In this interview with EMMANUEL ADO, host/syndicated columnist, Francis Kozah, a legal practitioner and one-time Legal Adviser of the All Progressives Congress (APC), speaks on the decision of the Kaduna State House of Assembly to declare the seats of the former deputy Speaker John Audu of Kachia Constituency and Junadu Yakubu of Kudan Constituency vacant for defecting from the APC to the Peoples Democratic Party (PDP), and reaffirmation of the suspension of Sen Shehu Sani by the state chapter of APC.

Let's tackle the issue of defections generally
The Constitution of the Federal Republic of Nigeria makes it categorically clear that all Nigerians have a fundamental right of association. In other words, Nigerians have the freedom to form political parties and associate with any political parties at any point in time. However, like all other rights, no right is absolute. Now when we come to political associations, political parties, every political party dully registered has its own constitution and they are run by their constitutions. I must point out that the Nigerian electoral law makes no room for independent candidature. So, it is a political party that sponsors a candidate to contest elections. When you look at the ballot paper, you will never see a name of a candidate there. It is the political party that is on the ballot paper; and so when you go to vote, you vote for the political party. Therefore, when votes are declared, it is the political party that wins the election. The candidate is an agent or an instrument of the political party. The political party is not a person that can speak. It needs people to think for it and to act for it. And that is where the candidate comes in.

In the real sense, it is the political party that contests election; that wins or loses election. So, when you say Francis Kozah, Shehu Sani wins election, for example, you are not saying the true position of things. The position is that it is the APC that won or, if it is PDP that wins, as the case may be. The Supreme Court has strengthened that position by making it categorically clear that it is the party that contests, that sponsors the candidate; that either wins or loses election. Therefore, the votes are for the party. And, so, when somebody is sponsored by the political party and the party wins the election, and the person goes to the House or the Senate to represent his constituency on the platform of that party, it is the mandate of the party that he is sitting on: not his own mandate as a person. Hence, if he leaves the party, the party can claim their mandate by asking the Senate president or Speaker to declare the seat of Mr A who was elected on the platform of our political party who has defected to another party; that party seizes to have a human representative in that house; kindly notify INEC of the vacancy and call on them to conduct an election to fill the vacancy. That is what has happened in the Kaduna State House of Assembly. I may be bold to say that the speaker, with due respect to people with contrary opinion, was right in declaring the seats of the Kaduna State members that defected from APC to PDP vacant; and INEC is accordingly invited to do the appropriate thing.

You spoke of the freedom to associate...you are a politician: give me a run-down of your political life.
I am a politician for a considerable number of years now. I started with PDP and I left; joined APP, which later metamorphosed into the ANPP, and then the CAN; and because of the merger of the three political parties, I now found myself in APC.

Why did people move from PDP, for instance, to APC?
People move for personal reasons or based on principle. Political parties are formed based on principles. Now, when you discover that those principles have been abandoned and you are a principled man, you move out.

So parties are not vehicles to achieve developmental goals?
It should be. But, at the same time principles count most and when you deviate from those set principles and you believe in something but you cannot attain that within that political party, you can move. However, you must bear the consequences of your movement because you cannot eat your cake and have it. So when you exercise your fundamental right of association, of moving from one political party to the other, then you should be willing and ready to accept the consequences of your action. So, if you are elected on the platform of the APC as a member in the House of Assembly or in the Senate, and you decide to move, you must be ready to accept in total the consequences of or implication of that movement. It is morally right as a principled man to say yes, I was holding something in trust on behalf of a political party and now that I am not with them, I want to hand it back to them. It is the same thing when you are employed, for instance, and you resign from the employment; it is incumbent upon you to do a proper hand-over of all the assets of that office that you are leaving. You don't need anybody to tell you that you must hand-over: to make a clean break.

I will still ask you: why do people move? The former vice-president Atiku Abubakar; between 1999 to 2018 has moved from the PDP to ACN, back to the PDP, off again to APC and back to the PDP - all within a period of less than 20 years. You still want to talk about principles? You still want to talk about him looking for like minds?
That is an exceptional case, it is terrible! That can be described more like harlotry; political prostitution, because one shouldn't move like that. That is definitely selfish, too greedy. It's a movement that suggests that it's all about power.

