Run, Jonathan, Run; You Can!

Introduction 

The build-up to next year’s presidential election is fast assuming fever-pitch, at least, if trending news in traditional and social media is anything to go by. At the very top of these news items, is the speculation about the intention of former President Goodluck Jonathan to re-contest for that office. What is seemingly agitating commentators is the legality or constitutionality of that aspiration – if and when it manifests, and he declares. For now, ‘mum’ seems to be the word, as the man himself has merely asked his supporters to “watch out”. Given the eminence of some members of the “No” camp, it is worthwhile to interrogate their position and to wonder whether it is legally tenable, regardless of its motivation.

Overview

Prior to 2018, there was no express constitutional or legal bar to a former Vice-President who completed the aborted tenure of his principal, seeking re-election in his own right, for the full tenure of two four-year terms. See Section 136(1)(b) of the 1999 Constitution, which provides that “a person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections”. Few, if any, of those who canvass the ineligibility of former President Jonathan for next year’s polls seem to have averted their minds to this provision. 

On the contrary, all of them  base their positions on the Fourth Alteration to the Constitution which was assented to by President Muhammadu Buhari on 7th June, 2018. What was the amendment all about? It simply added a new Section 137(3), amongst others, to the Constitution, as follows:

“A person who was sworn-in as president to complete the term for which another person was elected shall not be elected to such office for more than a single term”.

President Jonathan’s Peculiar Position

In relation to former President Jonathan, the view of the nay-sayers is that, to the extent that he completed the death-aborted tenure of late President Umaru Musa Yar’adua, and having served a full four-year term himself between 2011 and 2015, this ‘new’ provision disqualifies him from seeking another four-year term. Are they right? 

I believe the answer will depend on the interpretation which is placed on the aforesaid provision. Is it prospective, in terms of applying to a future Vice-President who was elected after the 7th day of June, 2018 (when the amendment was assented to by President Buhari), and who assumes and completes the aborted tenure of a substantive President, or is it retrospective (or retroactive) and applies to a person – like former President Jonathan, who completed President Yar’adua’s aborted tenure in 2010 – a full eight years prior to the amendment? 

This is the crux of the matter. When does a law or Constitution (including their amendments or alterations) take effect? Can they apply retrospectively to affect vested rights which accrued prior to such amendments/alterations? That is the question. We shall get into that anon, but before that, let’s attempt an answer to the first poser. 

According to the Interpretation Act, Section 2:

“(1) An Act is passed when the President assents to the Bill for the Act, whether or not the Act then comes into force”;

“(2) Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, came into force –

(a) In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;

(b) In any other case, on the day when the enactment is made”

This would, however, have been relevant were the Amending Act in this case is silent on it’s commencement date. It is not. On the contrary, it clearly states on its face that it commences from the 7th day of June, 2018. This settles the matter, as no court even has the jurisdiction to construe it in any way other than in the light of its said commencement date.

The foregoing neatly dovetails into the settled legal position, that a statute is not to be given retrospective effect unless there are express provisions which justify such a construction. See OJOKOLOBO v ALAMU (1987) 3 NWLR pt. 61 pg. 377 at 396H, where the Supreme Court held that “It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms, or it only affects purely procedural matters and does not affect the rights of the parties”. 

In other words, as the Apex Court further held in AFOLABI v GOVERNOR OF OYO STATE (1985) 2 NWLR Pt. 9 Pg. 734, statutes are to be interpreted as only applying to cases or situations which come into existence after they were passed, unless a retrospective effect is clearly intended. A notable exception to this, however, are retrospective criminal statutes which are completely banned under Sections 4(9) and 36(8) of the Constitution.

If the rationes decidendi in the Ojokolobo and Afolabi cases are applied to Section 137(3) of the Constitution, the obvious question is whether, from it’s text, an intention to confer a retrospective effect on it is clearly expressed or can be reasonably inferred. I submit that, from an objective and dispassionate analysis of that provision, neither is the case. I submit that a contrary opinion would be to suggest that the amendment was specifically targeted at President Jonathan, with the intention of permanently barring him from standing for election as President. I believe that a more malevolent and diabolical legislative intention cannot be found in the annals of our constitutional history. Quite simply, it was not the case in respect of Section 137(3) of the Constitution. That notion is far-fetched and is a historical fallacy. President Jonathan was not the reason for including Section 137(3) into the Constitution. In other words, that provision is not retrospective, but, is rather prospective. 

Is Case Law Any Guide?

Directly? No. As previously opined, President Jonathan’s position is unique and unprecedented. However, by way of analogy, it is at least arguable that the express constitutional restriction of the ban on retrospective legislation to only criminal statues, ought not to be interpreted as prejudicing accrued rights which have vested under non-criminal provisions – such as those of former President Jonathan to seek a fresh four-year term – which accrued under the 1999 Constitution prior to its said 4th Alteration. I submit that such a construction would be grossly unfair, and would violate the right to equal protection of the law under Article 3(2) of the African Charter on Human and Peoples Rights. See N.N.P.C. v FAWEHINMI (1998) 7 NWLR Pt. 559 Pg. 698 at 616. 

In the circumstances, some have relied on certain decisions on other amended provisions of the Constitution which appear to have construed those provisions retrospectively. I believe they merely compare apples with oranges. As the late, great, jurist, Oputa, JSC, opined repeatedly, each case is only authority for what it actually decided and must, therefore, be cited in the light of it’s own peculiar facts. 

In this regard, I believe that if we construe the subject amendment in the light of the following decisions of our appellate courts, they will put it beyond argument that our position on the interpretation of Section 137(3) of the Constitution as amended (that is, that it is prospective and does not apply to President Jonathan) is the correct one. They include:

(i) “it is a cardinal principle for interpreting the provisions of the Constitution that where, in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them without resorting to any external aid”: ISHOLA v AJIBOYE (1994) 6 NWLR pt. 352 pg. 506 @ 565F;

(ii) A broad and liberal spirit should prevail in interpreting the provisions of the Constitution”. BRONIK MOTORS v WEMA BANK (1983) 14 NSCC 226 @ 240; 

(iii) “Any narrow interpretation of the provision (of the Constitution) will do violence to it, and will fail to achieve the goal set by the Constitution”: ATT-GEN OF ONDO STATE v ATT-GEN OF THE FED (2002) 6 S.C. 1 @ 28;

(iv) “where the words of the legislature are clear, there is no room for applying any of the principles of interpretation, which are merely presumptions in cases of ambiguity in the statute”: NATIONAL BANK v WEIDE & CO. (1996) 8 NWLR pt. 465 pg. 150 @ 165.

Conclusion

Seldom has the cliché – ‘all is fair in love and war’ been more apposite than in the run-up to next year’s presidential elections. The brick-bats have come (and are coming) thick and fast, with scant regard for factual and legal correctness. To his credit, President Jonathan has maintained a dignified near-silence, speaking only when it is absolutely necessary – and then, with his trademark civility. This is as it should be, and is commendable.

In the light of the foregoing judicial, statutory and constitutional authorities, I believe that only the most bigoted and self-opinionated opponent of the former President, will continue to insist that he is constitutionally-ineligible to vie for the highest office – either next year or in any other election cycle. I posit that the choice is solely his to make, and there is absolutely no legal or constitutional impediment or bar to him doing so. I suspect that some of those who peddle a contrary narrative, are motivated by less than altruistic considerations. Is anybody afraid of President Jonathan? That is the question.