In a country with a robust appetite for political litigation, we may witness a spate of litigations, but the legal issues involved in last week's 'merger' have a lot of clarity, writes Chijioke Emeka

The "merger" last week of the some elements of the 'New PDP', a splinter group of the Peoples Democratic Party (PDP) with the All Progressives Congress (APC) will predictably raise both political and legal dust for some time to come.
The Abubakar Kawu Baraje-led 'New PDP' announced that the splinter group of the PDP had merged with the APC. A communiqué issued by both sides, stated thus: "a meeting of the leadership of All Progressives Congress, APC, and the new PDP met this morning … in Abuja and after exhaustive deliberations the two parties agreed to merge in order to rescue our fledgling democracy and the nation."

With this development, four PDP Governors, Rabiu Kwankwaso (Kano), Murtala Nyako (Adamawa), Abdulfatah Ahmed (Kwara) and Rotimi Amaechi (Rivers) shifted camp to the APC. This swelled the number of APC-controlled States to 16 against PDP's 18. Had Kano, Sokoto and Niger State governors, Sule Lamido, Aliyu Wamakko and Babangida Aliyu who are allies of the four defected governors not declined, APC would have by now been in control of more States than the ruling PDP.

The group which became known as 'New PDP' berthed on Nigeria's political harbour when some governors (who became known as 'G7 Governors' staged a walk-out during the PDP's convention on August 31, 2013 at the Eagle Square Abuja stunning political pundits. They include Babangida Aliyu (Niger), Rabiu Kwankwaso (Kano), Sule Lamido (Jigawa), Aliyu Wamakko (Sokoto), Murtala Nyako (Adamawa), Abdulfatah Ahmed (Kwara) and Rotimi Amaechi (Rivers).

Citing high-handedness against the Bamanga Tukur leadership of the PDP and alleged "dictatorial" manner in which the affairs of party is conducted, the aggrieved members stormed out of the convention. They later showed up at Musa Yar'Adua Centre, where they formally issued a statement cataloguing a litany of woes. They then announced the birth of the 'New PDP' under the leadership of Baraje.

Since then, there has been name-calling, threats of suspension and expulsion, outright blackmail and even negotiations. The PDP leadership also apparently used the apparatus of power to ensure that the 'New PDP' offices do not spring up across the country, starting from their national headquarters in Abuja.

When Rivers State Governor Amaechi cried out that the police barred him from accessing his residence with certain guests, the official response indicated that there was apprehension that the convoy was going to enable "unauthorised persons" access the Rivers State office of the 'New PDP'. Such was the level of anxiety the splinter group generated. Also the much hyped negotiation meetings with President Goodluck Jonathan apparently failed to yield positive results.

There is a legal issue in the choice of the word 'merger'. The word is capable of two usages. There is the political sense, in which it simply means an informal 'fusion' of two groups for the purpose of synergy. There is also the legal sense in which it means the formal 'collapsing' of two or more political parties into one political party. The latter is a serious legal issue. The procedure involves the Independent National Electoral Commission (INEC) and is regulated by Section 84 of the Electoral Act.

The APC is a product of a recently consummated merger of the Congress for Progressive Change (CPC), All Nigerian Peoples Party (ANPP) and Action Congress of Nigeria (ACN). This was not a creation of a communiqué of a careful procedure supervised by INEC. It is therefore compelling to conclude that the word 'merger' was used in the first sense. It appears to be merely a political usage bereft of any legal import.

It seems that by Section 84(1) of the Electoral Act, there could possibly be no merger, legally so-called, unless the 'New PDP' was a registered political party. There would have been a formal request to merge presented to INEC. Also by the tenor of Section 84(2), notices of intention to merge would have been served on INEC. Section 84(3) spells out the procedure including special resolutions at national conventions of the merging political parties. Is the 'New PDP' a political party with legal capacity to merge?