We are going to talk more about morality and politics....
I still want to make a point about the issue of defection. Now, the Constitution gives you the right of association. Let's take the case of the Kaduna State deputy Speaker and the member from Kudan constituency who were elected on the platform of APC and on whose mandate they voted for them. Now, they have left and they tried justifying their decision on the grounds that there is a faction in APC and alleged impunity. First, impunity is not a justifiable ground for you to leave a political party; you must exhaust the machineries embedded in the party structure to address such impunity, hence it's not a justifiable reason to leave on that ground. The Supreme Court, again, has made it clear in the case of Abengude and the Ondo State House of Assembly, that factionalisation is not the thinking of the defector. The problem must be such that it's impossible to run the party...it is practically impossible for the party to function. Has the APC not been functioning: either at the state level or the national level? The APC has been functioning. And when you talk about factionalisation, we are not talking of a member in his bedroom or in any place and announcing a faction. No! The APC constitution provides that the constitution of the executive must be in line with the party constitution; that, there must be a convention dully called by a structure that is in existence. Now, throughout the convention that was held either at the state or the federal level, it is the sitting APC structure, executive that summoned and convened the convention which took place at a particular place, time and date. All necessary delegates that ought to participate in the convention were invited and they attended and they also transacted the business of the convention. Now, if at that convention, there was a break-up at the venue and one group purportedly elected someone and another group elected somebody else, then you can say there is a faction in the APC at the national level, because the convention was dully called and during the convention, there was a division.

Like what we had when SI Danladi Wada said he was heading a faction....
Let's bring it even closer, Col Gora (retd) claims he is heading a faction. How can that be when the sitting APC structure in Kaduna State convened the congress which took place at the Trade-Fair Complex on a set date, with a specific business and that eventually happened as delegates came from all the local government areas, carried out the business of the day which produced the Jekade-led executive of the party. If, at that trade fair complex, a group had purportedly elected Gora, one can say there is a faction in Kaduna State chapter of the APC. But since that didn't happen, it is not envisaged that somebody will go and sit down in one’s sitting room and purportedly create a faction. So I make bold to say that APC is not factionalised, either in Kaduna or at the national level, and so nobody can use that as the basis to leave, including the Senate president. There is no faction in APC, legally speaking.

Why hasn't the PDP gone to court against the APC on Akpabios defection and why has APC itself not been able to go to court against Saraki for defecting with your mandates rather than over-heating the polity, especially since we have this 2015 Supreme Court judgment. It is very clear that the division must be fundamental and at the national level and not at the state level, as the Supreme Court said. Why is it difficult for the APC to take Saraki to court? Can the party approach a court of law to say: our member, Bukola Saraki, who stood election on our behalf, has decamped to the PDP and there is no crisis in our party?
Anybody who is aggrieved has a right to seek redress among other options that are available: either to go to court or use other options available once it is lawful. Now in the case of Saraki, he is the presiding officer of the Senate. APC as a party has the right to seek relief from the court, if it is aggrieved just like any other political party. But, again, APC has the right to seek other avenues of getting a relief. If, for instance, APC can muscle the number to get him impeached or removed as Senate president, that could be another lawful means that it can use. The question has always been: how can you remove Saraki as Senate president? The argument has been that APC will need two-third of the members of the Senate to get him removed. Another school of thoughts says you don't need two-third of all senators, but two-third of the senators sitting to transact business on that day. The issue of two-third is settled and acceptable to all. The Constitution provides that you need two-third of members.

My take when you critically analyse the law, section 50 says two-third of members when the quorum of the Senate is one-third. Once one-third of members are present at a session, those members can constitute a quorum and they can transact any business of the day and that will be binding in the house. Now, if for the removal of the Senate president, the constitution had wanted to say two-third of all the members, it would have said so. Now, on quorum, section 54 says the quorum of the Senate shall be one-third of all the members of the Senate. So to form a quorum, one-third of all the members must be there to transact the business of the day; and if the business of the day is the removal of the Senate president and one-third of all the members are there, they can transact that business by two-third of that one-third.

