Is President Goodluck Jonathan Qualified To Contest For The Office Of The President Of The Federal Republic Of Nigeria Again Under The 1999 Constitution As Amended? By JIBRIN SAMUEL OKUTEPA

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There are debates now whether former President of Nigeria, President Goodluck Ebele Azikiwe Jonathan can run or contest the 2023 presidential elections in Nigeria.These debates are not new. This is because on the 4th of September 2013, I had raised the question of the qualification and or eligibility of President Jonathan to contest the 2015 general elections. This view was published in the Nation Newspapers of Tuesday, 10th of September 2013 at page 34 thereof.

This is what I said then .”There has been debates and arguments that president Goodluck Ebele Jonathan, is or is not qualified to seek reelection in 2015. Understandingly some people from the South South Zone of Nigeria, where our dear president comes from have been at the forefront of the agitation that the president must run in 2015. They argued forcefully that their dear son must be allowed to do two terms of eight years , perhaps like President Obansajo. Others have argued that the president is not qualified to run in 2015 on so many variables principal amongst which is the constitution. Because I come from a minority like Mr President I would have love to support arguments that Mr president be allowed to run or that Mr president should run for election in 2015, if God spares him as I pray he does. But can president Goodluck Ebele Jonathan run in 2015 presidential elections. My humble view is that he cannot and he will be constitutionally barred,unless of course,the 1999 constitution is further amended to accommodate that ambition if he has the ambition. There is no doubt that by the provision of the 1999 constitution as amended, Nigerian president can only spend a maximum of eight years in office. That is why section 137 (1) (b) of the 1999 Constitution as amended provides that a person elected to the office of the president at any time for two previous elections shall not be qualified for subsequent election as president of Nigeria. There is no dispute that in 2007, president Goodluck Ebele Jonathan was elected as Vice president of the Federal Republic of Nigeria on the joint ticket with late president Umaru Musa Ya,Adua. Upon the death of President Umaru Musa Ya’Adua, president Goodluck Ebele Jonathan was sworn in as president. My humble view is that the election of 2007 was the first election of President Goodluck Ebele Jonathan, because even though elected as Vice President, he was elected as president because in the absence of the president, he becomes the president on the basis of the election that brought him and the late president to the office. See S.146(1) of the Constitution. That the president Jonathan contested the election of 2007 and won into the office of vice president and who was in the same shoes with the president is not in dispute. See section 142(1) of the 1999 constitution as amended. It is clear from the provisions of section 142(1) and (2) of the said constitution that no person can be duly nominated to the office of the president unless he nominates a person who is qualified to be president like him. The implication is clear. A person contesting the office of vice president is by implication contesting the office of the president. He automatically becomes the president if any of the factors set out in the constitution in section 146 of the constitution occurs. This point was underscored by the Supreme Court in PDP vs INEC (1999) 7SCNJ 297. The facts of that case was that Alhaji Atiku Abubakar stood election to the office of the Governor of Adamawa State. He nominated Mr Bonnie Haruna as his running mate. They won the election as governor and deputy governor respectively. Before they could be sworn in, Alhaji Atiku Abubakar became vice presidential candidate to General Obansajo. INEC held the view that since they were not sworn in the Deputy Governor elect could not been sworn in as Governor of Adamawa State. The Supreme Court held otherwise and Mr Bonnie Haruna was subsequently sworn in as Governor of Adamawa State. Section 137(1) ( b) of the Constitution, is impari materia with S.182(1) (b) of the same constitution interpreted by the Supreme Court in Marwa vs Nyako & ors, (2012) 6 NWLR (pt.1296) 200 at 310-311, judgment/decision in consolidated appeals delivered on the 27th January 2012, where the Supreme Court held that:

“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 when 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 of two tenures of eight years”

In the same case the Supreme Court held at 286 that : time fixed by the constitution for doing anything cannot be extended. It is immutable,fixed like the rock of Gilbratar. It cannot be extended,elongated,expanded or stretched beyond what it states”.

