The proposed anti-defection policy by the Nigeria Democratic Congress (NDC) has sparked debate over whether political parties can compel elected officials to forfeit office after defecting. While some lawyers see it as promoting party discipline and accountability, others argue it violates constitutional rights, leaving the courts to ultimately determine its legality. Assistant Editor ERIC IKHILAE and SANNI ONOGU examine the debate.

In a political environment where defections have become almost routine, the Nigeria Democratic Congress (NDC) has taken one of the boldest steps yet to curb political cross-carpeting.

The emerging opposition party has introduced an anti-defection policy for all its candidates, from State House of Assembly aspirants to National Assembly hopefuls.

They are to sign legally binding indemnity agreements and affidavits before contesting elections on its platform.

Under the arrangement, any candidate elected on the party’s platform who later defects to another political party would be required to vacate the office won under the NDC banner.

The party argues that electoral mandates belong primarily to political parties rather than individuals and that elected officials should not transfer mandates secured on one platform to another.

The policy has triggered sharp debate, earning praise from those frustrated by Nigeria’s culture of political opportunism and criticism from others who view it as unconstitutional and anti-democratic.

As the country heads towards another election cycle marked by coalition-building, mergers and defections, the initiative has reopened debate about party loyalty, constitutional rights and democratic representation.

Response to Nigeria’s defection culture

Political defections have remained one of the most controversial features of Nigeria’s democracy since 1999.

Governors, legislators and other elected officials have repeatedly switched parties, often citing internal crises, ideological disagreements or political survival.

The trend intensified before and after the 2023 general election, with prominent politicians moving among the All Progressives Congress (APC), Peoples Democratic Party (PDP), Labour Party (LP), New Nigeria Peoples Party (NNPP) and other parties. Politics

For many Nigerians, the practice has become synonymous with political opportunism, with candidates campaigning on one platform only to abandon it after securing electoral victory.

Against this backdrop, the NDC says its policy is intended to protect the integrity of electoral mandates, arguing that voters increasingly cast ballots for party programmes and platforms rather than personalities.

The constitutional question

The policy immediately raises a constitutional question: can a political party compel elected officials to surrender their seats upon defection?

Sections 68(1)(g) and 109(1)(g) of the Constitution require members of the National Assembly and State Houses of Assembly to vacate their seats if they defect before the expiration of their tenure, except where there is a division within the party or a merger. No similar constitutional provision exists for governors, deputy governors, the President or Vice-President.

Although the Supreme Court has repeatedly emphasised the central role of political parties in elections, the application of that principle to elected executives remains contentious. Critics therefore argue that agreements restricting political association could face constitutional challenges.

‘A moral solution, not yet a legal one’

Senior Advocate of Nigeria John Olusola Baiyeshea believes the NDC has identified a genuine problem but may have proposed a remedy that falls short of a lasting legal solution.

“What the NDC has done has merely addressed a critical moral issue that has plagued the Nigerian political space for many years, that is, the issue of defection from one political party to the other,” he said.

While describing the initiative as commendable, Baiyeshea argued that it cannot succeed in isolation.

“I will say that what the NDC has put in place is good, but it is not far-reaching enough because the party cannot act in isolation. The issue of defection has to be frontally addressed by legislation in the Electoral Act and the Constitution,” he said.

He noted that many politicians who should enact such reforms had themselves benefited from frequent defections.

“In the political space today, nearly 98 per cent of politicians have changed political parties several times, including those in the National Assembly who should legislate against the malaise,” he said.

According to him, the affidavit requirement amounts to a political rather than a legal solution.

“Eventually, such issues will be taken to court for resolution and it could turn on the fact that, having sworn to such an affidavit and written an undertaking, you would be deemed to have waived your constitutional rights to freedom of association,” he said.

He, however, acknowledged the opposing argument.

The issue can also be raised that such an affidavit is in conflict with the constitutional guarantee of freedom of association and cannot be waived.”

is conclusion was cautious.

“We have a very robust legal system in which the courts are always kept busy deciding on a myriad of issues. We all need to wait patiently as such issues and matters unfold through the courts.”

Freedom of association versus party discipline

Abuja lawyer Chief Tunde Falola also sees a constitutional dilemma.

He argued that Section 40 of the Constitution guarantees every Nigerian the freedom to associate, including the right to join or leave a political party.

“The right necessarily includes the freedom to cease membership of a political party and associate with another political party,” he said.

Falola maintained that constitutional rights cannot be taken away by party constitutions, affidavits or private agreements.

