When the National Democratic Congress began asking its candidates to sign indemnity forms and affidavits promising to vacate their seats if they later defect to another party, the measure was billed as a device to enforce party discipline. But a legal opinion obtained by party insiders delivers a blunt verdict: the policy is unconstitutional, unenforceable and contrary to public policy.
At stake is a fundamental question about the limits of party power and the supremacy of the Constitution. The opinion argues that the indelible terms of the 1999 Constitution, not private agreements between parties and candidates, determine when an elected official can be deprived of office for changing party allegiance.
Constitution first, policy second
The legal note begins with a simple constitutional axiom: the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the supreme law of the land. Section 1(1) and (3) make clear that no party rule, policy or contract can lawfully alter or contradict constitutional provisions. From that starting point, the opinion turns to the specific provisions that govern defection.
Sections 68(1)(g) (for members of the National Assembly) and 109(1)(g) (for members of State Houses of Assembly) provide the exclusive circumstances in which an elected legislator’s seat may be declared vacant because of defection. Those provisions require that a member whose election was sponsored by a political party vacates his seat if he becomes a member of another political party before the expiration of the House’s term, but they expressly carve out important exceptions: where the move arises from a division within the original party or from a merger of parties or factions.
The opinion contends that the NDC’s new paperwork — which appears to create an automatic obligation to forfeit a seat upon defecting, without regard to the constitutional exceptions — represents an impermissible attempt to expand the grounds for losing a seat beyond those the Constitution allows.
Why an affidavit can’t trump the Constitution
Two legal principles underpin the opinion’s reasoning. First, a political party cannot, by internal rule, indemnity form or affidavit, override or supplement the Constitution’s exclusive conditions for disqualification. Any clause or agreement inconsistent with constitutional text is void to the extent of the inconsistency. Second, the electorate’s mandate is a public trust regulated by the Constitution; it cannot be made subject to private contractual limitations that fetter an elected representative’s constitutional rights and duties.
Put bluntly, the opinion argues, an affidavit that purports to bind a member to vacate a seat upon defection cannot supplant the constitutional test. If the NDC were to rely on such paperwork as the basis for declaring a vacancy or pursuing legal sanctions, the action would be vulnerable to legal challenge — and the courts have, the opinion notes, consistently upheld the Constitution’s supremacy in defection disputes.
Practical and political risks
Beyond the constitutional infirmity, the legal advice warns of the policy’s practical fallout. It risks sparking expensive litigation that the party is likely to lose, invites public criticism, and could deepen internal divisions. The opinion also records a note of irony: that a party with experienced legal minds — including a former Attorney‑General among its leadership — would adopt a policy that appears to run counter to the Constitution’s clear provisions.
The document urges the NDC to review and abandon the indemnity and affidavit requirement without delay. Persisting with the policy, it says, would expose the party and its candidates to avoidable legal challenges and public ridicule, while distracting from core political objectives.
A path forward
The legal opinion does not dispute the party’s legitimate interest in promoting loyalty and discipline. But it makes clear that those interests must be pursued within the constitutional framework. Internal discipline can be enforced through party mechanisms that respect the limits set by Sections 68 and 109, rather than by attempting to legislate through affidavits that purport to bind elected officials beyond what the supreme law permits.
If the NDC is serious about both cohesion and the rule of law, the opinion concludes, it must scrap the indemnity form and align any disciplinary measures with the Constitution — or face litigation it is unlikely to win.
Bar Enemali E E ESQ
Writes from Abuja
