Recently, the news media, both electronic and print,had been agog on whether Dr. Goodluck Jonathan, the erstwhile President of the Federal Republic of Nigeria is qualified or not to contest for the office of the president by virtue of the fact that he had earlier occupied the office for a period of five (5) years. I did not want to intervene in the debate over the constitutional competence of the former President Goodluck Jonathan to contest in the 2023 presidential election because the entire debate was based on speculation. I thought that it was an academic exercise that ought to divert the attention of the nation from the preparation for the 2023 General Elections. But in view of the fact that Dr. Jonathan has turned round to reject the N100 million nomination form of the All Progressive Congress (APC) purchased for him by an Almajari group and gone ahead to decamp from the People’s Democratic Party to the ruling party the competence of the former President to contest the election has become a live issue. Hence, my humble contribution to the debate.
WHAT DOES THE LAW SAY?
By the provision of Section 137(1) (b) of the 1999 constitution of the Federal Republic of Nigeria, no person shall be allowed for the office of the President for more than a period of two terms, that is, 8 yeas cumulative of 4 years each. It is on record that Goodluck Ebele Jonathan was sworn in as the Vice-President of the Federal Republic of Nigeria on the 29th day of May, 2007, and he remained so until 2010 when he took the oath of office as the President of the Federal Republic of Nigeria. The problem here is, can the oath he took in 2010 as the substantive president after the death of his boss, late Alhaji Umaru Musa Yar’Adua be deemed to affect his right to contest for another term of 4 years? To answer this question, we have to look at the relevant laws, especially Section 137 (1) (b) of the constitution which provides;
“A person shall not be qualified for election to the office of the President if he has been elected to such office at any two previous elections”
A cursory look at this provision would reveal that a person is qualified to contest twice for a tenure of 4 years of two terms. However, since Jonathan completed the unexpired tenure of Yar’Adua in 2010, can he still contest for another term of four years since he had already spent a cumulative period of 5 years? This is the puzzle. To answer this poser, it is pertinent to examine the provisions of the Constitution for and against his qualification?
WHY IS HE NOT QUALIFIED?
According to the proponent of his disqualification, Jonathan is not qualified because by virtue of Section 137(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, no one can spend more than 4 years of two terms, making 8 years. For the sake of clarity and completeness, Section 137(3) of the constitution provides: “A⁷ person who was sworn to complete the term for which another person was elected as President, shall not be elected to such office for more than a single term”.
Based on the above provision, the contenders of this proposition believes that the law in this regard will take a retrospective effect and therefore, Jonathan is not qualified at all to contest again and spend another period of 4 years, giving him a total of 9 years as a whole.
WHAT MAKES HIM QUALIFIED?
The proponents of the contention that Jonathan is qualified have contended that Section 137(3) of the Fourth Alteration to the 1999 Constitution does not apply because it contradicts the provision of Section 141 of the Electoral Act, 2010, as amended and Section 285(13) of the 1999 Constitution. For ease of reference, Section 141 of the Electoral Act provides: “An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all stages of the said election”.
On the other hand, Section 285(13) provides: “An election tribunal shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election”. In addition, those who believe that Jonathan is qualified to run for Presidency again hinged their contention on the decision of the Court of Appeal in Cypriacus Njoku v. Goodluck Ebele Jonathan (2015) LPELR – 244496 CA, where it was held that Dr Jonathan had only taken the Oath of Office once and that he had not been elected twice. That disqualification under Section 137(1) (b) of the Constitution is through election and not through oath taking and that upon the demise of the president, the vice President automatically steps in to occupy the office of the President by virtue of Section 146 of the 1999 Constitution. It is also believed and fiercely contested by these people that Section 137(3) of the Constitution cannot apply retrospectively and be used to disqualify Jonathan from contesting for President.
WHAT DOES THE LAW SAY?
