Prof Lawrence ETIM
The 1999 Constitution does not prohibit the President or Governors from defecting; it only bans legislators. However, the new INEC Electoral Guideline (2026) appears to extend restrictions to the President, Governors, and legislators alike – at least within the electoral process. Does this development amount to a contradiction of our Constitution?
THE ESSAY
The idea that political defection is detrimental to Nigeria’s democratic stability is well recognised. The 1999 Constitution reflects this concern and, to that extent, renders certain forms of defection impermissible.
However, the constitutional framework is selective in its application. It prohibits only legislators- members of the National Assembly and State Houses of Assembly – from defecting without consequence. Elected members of the executive arm – the President, Vice President, Governors, and Deputy Governors – are conspicuously excluded from this restriction.
Even for legislators, the Constitution does not prohibit defection outright. Rather, it imposes a specific consequence: a legislator who defects forfeits his or her seat in the Senate, House of Representatives, or State House of Assembly, as the case may be. Thus, the prohibition is not on contesting elections, but on retaining legislative office after defection.
The responsibility for enforcing this provision lies with the presiding officers – the Senate President, the Speaker of the House of Representatives, or the Speaker of a State House of Assembly – who must declare the seat of a defecting member vacant.
This arrangement, however, raises significant constitutional and practical concerns. For instance:
a) Who declares the seat of the Senate President or Speaker vacant if they themselves defect?
b) What happens where these presiding officers fail or refuse to perform their constitutional duty of declaring vacant seats?
On these questions, the Constitution is silent, thereby creating gaps in enforcement.
WHAT DOES THE CONSTITUTION MEAN BY “DIVISION” IN A PARTY
The Constitution provides an important exception: a legislator may defect without losing his or her seat if there is a “division” (faction) within the political party or a merger of parties.
The difficulty lies in the fact that the Constitution does not define “division.” Consequently, some legislators interpret even the slightest misunderstanding, internal disagreement, or routine factional dispute as sufficient justification for defection.
Since politicians are wont to present minor disagreements as “division,” courts are often left to interpret this provision on a case-by-case basis, leading to inconsistency in judicial outcomes.
In some instances, litigation may persist until the expiration of the tenure in question, thereby enabling the defecting legislator to complete the term regardless of the eventual judgment. This, in effect, also creates a practical loophole.
THE 2026 ELECTORAL GUIDELINES
The 2026 Electoral Guideline seeks to address and mitigate these loopholes, particularly at the pre-election stage.
Under the new regime:
a) Political parties must submit to INEC the names of candidates who emerge from their primaries.
b) Once this list is submitted, INEC will NOT recognise or accept individuals who defected after their party primaries as candidates in any election it conducts.
The logical implication is clear: while politicians may still defect after primaries, they cannot contest elections under their new party within that electoral cycle. They must wait until the next cycle.
Unlike the Constitution, which operates post-election and primarily affects legislators, the 2026 Guideline operates pre-election and applies to all aspirants and candidates – including those seeking executive offices such as President and Governor.
IS THERE A CONTRADICTION?
At first glance, a tension appears to exist. The Constitution permits elected executive office holders to defect without consequence, whereas the 2026 Guideline imposes restrictions that affect their ability to contest elections following defection.
However, a closer analysis reveals that the two frameworks operate at different stages and for different purposes:
a) The Constitution regulates the tenure of elected officials, particularly legislators.
b) The Electoral Guideline regulates eligibility to contest elections.
Thus, the guideline does not directly prohibit defection in the constitutional sense; rather, it imposes procedural consequences on those who defect at critical stages of the electoral process.
CONCLUSION
The 1999 Constitution does not prohibit the President or Governors from defecting; it only restricts legislators, and even then, only with respect to retaining their seats.
Conversely, the 2026 INEC Electoral Guideline extends its reach to all categories of elected political actors – but only within the context of electoral participation.
Whether this amounts to a contradiction is ultimately a justiciable question. Only the courts can give a definitive answer.
What is clear, however, is that the guideline represents a deliberate attempt to strengthen party discipline, reduce opportunistic defections, and restore coherence to Nigeria’s electoral process – areas where the Constitution, in its current form, has proven inadequate.
Prof. Lawrence Etim is the Emeritus Professor of Fishery Biology and Former Dean, Postgraduates School, University of Uyo.