Section 229 of the Constitution of the Federal Republic of Nigeria defines a 'political party' in terms of its capacity to sponsor candidates at elections. Section 78 of the Electoral Act, gives INEC power to register a political party in order to be so called. Basically, a political party is an association whose name, names and addresses of its national officers, a copy of its constitution, and its symbol or logo are registered with INEC. See Section 222 CFRN 1999. Note also that Sections 223, 224, 225 and 226 of the Constitution contain other legal elements of a political party.

In so far as the 'New PDP' lacked these legal capacities, it was never a political party. While the members are entitled to express their grievances with PDP or even split away, it was never a political party. A legal battle was fought to 'deregulate' the Nigerian political space by easing registration of new political parties. Since then registering a political party in Nigeria became almost as easy as registering incorporated trustees with the Corporate Affairs Commission.

Many such new political parties were at one time or the other associated with the one or more of the G7 governors. But it did not appear that the 'New PDP' were interested in registering the group as a new political party. Their intention was apparently to remain an albatross to the PDP while they mulled their next options. This was clear from its satirical name which was sustained to life by an excited media. The name 'New PDP' was, literarily, a mockery of the PDP.

The 'New PDP' was thus a faction of aggrieved PDP members. Being merely a faction, the irresistible conclusion on the nature of their union with APC is that the members of the 'New PDP' simply decamped. Thus while the use of the word 'merger' may be politically correct, it remains legally incorrect. There was no merger. The aggrieved PDP members effectively defected to the APC. There is no law against defection.

In respect of elected officials who have been sponsored by a political party from which they defected, there are some legal implications. Defection has no legal consequence on an elected executive. It only has implication on legislators. Thus a person elected into a legislative house would lose his or her seat in the federal or State legislature if he or she defects to a different party other than the one that sponsored him or her. See Sections 68(1)(g) and 109(1)(g) CFRN 1999.

Would 'New PDP' legislators defecting to APC lose their seats? There is a proviso. The consequence of defection is neutralized if defection was as a result of a 'division' (read fractionalisation) in the sponsoring political party or its merger with another. Note that in a seeming contradiction with our earlier submission that a faction of a political party cannot effect a legal merger, the proviso talks about "a merger of two or more political parties or factions by one of which he was previously sponsored".  It is suggested that the use of the word "factions" here is inelegant. A faction of a political party cannot sponsor a legislator. INEC would not have accepted nominations from 'New PDP' for any election.

By those provisions, the Constitution by implication recognises fractionalisation of a political party. The proper interpretation is that the 'recognition' sees fractionalisation as a political process, not necessarily a legal process. Thus the implications of emergence of factions should be accommodated as politics, but not to accord a splinter faction a legal life of its own. The 'New PDP' is believed to be larger than the G7 governors as many federal and state legislators and other political associates of the governors are believed to be part of the 'New PDP'.

The politywill most likely witness declarations by 'New PDP' legislators for APC in the days to come. Since Independence, defection (called cross-carpeting in the parliamentary system) has always been part of Nigerian politics. When in 2001, some Alliance for Democracy (AD) legislators in Lagos State including Dr. Wahab Dosunmu defected to the PDP, it was argued that they ought to lose their seats and it was a subject of litigation. I was in Court with my principal, Chief Mike Ozekhome SAN, for the Senate. The legal implication of defection is not a recondite issue of law.

In a country with a robust appetite for political litigation, we may witness a spate of litigations, but the legal issues involved have a lot of clarity. The 'New PDP' members decamped to the APC. It is within their right to freedom of association. The 'New PDP' being a celebrated faction of PDP, its members can keep their seats under 'New PDP' or APC. If this is not a "division", nothing else would be. So let the politicians maintain the peace and concentrate on good governance and convincing the electorate on the proper choice in 2015. Yes, it is believed that all the arguments and defections dovetail to permutations for 2015 elections.

Emeka is Senior Counsel, Constitutional Rights Forum, Lagos