Shorn of all irrelevancies, the number of years a person can occupy the office of the President in Nigeria has been specified expressly in Section 135(1) and (2) of the 1999 Constitution to be four (4) years term twice which is 8 years cumulatively. In other words, no person shall be allowed a day longer in the computation of such tenure. See Marwa & Anor v. Nyako & 9 ors (2012) 1 S.C (pt. 111) 44 at 81 – 82, where the apex court stated thus: “I have also found and held that from the totality of the relevant provisions of the 1999 Constitution including Sections 180(1), (2)&(3) and 182(1)(b), a person first elected as Governor of a State shall vacate his office at the expiration of a period of four years commencing from the date he took the oath of allegiance and oath of office though he could be re-elected for another term of four years giving him a maximum two tenures of eight years.
It is very clear from the relevant provisions that no person elected under the 1999 Constitution can remain in that office for a day longer than as provided otherwise the intention of the framers of the Constitution would be defeated. If the interpretation favoured by the Respondents is adopted and the four years tenure is to be calculated from the second oaths taken in 2008 while in fact and law the 1st Respondents took oaths of allegiance and of office on 29th May, 2007, and remained and functioned in office as Governors of their various states would their period not exceed the constitutionally provided tenure of four years? The answer is clearly in the positive hence, the argument on the principles of null and void acts. In assigning four years to the tenure of the State Governors and the President too – did the 1999 Constitution envisage a nullified election affecting the four years tenure assigned by it? I think not.”
Therefore, going by this authority which was based on the interpretation of Section 180 of the 1999 Constitution which deals with the tenure of office of the state Governors but which section is in
pari materia with Section 135 of the 1999 constitution of the Federal Republic of Nigeria. It is agreed by all the contenders for and against the qualification of Jonathan to contest for the office of the President, that Dr Jonathan spent one year out of the unexpired tenure of his late boss, Alhaji Umaru Musa Yar’Adua in 2010 and thereafter, won election in 2015 to the office of the President.
The question to ask is; in computing the 8 years tenure permitted by the law, should the one year spent in 2010 to 2011 be included or excluded in the computation? This is the hard nut to crack and seeming confusion. However, in all honesty, I submit most respectfully that the one year ought to and will be in lcluded in the computation of his two term tenure of 8 years under Section 135 of the Constitution. To do otherwise will mean that Jonathan can spend another four (4) years term which will make the total number of years he would spend as a President to be nine years. This certainly cannot be the intention of the framers of the Constitution because if these were so, then the intention of the legislators and the objects they seek to achieve would have been defeated. See Ugwu v. Ararume (2007) 12 NWLR (pt. 1048) 367 at 498, where the Supreme Court held that: “A statute, it is always said, is “the will of the legislatures” and any document which is presented to it as a statute is an authentic expression of the legislative’s will. The function of the court is to interpret that document according to the intent of those who made it. Thus, the court declares the intention of the legislative.”
Based on the above, it is my submission that the intention of the legislature with regards to Section 135 of the constitution is that 8 years and only 8 years without a day is permitted for a person to occupy the office of a President. What is more? The Constitution in Section 137 (3) provides that “A person who was sworn in to complete the term for which another person was elected as President shall not be elected to such office for more than a single term”.
Therefore, by this provision, it is evidently clear that where a person has been sworn in to complete the tenure of another person who had earlier occupied that office but for one reason or the other could not complete his tenure, then he can only contest for a single term of 4 years again. Thus, this is the sledgehammer that disqualifies Jonathan from contesting. Although, those who believe that he is still qualified to contest for the office had argued that Section 137(3) which came into force in 2018, that is, 3 years after Jonathan had left office cannot apply retroactively. They also rely on the decision of the Court of Appeal in Njoku v. Ebele Jonathan (supra).
