2023 and Jonathan: Between Legality and Regional Interest

Introduction 

Last Thursday, I watched an interesting episode of Channels TV’s Politics Today which featured learned Senior Advocate, Femi Falana. Two topics of discussion that drew my attention, were the issue of former President Goodluck Jonathan vying for office of the President of Nigeria in 2023, and the ongoing debate on the nullification Section 84(12) of the Electoral Act 2022. I will only make a brief comment on the nullification, since I already discussed it a few weeks ago. 

The Learned Senior Advocate mentioned that the Court of Appeal had stayed the declaratory judgement of Anyadike J. nullifying Section 84(12). The Court of Appeal had ordered the AGF, not to execute the judgement. But, it is trite law that a declaratory judgement cannot be stayed. The declaration itself is the relief, and in this case, the declaration was self-executory and requires no further execution by anyone. See the Supreme Court cases of Gongola State v Tukur 1989 4 N.W.L.R. Part 117 Page 592 per Oputa JSC; Okoya v Santilli 1990 2 N.W.L.R. Part 131 Page 172 per Nnamani & Agbaje JJSC.

The More You Look, the Less You See!

In Nigerian politics of today, “the more you look, the less you see!”. Before I address the constitutionality or otherwise of whether or not former President Goodluck Jonathan can run for the office of President in another election, particularly the upcoming 2023 election having finished late President Yar’Adua’s term and completed an additional single term, permit me to state the same fact again at the risk of sounding like ‘Cacofonix’, and repeat for the umpteenth time that the primary purpose of the successive governments of the Fourth Republic, is to serve and promote the private, selfish interests of politicians, especially those in office, and not to promote the security and welfare of Nigerians (Section 14 (2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution)). Their purpose is not particularly for our good or benefit nor is it for the progress of the country, unless they happen to coincide. 

President Jonathan, the Beautiful Bride

If not, the issue of President Jonathan running for office again would not even arise. Was he not the same person who was vilified by many for allegedly running one of the most corrupt governments in the history of Nigeria, which is said to have plundered and looted Nigeria’s treasury? In the seven years of President Buhari’s APC administration, this message has also been repeated like a broken record, especially as being one of the main excuses for its own failures.

So, what has happened or changed all of a sudden, to make President Jonathan, hitherto berated, a ‘beautiful bride’, so much so that some are clamouring for his return as President come 2023? Really? Is Nigeria suffering from such a paucity of credible, capable people, that we must continue to recycle many of those who are responsible for plunging us into this dark abyss of pain, suffering and failure? To make the clamour for him more ridiculous, it is not coming from President Jonathan’s own political party, PDP, who do not even seem to be considering him as a possible flag bearer, but from the direction of the opposition APC that has had nothing good to say about him for the past seven years. Is it because, as is being speculated with all the North/South zoning saga, that if he runs for President and wins, President Jonathan will only be able to do one more four year term, and the baton will happily return to the Northern zones in 2027?! If you have other plausible reasons for why some members of the APC are asking President Jonathan to run in 2023, my dear readers, kindly, share them. I am curious to know why. I know we can safely conclude that, the reason is not because of the superb governance skills displayed by him and his government during their tenure in office!

Analysis

But, be that as it may, the law is the law. Section 137 of the Constitution provides for the disqualifications that make an individual ineligible for election to the office of President, the most obvious being if such a person has been elected as President at any two previous elections (Section 137(1)(b)). In my opinion, the meaning of this is clear enough; that if I run and I’m elected as President in 2003 & 2007 or 2003 & 2011, then I cannot run again. However, where I differ from Learned Silk, Mr Falana, is where he imputed the period of eight years into this provision. Yes, we know that each tenure is four years (Section 135(2) of the Constitution) and so two complete tenures would be a total of eight years, but Section 137(1)(b) limits itself to the number of elections that a candidate is elected as President, without any mention of a period of time.

Section 137(3) of the Constitution which is an amendment inserted by the Fourth Alteration of Section 137 No. 16 of 2017, disqualifies from being elected as President for more than a single term: “A person who was sworn in as President to complete the term for which another person was elected as President….”. 

Again, we see the imperfection of the Constitution. Before I go into the issue of whether the said provision can be retrospective as argued by the Learned Silk based on several authorities which he cited, my first submission is that, in the case of President Jonathan the provisions of Section 137 (1)(b) & (3) of the Constitution are somewhat contradictory. Jonathan was elected as President only once; so by virtue of Section 137(1)(b) he is not disqualified from running for the office of President. But, he was sworn in and finished the term of late President Umaru Yar’Adua who unfortunately passed away in May 2010 (or so Nigerians were told), and then ran for the office of the President in 2011 and won. An individual in President Jonathan’s shoes after the Section 137(3) amendment was enacted, would definitely be ineligible to run for the office of the President for a second term. However, my second submission is that completing President Yar’Adua’s term, cannot be said to be Jonathan being elected as President. He was elected with President Yar’Adua, as his running mate/Vice President.