There are rumors flying in the air that Saraki, like the Kaduna State House of Assembly case, would declare the seat of Godswill Akpabio vacant. So where do we go from there; because as the presiding officer he won't declare his own seat vacant?
That is why we talk about the question of morality. Whether we like it or not, morality will come in. Law is there, if you move without any constitutional backing, that seat can be declared vacant. Akpabio moved from PDP to APC and a host of other senators have also moved vice versa. Again, it will be immoral to declare Akpabio’s seat vacant and fail to declare the seats of other people that have moved from APC to PDP. That will be injustice and you have sworn to do justice to all without fear or favour. That is the issue: we are in for some drama....it is going to be exciting.

So, why won't the APC, backed by the judgment of the Supreme Court take the easy way out: go to court and get the court to affirm that Saraki, having decamped, and the APC not being in any kind of crisis, his seat should be declared vacant?
You see, when you go to court, the problem is that it will take some time for the trial court to decide. Whatever the decision of the High Court, anybody who is not satisfied would definitely go to the Court of Appeal and from there to the Supreme Court, which will invariably take time. It will be impossible to resolve the problem within six months. Time is of essence. So, the urgency of the business does not warrant such move. You could also explore other options to find your solution to it. The law provides that. You can impeach him, which is why the issue of his impeachment is on the front-burner. For me as a politician, I will prefer that all the options are explored to get him out as the Senate president. We should, if we get the right number.

Against this background, rate the Kaduna State House of Assembly in terms of political will and decisiveness. Where Abuja has been slumbering, Kaduna has been decisive?
The APC in Kaduna State House of Assembly is making use of its majority in the house and I commend them, because politics is about interest. Politics is defending your interest and that of your constituency. They were elected on the platform of the APC and the APC has the majority. Kudos to them for putting it to the advantage of the majority, and to also grow the policies of the party. Any member of the opposition in Kaduna State, who is politically wise, would not knock his head on the wall like the other two members have done. This is because they know that the APC members in the house are united. Look at when the PDP tried to remove the Minority Leader, the majority stopped it, because it was in the interest of our party.

It's obvious the two members miscalculated?
They did. They were not politically smart. Kaduna State is politically sophisticated. Recall the state impeached a governor successfully.

Going forward, now the two former members of the Kaduna State House of Assembly have an opportunity; having moved to PDP they have an opportunity to test their popularity: Was it the APC that won the seats or they that won it on their own popularity?
That is if they are given the mandate in their new place, because many other people are eyeing the seats they vacated. So, it’s going to be a fight with older members of the PDP, their new party. They threw away certainty for uncertain future.

Can they retrace their steps or it is closed?
It is a done deal! No need crying over spilled milk. The next thing will be to invite the Independent Electoral Commission to conduct a bye-election.

Their actions will cost Nigeria millions of naira; maybe as a way of checking defections, assuming John Audu gets the PDP ticket for the bye-election and he loses, meaning he is not popular, he took an action that obviously was his and the people returned APC again in Kachia constituency. Would you want him to be surcharged because his action was clearly unpopular?
That will be unfair on him. In the first place, he has his constitutional right to move, because the constitution guarantees him the right. The only issue here was that he was trying to eat his cake and have it. If they had moved and left everything that would have been honourable.

So, how do we stop defection?
We will stop it by enforcing the law. If you defect, you bear the consequences. Your seat is declared vacant and that is enough punishment. I expect that in the Senate all those that have defected, their seats should be declared vacant, including that of the Senate president. Let them go and test their popularity in the bye elections on the platform of their new party. It is only when the law is enforced that people will think twice about defecting. People will keep defecting so long as they keep their seat when they defect. If in the past all the defections were meted with the appropriate sanction by declaring their seats vacant, maybe the issue of defections would have been a thing of the past. So we are learning from experience. Let Saraki be honourable enough to declare his seat vacant, and then declare the other senators’ seats who have defected vacant too.