It is submitted that the provision of the Constitution can sometimes apply retrospectively. This is sometimes so to avoid defeating the very essence of the law made by the legislature. See Ojokolobo v. Alamu (1987) 3 NWLR (pt. 61) 377. In Amadi v. INEC (2013) 4 NWLR (pt. 1345) 595 at 631, the Supreme Court in interpreting the provision of Section 285 (7) of the 1999 constitution which provides for a time frame to hear appeals from an election tribunal, had this to say: “The conspicuous effect of a limitation law is that legal proceedings cannot be properly validly instituted after the expiration of the prescribed period. Also, the court is divested of its jurisdiction in the matter as it is no longer a live issue. It is dead in substance and in form. In the instant case, the Court of Appeal was under a statutory obligation and duty to hear and determine the appellant’s appeal before it within the time prescribed by Section 285 (7) of the 1999 Constitution as amended. Once an appeal before it comes outside that time, the court is devoid of jurisdiction to hear it. See Osun State Government v. Dalami (Nig.) Ltd (2007) 9 NWLR (pt. 1038) 66; Chigbu v. Tonimas (Nig.) Ltd (2006) 9 NWLR (pt. 984) 189; Shettima v. Goni (2011) 18 NWLR (pt. 1279) 413; PDP v. CPC (2011) 17 NWLR (1277) 485 referred to)”.
Also, in Obayemi Toyin v. Musa (2019) 9 NWLR (pt. 1676) 222 at 46, the Supreme Court had this to say:
“It is quite evident from the provision set out above that it is the intention of the legislature to bring an end to the current state of affairs where pre-election matters linger in the court’s dockets far beyond the election to which they relate and in some cases, up to the end of the tenure of office in issue. It is settled law that while the relevant law applicable to a cause of action is the law in force at the time the cause of action arose, the jurisdiction of the court to entertain an action is determined by the state of the law conferring jurisdiction at the time the action is instituted and heard”. See also, Toyin v. PDP (2019) 9 NWLR (Pt. 1676) 50.
Relying on the above dictum of the apex court, it is submitted that the court will have no jurisdiction to extend the tenure of someone who had already spent 5 years out of 8 years permitted by law. This is because the cause of action in this matter for Jonathan was from 2010 when he became President by default or by happenstance to this day when he plans to vie for the office of the President again for another four (4) years. By the prevailing law, the court will have no jurisdiction to extend his tenure by another 4 years by virtue of Section 137 (3) of the constitution which is the law in force now when his right to contest again is being asserted. To appreciate this point, it is necessary to define the term ‘cause of action’. A cause of action is the aggregate of facts, which if put together, will constitute a legal right upon which an action can be founded. Thus, in Thomas v. Olufosoye (1986) NWLR (P.t 18) 66 at 671, a cause of action was defined by the Supreme Court to;
“Comprise every fact which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court”.
Arising from the foregoing, the right of Jonathan to vie for the office of the President can only be determined with reference to his first and second occupation of the office in 2010- 2011 and 2011-2015. That being so, since it will be impossible for Jonathan to assert his right to contest for the office, without having recourse to his past occupation of the office in 2010-2015, it will be preposterous for anyone to suppose that he can still contest again since Section 137(3) only came into effect in 2018. This will definitely produce an absurd situation and cause violence to the provision of the law. See Ishola v. Ajiboye (1994) 7-8 SCNJ (pt.1) 1 at 35, where the apex court stated that constitutional language is to be given a reasonable construction, and absurd consequences are to be avoided.
On Section 137(3) having a retroactive effect, it is submitted that, such is the intendment of the legislators in the making of the fourth alteration and for those who said no law can be made to apply retrospectively, they are dead wrong as such is not new to our jurisprudence. Thus, in Adesanoye v. Adewole (2016) 14 NWLR (pt.1000) 242, the court held that section 4 of the extant constitution empowers the National Assembly to make laws with retrospective effect and that such laws are, generally not unconstitutional; the courts have the vires to question such statute on the presumption that courts lean against construing statutes with retrospective effect if the statute purports to affect existing rights; and THAT WHEN THE LEGISLATURE ENACTS A STATUTE WITH RETROSPECTIVE EFFECT AND STATES so in clear terms, the courts respect and give effect to such legislative intent. Also, in Afolabi v. Governor of Oyo State (1985) 2 NWLR (pt.9) 734, the Supreme Court held that no statute shall be construed to have retrospective operation UNLESS SUCH CONSTRUCTION APPEARS VERY CLEARLY IN THE PROVISION OF THE STATUTE, ARISING THEREFROM BY NECESSARY AND DISTINCT IMPLICATION.