The Section 137(3) amendment is dated 2017, seven years after President Jonathan completed his predecessor’s term and two years after he completed the only tenure that he was elected as President. How can we then apply this provision to him? Section 2(2) of the Interpretation Act 2004 (IA) provides that, where there isn’t any provision as to the time a particular enactment is to come into force, it will take effect either when the enactment was made or on the day it is passed. But, this is not the case with Section 137(3), which states that it came into force on June 7, 2018; it was not in existence between 2010 and 2015.

Section 146(1) of the Constitution provides that the Vice President ‘shall’ hold the office of the President if inter alia, the office of President becomes vacant by reason of death. In Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 Page 367 at 441-442 per Niki Tobi JSC, the Supreme Court held that when the word “shall” is imputed into a statutory provision, it imports that a thing must be done, and when the negative phrase “shall not” is used, it implies that something must not be done. It is a form of command or mandate. So, when some high ranking Northern members of the PDP agitated that since it was still the turn of the North to hold the office of President, a Northerner should replace Yar’Adua, many legal experts saw it as constitutional blasphemy, and denounced such a suggestion as heresy in view of Section 146(1). 

But, the question is, had this new amendment of Section 137(3) been in place in 2010, would Jonathan have taken up Yar’Adua’s mantle, knowing that he would want to complete two terms as President, and finishing his predecessor’s term would limit him to a single term? Most people, even those who initially stated that they would do one term in office, decided to have a second and even wanted a third term, or everlasting term like late Robert Mugabe of Zimbabwe! Well, apart from the one and only, Nelson Mandela of blessed memory. Jonathan may have chosen the option to resign instead of completing Yar’Adua’s term if he was aware of this limitation, because we see that prior to 2017, he ran in the elections in 2011 & 2015 meaning that he did want to do two terms. And, if he had chosen to resign instead, there wouldn’t have been a vacuum, because in a situation where the position of President and Vice are vacant, Section 146(2) of the Constitution empowers the President of the Senate to hold the office of President for a period not exceeding three months, during which there will be an election of a new President who shall hold office for the unexpired term of office of the last holder of the office. This further buttresses the point that the term actually belongs to the original owner, whose office became vacant by reason of death, and not the substitute who completes it.

For a Constitution that states in its preamble that it is based on principles of equity and justice, my third submission is that, to seek to interpret this provision to mean that it has a retrospective effect thereby preventing President Jonathan from running for a second term, would not only be unjust, but be imputing the wrong meaning into the provision as far as Jonathan is concerned. The only rule of interpretation required here, is the literal rule, as Section 137(3), its commencement date and meaning are crystal clear.

As for the authorities which Learned Silk, Femi Falana based his position that President Jonathan is ineligible to run again, the facts of the cases are not on all fours with this situation. He cited Obayemi Toyin v Arogundade Samuel Musa & 3 Ors (judgement delivered by the Supreme Court on 18/1/19) and its sister case, Obayemi Toyin v PDP & Ors SC.308/2018 LOR (18/1/19) SC. But, in the judgement delivered in the latter case, the Supreme Court relied on its earlier decision in Adesanoye v Adewole 2006 14 N.W.L.R. Part 1000 Page 253 where it held that Section 4 of the Constitution empowers the National Assembly (NASS) to make laws with retrospective effect and that such laws are generally not unconstitutional, but it should be stated in clear terms that the law is retrospective. The said Section 137(3) of the Constitution does not state that it is retrospective; and according to the Supreme Court, it is only when it is stated in clear terms that the statute has a retrospective effect, that courts can respect and give effect to such legislative intent. Such intent is absent from Section 137(3). 

However, even earlier, in Afolabi v Governor, Oyo State 1985 2 N.W.L.R. Part 9 Page 734 the Apex Court held that no statute shall be construed to have retrospective operation, unless such operation appears very clearly in the provisions of the statute; that retrospective laws are prima facie questionable policy, and contrary to the general principle that legislation shall not have retrospective effect; that courts lean against interpreting a statute to deprive a party of an accrued right. I further submit that giving Section 137(3) of the Constitution a retrospective effect, would deprive President Jonathan of his accrued right. In Olaniyi v Aroyehun 1991 5 N.W.L.R. Part 194 Page 652 the Supreme Court held that a construction like other statutes operates prospectively and not retrospectively, unless expressly provided to be otherwise. My final submission is that Section 137(3) of the Constitution does not provide otherwise, and must therefore operate prospectively. It can only affect those who complete another’s term, after June 7, 2018.

Conclusion 

Constitutionally speaking, there is no bar to President Jonathan running for election as President once again; it still remains his right. Whether he should run though, is another matter entirely. It seems as if Section 137(3) may discourage any Vice President who is nursing a presidential ambition from assuming the President’s office should it become vacant, unless of course it becomes vacant two or three years before the expiration of the tenure; so that, if such person has the option of only one more term, he/she will still end up doing a total of at least six or seven years, just marginally less than the constitutionally provided maximum of two complete tenures.