The President of the Nigerian Bar Association (NBA), Afam Osigwe (SAN), has firmly stated that the Independent National Electoral Commission (INEC) lacks constitutional authority to declare the seat of any governor vacant on the basis of defection from one political party to another.
Osigwe’s clarification comes amid growing public debate following a call by Kenneth Okonkwo — a chieftain of the African Democratic Congress and Nollywood actor — urging INEC to declare the seat of Douye Diri, Governor of Bayelsa State, vacant.
Diri had on Wednesday resigned from the Peoples Democratic Party (PDP), the party on which he was elected in 2023, during an expanded State Executive Council meeting at the Government House in Yenagoa. The meeting was attended by the Speaker of the State House of Assembly, Abraham Ingobere, his deputy, Michael Ogbere, APGA Minority Leader Edward Brigidi and seven other lawmakers.
Explaining his decision, Diri said he was leaving the PDP for “obvious reasons.” His defection sparked widespread speculation about a likely move to the All Progressives Congress (APC), coming just a day after the Governor of Enugu State, Peter Mbah, and three House of Representatives members also dumped the PDP for the APC.
Okonkwo, in a post on his Instagram page, argued that by resigning from the PDP without belonging to another party, Diri had automatically vacated his seat. Citing Section 177(c) of the 1999 Constitution (as amended), he maintained that a person can only hold the office of governor if they are “a member of a political party and are sponsored by that political party.” He subsequently called on INEC to declare the seat vacant and conduct a fresh election within 90 days.
However, Osigwe dismissed the argument as “baseless and unconstitutional,” stressing that neither the Constitution nor judicial precedent grants INEC or any authority the power to remove an elected member of the executive — including the president, vice president, governors, or deputy governors — over party defection.
He referenced the landmark Supreme Court decision in Atiku v. Attorney-General of the Federation, which arose after Atiku Abubakar defected from the PDP to the Action Congress in 2006 while serving as Vice President under Olusegun Obasanjo.
“The president at the time sought to declare Atiku’s office vacant, but the Supreme Court made it clear that the constitutional provision on loss of seat due to defection applies only to legislators — not members of the executive,” Osigwe explained.
He expressed concern that the matter was still being misinterpreted nearly two decades after the apex court’s ruling.
“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 stated.
Osigwe called on Nigerians and political commentators to stop “wasting judicial and journalistic time” on issues already resolved by the courts, insisting that the constitutional position “is clear and unambiguous.”