“An indemnity agreement or affidavit compelling an elected office holder to vacate office upon defection would amount to a private attempt to impose a constitutional disability not recognised by the Constitution,” he said.

He cited the Supreme Court’s decision in Attorney-General of the Federation v. Atiku Abubakar, where the court held that there was no constitutional provision requiring the Vice-President to vacate office merely because he defected.

“The decision remains one of the leading authorities on political defections and freedom of association in Nigeria,” he said.

Falola also relied on Abegunde v. Ondo State House of Assembly, where the Supreme Court held that legislators lose their seats upon defection only because the Constitution expressly provides for it.

“What the Constitution has not prohibited cannot be prohibited by a political party through a contract or affidavit,” he argued.

According to him, while the NDC policy may carry moral and political weight, it would likely fail constitutional scrutiny if challenged.

“The affidavit cannot create a constitutional ground for removal from office and any clause mandating automatic resignation or vacation of office upon defection would likely be declared unconstitutional and void.”

Abuja lawyer Oluwole Adaja argued that the policy does not violate freedom of association because political parties are voluntary organisations.

“A member that finds such rules or guidelines obnoxious or anti-democratic is at liberty to reject such policy by resigning from the party,” he said, adding that no one is compelled to remain in the NDC.

“While every citizen has the freedom to associate with any lawful association, no citizen can be forced, compelled or coerced to stay in such an association.”

Adaja relied on the Supreme Court’s decision in Agi v. Peoples Democratic Party, which held that members who voluntarily join political parties are bound by their constitutions and rules.

“It is therefore crystal clear that the anti-defection policy of the Nigeria Democratic Congress is not a violation of the right to freedom of association of the candidate,” he said.

“Any candidate that is dissatisfied or aggrieved by such policy is at liberty to resign. However, a member who decides to stay must abide by the rules, regulations and constitution of the party.”

His position reinforces the NDC’s argument that aspirants voluntarily accept the conditions attached to party sponsorship.

A middle ground

Lawyer Sunday Essienekak adopts a more nuanced position.

According to him, there is nothing unconstitutional about requiring candidates to sign undertakings against defection.

“Such a policy is not necessarily unconstitutional merely because it requires a candidate to undertake not to defect,” he said.

However, he argued that the constitutional problem begins where the policy seeks to compel an elected office holder automatically to vacate office.

“That aspect is likely unenforceable because it is in total conflict with the Constitution.”

Essienekak said political parties are free to require indemnities and affidavits as conditions for obtaining party tickets.

“The problem is whether the party can force the loss of office,” he said.

He noted that while Sections 68 and 109 of the Constitution already prescribe the consequences of defection for legislators, no similar provision exists for governors or the President.

Senior Advocate of Nigeria Yunus Abdulsalam approached the issue from a different perspective.

Although his opinion centred on whether political parties can compel aspirants to waive their right to challenge primary elections in court, he said the principle equally applies to the anti-defection debate.

Abdulsalam acknowledged that political parties are voluntary associations whose members are generally bound by their constitutions and guidelines.

However, he stressed that party autonomy has constitutional limits.

“Parties cannot by private undertaking validly extinguish or exclude the jurisdiction of the courts in circumstances where the law expressly grants a right of action,” he said.

According to him, while parties may require members to exhaust internal dispute resolution mechanisms, they cannot extinguish statutory or constitutional rights through private agreements.

Any attempt by a political party to create obligations that conflict with constitutional provisions, he argued, is likely to encounter judicial resistance.

Judicial precedents

The legal debate surrounding the NDC’s anti-defection policy is rooted in a number of Supreme Court decisions that have shaped Nigeria’s constitutional jurisprudence on defections.

Foremost among them is Attorney-General of the Federation v. Atiku Abubakar (2007), which arose after then Vice-President Atiku Abubakar defected from the Peoples Democratic Party (PDP) to the Action Congress (AC) following his dispute with then President Olusegun Obasanjo.

The Federal Government argued that Atiku automatically forfeited his office by leaving the party on whose platform he was elected.

The Supreme Court disagreed, holding that the Constitution contains no provision requiring the Vice-President to vacate office because of defection.

The court also affirmed that the constitutional guarantee of freedom of association includes the right to change political affiliation.

The decision remains the leading authority protecting executive office holders who defect from their political parties.

Another landmark case is Abegunde v. Ondo State House of Assembly (2015), where the Supreme Court held that a legislator who defects automatically loses his seat except where the defection results from a division within the party or a merger involving political parties, as provided by the Constitution.