There is doubt that President Jonathan spent two years in office as president following his election in 2007 as vice president cum the president of Nigeria as a result of the death of the then president. He was also elected president in 2011 and sworn in. Mr President has thus been elected to the office of the president on two previous elections and has taken two oaths of office and allegiance as president of Nigeria. The intention of the makers of our constitution is that we should not have any person however eminently qualified to serve in the office of president or governor for more than two terms of 8years. The Supreme court spoke so in Marwa vs Nyako supra. The question then is if Mr president makes himself available for the 2015 election and he wins and there is no doubt he will using power of incumbency and Nigerian factors in winning election, will he step down after two years. If not he would have spent 10 years in office under the 1999 constitution contrary to the provisions that provide for 8years maximum. The argument that Mr president is doing well is beside the point. The Constitution is the grundnorm. Any ambition that will violate Nigerian constitution must be discouraged by all. Those who speak in favour of Mr President running are no doubt doing so because our constitution has given every one the freedom of expression, but in the exercise of that freedom we must do so within the parameter of constitutionality. To argue that the two years spent by Mr President is not his term but the tenure of late President Musa Yar’Adua is an argument that flies in the face of logic and constitution. There is the principle of constitutional construction and it is this that the primary purpose of constitutional interpretation is to find out the purpose for which the framers of the constitution sought to achieve by the provisions in the constitution. The intention of the Framers of our constitution is that no one Nigerian however eminent qualified should be in the office of the president or governor for more than 8years maximum. The framers also know that the president or governor may die and can die in office and the vice president and deputy governor as the case may be has to take over. I hold the view that if the draftsmen of our constitution had intended that the reminder of the tenure being completed by the vice president now president or deputy governor as the case may be should not be part of the tenure of 8 years when they win elections on their own, the constitution would have said so. In order words it is my submission that in the circumstances of this case there is no amount of political gymnastics that can make it constitutional for President Jonathan to run for 2015, even if he has performed creditably well, which is outside the purview of this discourse. Dahiru Musdapher JSC as he then was summed it up beautifully in this way when he was contributing in judgment on the purpose of 8years tenure in our constitution. This is what the learned jurist said: if I may briefly explain supposing like Dr Chris Ngige a person elected as governor holds office for 3years before the election is nullified, he contests the rerun election and wins it and resumes office for another two years, when the electoral tribunal again nullified the election and again ordered a fresh election which he wins again, it would mean that the person would have spent 3,2 plus another 4 years thus making it 9 or take it a step further it may mean he could continue ad infinitum. Clearly this is not the situation the constitution has intended. It has only created a tenure of 4 years and no more. See Marwa vs Nyako supra at 294.

My humble view therefore is that if president Jonathan seeks re-election in 2015, and he wins as he is likely to,he would have been elected into that office more than two terms of four years. I humbly submit that president Jonathan is constitutionally barred from contesting the 2015 election unless the constitution is deliberately amended to accommodate him”.

This was the view I held in 2013.I have no reason to depart from it. Rather, I like my leaned brother silk, Femi Falana, SAN and many other legal minds hold this view very strongly on the basis of constitutional provisions and binding pronouncements of the Supreme Court.When I expressed this view in 2013, the party of Mr President then, PDP did not take my view and the then president was fielded as presidential candidate, contested and lost the 2015 presidential elections. There was no reason to test the constitutionality of his participation in that election.

Of recent, however, my learned friend of the Inner Bar, Femi Falana, SAN, was a guest on National Television where the learned silk shared his view and concluded that former President Goodluck Jonathan is not qualified to run for president in 2023. This view was countered in a write up by Chief Mike Ozekhome SAN. According to Chief Ozekhome SAN, the case of Jonathan running had been challenged and settled in NJOKU VS JONATHAN (2015) LPELR-244496 (CA). In that case, the Court of Appeal, Abuja Division, held that President Goodluck Jonathan had only taken the oath of office once and therefore upheld his eligibility to contest the then Nigeria’s presidential election slated for March 28, 2015. There was no further appeal to the Supreme Court. My learned brother silk, Chief Ozekhome SAN quoted copiously the decision of the Court of Appeal in the above case and the forth Alteration Act to contend that President Goodluck Jonathan should run in 2023 if he wishes to do so.

With due respect to Chief Ozekhome, SAN, he missed the points canvassed by my humble self and Femi Falana SAN and other patriotic legal minds that President Goodluck Jonathan is not qualified to run for Nigerian President again under the 1999 Constitution. The case of NJOKU vs Jonathan cited by Chief Ozekhome SAN is not helpful on many fronts and on the point that president Jonathan if was allowed to run for Presidential election again under the 1999 constitution and he wins, he will be spending more than the required 8 years maximum as president of Nigeria under said constitution.