It goes without saying therefore that by necessary implication, the provision of Section 137 (3) of the 1999 Constitution is to apply retroactively. This is so because on the authority of Marwa v. Nyako (supra) at p.g 81-82, it was held that: “it is very clear from the relevant provisions that no person elected under the 1999 constitution can remain in that office for a day longer than provided otherwise the intention of the framers of the constitution would be defeated”.
Similarly, in the recent decisions of the Supreme Court in Kusamotu v. A.P.C (2019) 7 NWLR (pt.1670) 57 at 62, the Supreme Court held thus: “Certainly, it is a very legitimate concern that courts frown on retrospective legislation which they consider to particularly impinge upon the concept of fair hearing. Being dutifully aware of the doctrine of separation of powers, however, the courts have always recognized the overriding constitutional function of the legislature to make and amend laws including their revocation. The courts limit themselves to the task of interpreting the laws, amendments or revocation to give effect to the intention of the legislature. Thus, WHERE THE INTENTION IS CLEAR AND UNAMBIGUOUS, THE COURTS HAVE ALWAYS INTERPRETED THE PROVISION OF THE LEGISLATURE TO REFLECT SUCH INTENTION”.
Considering the totality of the dicta of the courts in the cases of Kusamotu v. APC (supra), Afolabi v. Governor of Oyo State (supra), and Adesanoye v. Adewole (supra), it is very clear that those contending that Jonathan is qualified to contest again because Section 137(3) cannot apply retroactively are not talking law because the Supreme Court in all those cases, engaged in the interpretation of the law retrospectively though such interpretation is seldom resulted to and it is always frowned at. For a better understanding of the retrospective principle under our law, we need to look at the provision of section 135A of the amended constitution which provides;
“in the determination of the four year term, where a rerun election has taken place and the person earlier sworn in wins the rerun election, the time spent in the office before the date the election was annulled, shall be taken into account’’. A close look and understanding of the above provision will show that the law has a retroactive effect here. This is because an Election that has just been won is said to take effect from the past tenure the same token, the period of one year earlier spent by Jonathan must be inclined in the computation of his 8 years entitled to. Therefore, he is not qualify to contest in that if he wins, he would have spent 9 years at the end of the new Election, which is against the spirit of the constitution. Also, looking at the decisions of our apex court in the cases of Toyin v Musa supra, Toyin v. PDP supra, Kusamotu v APC supra and a host of other cases in that class,there is no disputations or untenable argument that the court by those decisions shut out the Appellants by not listening to them or allowing them to ventilate their grievances, thereby denying them their sacrosanct right to fair hearing. The question to then ask is; with that denial,has the law not been applied retrospectively to wipe out their rights? Even if the non existent dichotomy between Procedural Law and Substantive Law being parotted by some is to be real,can a procedural law made only for guidance and aid in the dispensation of justice take a center stage and slaughter justice or rights conferred by statute on the basis of flouting procedural law? I submit that doing so will be suicidal and detrimental to the development of the law. That being so,it will be preposterous to commonsensical reasoning to now argue that a law that exterminate the vested rights of people in this way is not retrospective.
Another point that has been made by the Jonathan can run group of lawyers is that the case of Njoku v. Jonathan (supra) was decided by a full panel of the Court of Appeal. It is needless repeating the obvious that a full panel of the court is not different from ordinary panel and the authorities are many to that effect. It is submitted that the case no longer bears any relevance to the issue at stake in view of the later provision of Section 137(3) of the constitution.
That apart, another surprising contention of the proponents is that Section 137(3) of the Constitution contradicts Section 141 of the Electoral Act which stipulates that no person shall be declared a winner of an election if he had not fully participated in all the stages of the election. What a ludicrous argument because it should have been the other way round. That is, other laws read in obedience to the constitution and not the constitution in obedience to the Electoral Act. This is because by Section 1(3) of the 1999 Constitution, the Constitution is superior to every other law of the land. See Musa v. INEC (pt.921).
