that I do not believe that it was the dictum of the court that “there are no factions in the PDP” are as follows:

  1. The court’s ruling was not reported in any newspaper to be about whether a faction existed or not – it was about who the lawful leaders of the Party are/were. ThisDay reports that it was the splinter group that went to court to restrain Bamanga Tukur and the rest of his executive committee to stop parading themselves as the PDP executive. A further report, of a subsequent suit (as the initial one was struck out) can be found here; and
  2. It is customary for judges provide the rationale behind their decisions. Their decisions would be arbitrary, otherwise. Thus, if a court rules that there are no factions in a party, it must state the test or criteria it adopted or created in reaching this determination. No such criteria have been relied upon by the PDP members seeking to rely on the alleged judicial pronouncement that “there are no factions in the PDP”.

One must then ask when can it safely be said that factions exist within a political party? The question is important, as many commentators cite a precedent from last year where a state lawmaker that defected from Labour Party, in Ondo State, lost his seat.  The court upheld the contention that the lawmaker did not prove a division (or faction) within the Labour Party. It is also relevant that in reaching its decision, the court relied on the Supreme Court’s pronouncement in Amaechi v. INEC (2008), that –

“…if it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning, but at the end of the day it is the party that wins or loses an election.”

You may recall that this was the [curious] decision in which a person who did not participate in the gubernatorial elections (after being replaced on the ballot by his party) was declared the winner of the election and ordered to be installed as Governor, as it should have been him on the ballot and “at the end of the day, it is the party that wins or loses an election”.

We should probably note, first of all, that the constitution is superior to even judgements of the Supreme Court and, as such, the first consideration of any court should be whether or not a division exists within the party. Given the events that have taken place from the PDPs special convention until now, I think it is hard to suggest the party is united. A walkout was staged, a parallel executive was elected, the splinter party sought to operationalize a secretariat but was prevented from doing so with state apparatus (police and SSS), the splinter party sought registration at INEC which was declined, both the splinter party and the main party sought orders of court recognising them as the de jure party leaders, etc.

I am acutely aware that it is possible for future defectors to abuse the law, if all that is required to establish a faction (for the purpose of retaining an electoral seat) is staging a walkout and attempting to seize the party’s apparatus. However, this is more the reason why a mere declaration of the absence of factions is useless if we cannot tell, by the same ruling, when one exists. It should certainly not be that any group of individuals (no matter how small their number or insignificant their political clout) can claim “faction”, defect and retain their seats. However, with 6 governors, 1 former vice-president, a list of senators and representatives  (and even state and municipal legislators) that keeps growing, I would strongly suggest that denying the existence of a factionalisation of the PDP would be a fiction. What we need from the judiciary right now (and I’m not sure not only the SANs that will earn the JUMBO fees next year welcome the coming litigation) is further clarity on what constitutes a division within a political party.

Rotimi Fawole

Rotimi Fawole

Rotimi is a lawyer whose practice areas over the years have been largely within corporate/commercial and intellectual property law. He’s a music lover, plays the guitar and the piano and supports the Arsenal. His other musings can be found on texthelaw.wordpress.com and he tweets from the handle @texthelaw.


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