The Independent National Electoral Commission does not have the constitutional power to declare vacant the seat of any state governor who defects from one political party to another, the President of the Nigerian Bar Association, Afam Osigwe (SAN), has said.
Osigwe made this clarification whilst responding to calls by an African Democratic Congress chieftain and Nollywood actor, Kenneth Okonkwo, who had urged INEC to declare the seat of Bayelsa State Governor, Douye Diri, vacant following his resignation from the Peoples Democratic Party.
Diri had on Wednesday resigned his PDP membership during an expanded State Executive Council meeting at the Government House, Yenagoa. The meeting 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.
The governor attributed his decision to leave the party to “obvious reasons,” sparking widespread speculation that he might be joining the ruling All Progressives Congress.
His defection came barely 24 hours after his Enugu State counterpart, Peter Mbah, and three members of the House of Representatives also left the opposition party for the APC.
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 states 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 urged INEC to declare the seat vacant and conduct a fresh election within 90 days.
However, whilst speaking with Saturday PUNCH, Osigwe dismissed Okonkwo’s interpretation of the law as “baseless and unconstitutional.”
According to the NBA president, 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 matter 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.
Osigwe said, “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.”
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.”