The proponents have also argued profusely that because Jonathan was not voted for in 2010, he could not have been affected by Section 137(3) of the 1999 Constitution. To this, we submit that the relevant point to consider is not whether he was voted for but whether he occupied the office of the President and whether he took the oath of office before such occupation and the answer is in the affirmative.
Therefore, having taken the oath of office and oath of allegiance as well as carried out the duties and functions of the President under the law, he is deemed to have duly occupied the office for the period and in computing his 8 years under the constitution, the 5 years earlier spent will be included. This is so because by law, it is permissible for him to spend less than 8 years but he cannot spend more. See Marwa v. Nyako (supra) at 72, there the apex court held: “From the language used in Section 180 (similar to Section 135) of the 1999 constitution, it is very clear that the constitution intended that a Governor of a State shall have a tenure of four years from the date he took the oaths of allegiance and of office and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a Governor has a maximum tenure of eight (8) years under the 1999 constitution”.
This apart, it is instructive to note that contrary to the contention of these lawyers that the period Jonathan occupied the office of President, he was not elected and so, the period cannot be computed since he merely completed the unexpired term of the person last elected. It is submitted that the constitution in Section 135(2) (b), which provides that “in any other case, the person last elected to that office under this constitution took the oath of allegiance and oath of office or would, but for his death, have taken such oaths” recognizes the fact that a person elected may die before taking the oath of office or after taking the oath of office. Therefore, anyone who took over from him would have the tenure reckoned with in computing the 8 years when issue on such arises.
Also, there is a world of difference in the import of Section 141 of the Electoral Act and Section 285(13) of the 1999 constitution, which are same both in letter and spirit to what happened when Jonathan took over pursuant to Section 146 of the 1999 constitution due to the death of the President in 2010. He became the President by operation of the law as against by a declaration with the spirit of the law to avoid alternative interpretation that will be absurd or contradict the intent of the lawmakers. See A.T Ltd v. A.D.H Ltd (2007) 15 NWLR (pt.1056) 118 at 166-167, where the court stated that: “it is settled principle of law that where a Court is faced with alternatives in the course of interpreting the constitution or statute, the alternative construction that is consistent with smooth running of the system shall prevail”. See also Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 617 at 579.
On the whole, it is my submission that to hold that Section 137(3) of the constitution will not apply to Jonathan will do violence to the spirit and object of the legislation. This is because in making law and in interpreting them, recourse must be had to background and history as well as the mischief inherent in the law which the new law seeks to remedy. See the case of Archbishop Okojie v. A.G Lagos State (1981) 2 NCLR 337 at 340-350, where the Federal Court of Appeal held that: “while in an ordinary statute, the normal rule is that the terms used must be given the meaning they bore at the passing of the statute (see Trustee of Clyde Navigation v. Lairo 8 App. Cases 673) a constitution is intended to be permanent and must be interpreted by looking at the past and according to present conditions in order to fulfil the object and true intent of the constitution. A constitution must therefore be interpreted and applied liberally. A constitution must always be considered in such a way that it protects what it sets out to protect or guide what it sets out to guide. By its very nature and by necessity, a constitutional document must be interpreted broadly in order not to defeat the clear intention of the framers”.
In effect, the reason for enacting Section 137(3) of the constitution is to cure the mischief in the laws and apply the remedy by not allowing any person to stay in executive office more than the maximum limit of 8 years. Therefore, any interpretation different from this will be defeating, and I so submit.
On the whole, my strong advice to the APC and PDP is to avoid the dangerous temptation of fielding Jonathan as its candidate in order to avoid obvious negative consequences because both in law and morality, he is highly unqualified to contest. I shall therefore end this piece with the admonition of the Holy Prophet Mohammed (SAW) in the third Hadith of Alnawawi when advising Muslims in the act of doing good, he exhort people to avoid doing anything they have doubting mind whether it is a sin or not, to doing and adopting what they are certain are not sinful if they do them. In effect, APC and PDP should shop for a candidate without question mark like Jonathan, a fortiori, constitutional disability or disqualification, it is safer and more reliable. A word is enough for the wise. To this end, I ring up the curtain.
Kabir Akingbolu, Human Rights Activist and Public Analyst writes from Lagos.