The President of the Nigerian Bar Association, Afam Osigwe, (SAN), has said the Independent National Electoral Commission lacks the constitutional authority to declare the seat of any governor vacant on account of defection from one political party to another.
The statement follows public reactions trailing the call on INEC by a chieftain of the African Democratic Congress and Nollywood actor, Kenneth Okonkwo, to declare the seat of Bayelsa State Governor, Douye Diri, vacant after he resigned from the Peoples Democratic Party, the platform on which he was elected in 2023.
Diri resigned his PDP membership on Wednesday during an expanded State Executive Council meeting held at the Government House, Yenagoa, which was attended by the Speaker of the state House of Assembly, Abraham Ingobere; his deputy, Michael Ogbere; the All Progressives Grand Alliance Minority Leader, Edward Brigidi; and seven other lawmakers.
He attributed his decision to leave the party to what he described as “obvious reasons.”
His resignation sparked speculation that he might be heading to the ruling All Progressives Congress.
The Bayelsa governor’s defection came barely 24 hours after his Enugu State counterpart, Peter Mbah, and three members of the House of Representatives dumped the opposition party for the APC.
Reacting in a post on his Instagram page, Okonkwo argued that Diri had automatically vacated his seat by resigning from the PDP without belonging to any political party.
He cited Section 177(c) of the 1999 Constitution (as amended), which provides that a person shall be qualified for election to the office of governor if he is “a member of a political party and is sponsored by that political party.”
Okonkwo, therefore, urged INEC to act swiftly by declaring the seat vacant and conducting a fresh election within 90 days.
However, speaking with Saturday PUNCH, Osigwe described Okonkwo’s interpretation of the law as “baseless and unconstitutional.”
According to Osigwe, neither the Constitution nor any existing judicial precedent grants INEC or any authority the power to remove a member of the executive — such as the president, vice president, governor, or deputy governor — for defecting from one political party to another.
He noted that the Supreme Court had already settled the issue in Atiku v. Attorney-General of the Federation, where it ruled that the constitutional provision on loss of seat due to defection applies only to legislators.
“In 2006, Atiku Abubakar was vice president under Olusegun Obasanjo. They were elected on the PDP platform, and when Atiku defected to the AC, the president sought to declare his office vacant.
The matter went all the way to the Supreme Court, and the court made it clear that the issue of losing a seat due to defection does not apply to the executive, only to the legislature,” Osigwe said.
He stressed that the law remains settled and should not continue to spark needless controversy.
“Here we are in 2025, still wasting time on what the Supreme Court has already settled. There is no provision in the Constitution allowing the removal of a governor because he changed parties.
A governor can defect 50 times, and there will still be no legal basis to declare his seat vacant,” he added.
Osigwe urged Nigerians and political commentators to desist from “wasting judicial and journalistic time” on matters already resolved by the courts, insisting that the constitutional position “is clear and unambiguous.”
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