Falana, who cited various decisions of the Supreme Court to back his stance, however, said defecting governors were not bound to resign from office as the Constitution was silent on the implication of a governor dumping the political party.
In a statement he released on Sunday, the SAN, also argued that there was no legal basis for the removal of the Senate President, Dr. Bukola Saraki, on the basis of his defection from the All Progressives Congress on which platform he was elected to the Senate in 2015, to the Peoples Democratic Party.
According to him, legislators can only justifiably defect from their political parties without losing their seats when there is a faction at the party’s national level such that it is difficult for the parties to function.
He cited the Supreme Court’s decision in Abegunde v Ondo State House of Assembly (2014) LPELR 23683, in which the appellant a member of the House of Representatives, had decamped from the Labour Party to the defunct Action Congress of Nigeria.
Falana said, “From the clear and unambiguous pronouncements of the apex court, a division in a political party envisaged by the Constitution cannot be a figment of the imagination of prospective defectors.
“The division must make it practically impossible for the party to function.
“In the instant case, the APC was not split to the extent that two parallel congresses were held leading to the emergence of two parallel sets of officers at the national, state and ward levels.
“A recent example of the factionalisation or division of a political party was recently witnessed when the PDP broke into two factions led by former governors Sheriff and Makarfi until the faction led by the latter was recognised by the Supreme Court.
“No doubt, the members of the R-APC were dissatisfied with the running of the affairs of the APC but they did not hold any parallel convention which would have produced elected officials of the aggrieved members.
“To that extent, the defection of the R-APC legislators from the APC to the PDP and ADC can be impugned under section 68 (1) (g) of the Constitution.
“However, since the APC had allowed legislators to decamp from the PDP to join its fold in the recent past the ruling party lacks the moral and political rights to condemn the defection of the R-APC legislators.
“But the crass opportunism of the APC cannot legitimise the prostitution of the political system.
“Having decamped from the APC which sponsored their elections, the R-APC defectors ought to resign from the legislative houses and seek a fresh mandate from the electorate. In order to curb the dangerous trend some aggrieved members of the constituencies of the defectors ought to contest the legal validity of the refusal to resign from the affected legislative houses.”
On the implication of the defection by governors, Falana said, “However, the Constitution is silent on defection by the President and state governors from the political parties which sponsored their election.
Hence, in Atiku Abubakar v Attorney General of the Federation (2007) 4 SC (Pt II) 62 the Supreme Court held that the defection of the appellant from PDP to the former Action Congress of Nigeria was not illegal and unconstitutional.
“On the basis of that judicial authority, the decision of governors to dump the political parties which sponsored their elections was not challenged. I have therefore canvassed the argument that the defection of Governors Tambuwal, Ortom, and Ahmed of Sokoto, Benue and Kwara states respectively from the APC to the PDP cannot be said to be illegal or unconstitutional.”
On the move to remove Saraki as the Senate President on the basis of his defection from APC to PDP, Falana said, “The planned removal of the Senate President, Dr. Bukola Saraki by the APC should be stopped as it cannot stand.
“The attention of APC legislators ought to be drawn to section 52 of the Constitution which provides that the President and Deputy Senate President can only be removed by the resolution supported by the votes of not less two thirds majority of the entirety of the members of the Senate.
“Since the APC legislators cannot muster the required two-thirds majority of the votes of the entire members the plan to impeach Senator Saraki should be dropped forthwith.”