Thank you for your insight on the issue of defection, the position of the law and your commendation for the Kaduna State House of Assembly for doing what you think the constitution demands from it. Another area that has been brewing is the Senator Shehu Sani matter. In our last conversation you were very emphatic that Sani is not a member of the APC. If you still hold on to this position, my question will be why is the national body doing business with someone that his local ward and even the state has disowned?
As far as my information on the issue is concerned, Shehu Sani has been expelled from APC. Now that expulsion was legal because it followed due process. I was actively involved as state legal adviser of the party. Upon his expulsion, if he was not satisfied, he had the right to appeal against the decision to the appropriate organ of the party. To the best of my knowledge, he has not appropriately exercised the right given to him. If he had done so, his appeal would have been heard. The parties would have been invited to state their position and a decision taken. Whatever is done by any organ of the party, including the national body of the party, is an exercise that is predicated on illegality and it cannot stand. If they want, let them follow due process and rectify the problem and he will be reabsorbed into the party.

Why is it that APC is not tidy about such issues. Having suspended or expelled him, what was next for the national body to do?
You know in politics, a lot of things are happening and I think they are trying to see how they can resolve the issue politically. But, again, in resolving the issue, you must follow due process. It's not for you to sit down and decide what happens because the law does not allow that. Follow the due process.

The rumour going around....because the party at the state level said they have not received any formal letter from the national body lifting Shehu Sani's suspension. If the rumour is true, what are the implications for party discipline? If tomorrow a letter comes saying Kaduna, we have forgiven Senator Sani all his sins, he is now the member of your state chapter. How will Kaduna State chapter react?
There are remedies. If the state chapter is not happy with the decision of the national, they can appeal against it. And if they exhaust all the avenues of redress within the party structure, they still have the right to seek a declaration from the court. My take is that if the state tomorrow receives a formal notice that something has happened at the national, they can appeal against it within the party structure and having exhausted that option, they can go to court and seek a declaration that the purported decision of the national is null and void; it’s unconstitutional and the court will make a pronouncement on that, based on the facts and evidence presented before the court.

As a former legal adviser of the APC, Kaduna State chapter: What is your impression of Senator Sani?
You see, Shehu Sani is somebody who likes to play to the gallery. I say so because he is not a committed party man. Therefore, in my assessment, he is not a serious politician. When there were allegations against Shehu Sani, the party initiated a process against him and he was invited severally, but he refused to honour the invitation. If you are a committed and patriotic party man, and any organ of the party invites you, you must show respect to that organ and obey the summons. He refused to obey the summons. The pronouncements of Shehu Sani on party policies and decisions, either in government or within the party, show that he is not a committed member of the party. As a committed member of the party, whatever decision the party takes, you are bound by it. And if you don't agree there are mechanisms within the structure that you can pursue. Certainly not outside!

I don't take him seriously as a politician and I don't take him serious as a committed member of APC. If he wants to be a member of APC, let him come back and do the right thing. It is not automatic; he must do the necessary thing because he was suspended a long time ago. Membership is at the ward level, go back and get registered.

Are you surprised that despite the party disowning him, that he is still clinging unto the party, considering all his utterances. One would have thought by now that he would have officially decamped from FC broom to FC Umbrella, as he has been tweeting?
Shehu Sani knows that APC is the party to beat in Kaduna State and, especially in the Central Senatorial District. And so anybody who thinks that he can come and beat APC in Kaduna State is just dreaming. It's just like hitting your head on the rock, and you will just break your head. So, Shehu Sani is faced with reality and he knows that fact; that's why he doesn't want to leave the party. I think I must commend him for that. He is very wise, unlike the others that have left. They will soon discover that they are hitting their heads on the rock. The audience that he has been pandering to, that made him to insult the party, has not come to his help. Shehu is wise; he has calculated and seen the handwriting on the wall: that is why he has refused to move. But he is not our member. If he wants to be relevant politically, he must belong to the APC because there is nowhere to go, despite the options. He is only popular on social media, like Facebook, but when it comes to the real votes, it may be insignificant. Seriously, he can't make it. Shehu Sani can never be elected senator on the platform of any other political party other than the APC in the Central Senatorial District. Primary election is just days away and it is a pity he has no platform, because he is not a member of the APC.

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