The court’s decision reaffirmed the constitutional distinction between legislators and executive office holders in matters relating to defection.

The Supreme Court’s decision in Amaechi v. INEC (2008) also remains significant. Although it concerned candidate substitution, the court stated that elections are contested and won by political parties rather than individual candidates.

That dictum has been relied upon by those who argue that electoral mandates belong primarily to political parties.

However, subsequent decisions, including CPC v. Ombugadu and Ozomgbachi v. Amadi, moderated that position by recognising that while political parties occupy a central place in Nigeria’s electoral system, candidates remain important constitutional actors.

Taken together, the authorities demonstrate the courts’ attempt to balance party supremacy with constitutional rights, making clear that political rights and constitutional tenure cannot be altered solely through party rules or private agreements.

Risks and benefits

Supporters of the NDC policy argue that it could strengthen party discipline by discouraging opportunistic defections that undermine ideological consistency and organisational stability.

They also believe it could restore voter confidence, as many citizens feel betrayed when politicians abandon the parties on whose platforms they sought and won electoral mandates.

Supporters further contend that stronger anti-defection measures could encourage the development of more programme-driven political parties, reducing the personality-based politics that has long characterised Nigeria’s democratic experience.

Critics, however, point to significant risks.

One concern is enforceability. Even where candidates voluntarily sign indemnity agreements and affidavits, constitutional provisions may override such private undertakings.

There are also fears that party leaders could deploy anti-defection mechanisms to suppress internal dissent and consolidate their control over party structures.

Rather than reducing political disputes, the policy could trigger fresh litigation over its interpretation and enforcement. Some observers also argue that rigid anti-defection rules could discourage credible aspirants from joining the party.

Lessons from other democracies

Other democracies have grappled with similar challenges.

India introduced one of the world’s strongest anti-defection regimes through the Tenth Schedule to its Constitution in 1985.

The law generally requires legislators who defect from the parties that sponsored them to forfeit their seats, subject to limited exceptions such as mergers.

The legislation has substantially reduced opportunistic defections, although critics say it has also strengthened party leadership at the expense of legislators’ independence and internal democracy.

South Africa adopted the opposite approach in 2002 by permitting “floor crossing”, allowing elected officials to change political parties during specified periods without losing their seats.

The experiment proved unpopular, with many voters accusing politicians of betraying electoral mandates, prompting its abolition through a constitutional amendment in 2009.

By contrast, defections in the United Kingdom and the United States generally do not attract loss of office. Instead, political accountability is largely enforced through party traditions, ideological differences and electoral consequences.

These experiences suggest that while anti-defection measures can promote political stability, they may also produce unintended consequences if they unduly restrict political freedoms or strengthen party oligarchies.

For Nigeria, they underscore the argument that any lasting solution may require carefully crafted constitutional and legislative reforms rather than reliance solely on internal party agreements.

The bigger democratic question

The NDC policy may ultimately face its greatest test if the party itself experiences internal divisions.

Nigeria’s political history shows that no party is immune from leadership crises.

The PDP, once regarded as Africa’s largest political party, suffered prolonged internal conflicts, while the APC and several smaller parties have also experienced factional disputes. Politics

If the NDC encounters similar challenges, constitutional exceptions permitting legislators to defect because of divisions within their parties could significantly weaken the effectiveness of its proposed safeguards.

ltimately, the policy’s success may depend less on legal documentation than on political culture.

Countries with stable party systems often rely more on strong ideological commitments and institutional traditions than on contractual restrictions.

In Nigeria, where political alliances frequently shift in response to electoral calculations, legal agreements alone may prove insufficient.

Nevertheless, the NDC has succeeded in placing political accountability and the sanctity of the electoral mandate at the centre of national discourse.

Its proposal taps into widespread public frustration over the ease with which politicians abandon the platforms that brought them to office.

Whether the courts eventually uphold or invalidate aspects of the policy, the debate has highlighted growing concerns about the quality of political representation and the need to strengthen democratic institutions.

The NDC’s anti-defection framework is an ambitious attempt to tackle one of Nigeria’s most persistent political challenges.

Its supporters regard it as a necessary response to years of political betrayal, while its critics see it as a potentially unconstitutional restriction on fundamental freedoms.

Between those positions lies a complex legal and political reality. What is certain is that the proposal comes at a time when public confidence in political parties is under increasing scrutiny, and defections continue to reshape Nigeria’s political landscape.

Whether the NDC has found a workable solution or merely opened another constitutional battleground is a question that only time, and ultimately the courts, can answer. (The Nation)

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