KOLAWOLE: IT IS ILLEGAL TO DEFECT AND REMAIN A LEGISLATOR

Can Tambuwal remain a member of the House of Representatives having defected from the party that sponsored his election? The answer, based strictly on Section 68 (1) of the 1999 constitution, is no. 

That other lawmakers defected and no action was taken against them does not make it right or constitutional. It is clearly illegal to defect and remain a legislator. The section says: 

A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected...

However, that section of the constitution does give a condition under which you can retain your seat after defecting: 

Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.

The next question: is the PDP factionalised? If it is, Tambuwal can retain his seat. If it is not, he has to go. 

Tambuwal says the PDP is factionalised because the chairman of the Board of Trustees, Tony Anenih, visited Sokoto to reconcile the party's warring members and left him out. PDP says it has no factions. The "New PDP", led by Abubakar Baraje, is no more.

Now this is the key to the riddle: who decides if a party is factionalised? Is it the party leadership? Is it the members? Is it the Independent National Electoral Commission (INEC)? Is it a court? Is it the police? 

That, in my opinion, is the Tambuwal Test. In 2002, when AD senators Adeseye Ogunlewe and Wahab Dosunmu defected to the PDP, they retained their seats because INEC said their former party was factionalised, with Mamman Yusuf and Adamu Song both claiming to be chairmen. 

An option for the PDP is to ask for a bye-election in the Kebbe/Tambuwal federal constituency of Sokoto state, which Tambuwal represents. The party can cite Section 68 (1)(g) as the legal basis.