First the forth Alteration Act did not introduce new constitution. It amended the 1999 Constitution.Secondly the issues that weighed heavily on the minds of their lordships of the Court of Appeal in the Njoku vs Jonathan case were questions of the locus standi of the Appellant, Mr Njoku in that case and the fact that there was no cause of action or reasonable cause of action. On the question of locus at page 21 of the report, the Court of Appeal made the point that: The law is that a plaintiff who seeks a declaratory relief relating to the Constitution as in this case, must establish a constitutional right or interest in relation to which the declaration can be made, as Courts will not decide hypothetical questions.The right or interest must be substantial, tangible and not vague, intangible or caricature. The appellant has failed in this regard. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 427, 602.

On the question that Appellant’s case did not disclose any cause of action the Court of Appeal agreed and held in that case that: After reviewing the evidence and the law, the trial Court held that the appellant’s case did not disclose any cause of action. We cannot fault this conclusion. There was nothing to show that the 3rd respondent had given notice of the poll and that the 2nd respondent had commenced the process of nomination pursuant to Section 87 (1) of the Electoral Act. The appellant was not shown to have taken out any form to show or declare his intention to contest. Even now there is nothing put before us to show that the appellant took out any form to show his intention.

It is true that the Court of Appeal attempted, with due respect albeit wrongly to make some distinctions between the facts of the case before it and the facts in Marwa’s case. This is what their lordships said in Njoku’s case: It is clear to me, that the facts in MARWA VS. NYAKO (SUPRA), are different from these in the instant appeal. The five governors in MARWA’S case were, after a process of voting, elected as governors of their respective States and took the Oaths of Allegiance and office on 29th May, 2007. When the elections were nullified, they all stood for the re-run elections and they were again declared elected after voting. They took the Oaths of Allegiance and Office again. The Supreme Court held that their tenure of office commenced on the 29th of May, 2007 when they first took the Oaths. So that case, was essentially about determining when their four years tenure commenced. It was not about qualification or disqualification to stand election. Again, the same persons who stood for election as Governors and won and were sworn in, were the same persons who stood for the re-run elections and won and were sworn in. See PP. 43-46, paras. F-B.

It is submitted with respect that the distinction drawn by their lordships of the Court of Appeal upon which Chief Ozekhome SAN premised his arguments did not take into account the position that a person contesting the office of vice president is by implication contesting the office of the president. He automatically becomes the president if any of the factors set out in the constitution in section 146 of the constitution occurs. This point was underscored by the Supreme Court in PDP vs INEC (supra)

Secondly there is no dispute that President Jonathan became Vice President and President of the Federal Republic of Nigeria under the 1999 constitution. The intention of law makers is that no one person in Nigeria should hold the office of the President of Nigeria for more than 8 years maximum. There is no provision in the constitution that says the two years he spent in the office as president of Nigeria before he won election in 2011 should not and cannot count as parts of 8 years he will be spending in office as Nigerian President should he wins the 2023 general election if he allows himself to be fielded as candidate of any political party.

The Supreme Court was emphatic on the points in Marwa’s case. This is what his Lordship Onneghen JSC as he then was later CJN said at PP. 27-33, paras. E-B of the report that: Guided by the above principles and many others not stated herein, can it be said that Section 180(2) supra admits of no unbroken tenure of four years? In the case of Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423, this Court held that the impeachment and removal from office of Governor Ladoja of Oyo State was unconstitutional, null and void. Prior to that decision Ladoja was out of office by way of impeachment for almost a year. He subsequently instituted an action in which he sought to, regain the lost period of his four years tenure as guaranteed under Section 180(2) supra, in the case of Ladoja vs INEC (2007) 12 NWLR (Pt. 1025) but this Court held that his tenure cannot be extended to accommodate the period of time he lost through the impeachment. Governor Ladoja’s tenure was broken by the impeachment saga in Oyo State; but he was asked to continue his tenure from when he returned to office. It is the case of the respondents that since their elections in 2007, where nullified it meant that in law the said election never took place and as such the Oaths of Allegiance and of Office they took on 29th May, 2007, became non-existent and that the Oaths of Allegiance and of Office which is valid and relevant to the determination of the four years tenure is that which they took at various dates in 2008. I had earlier found and held that the provisions of Section 180 of the 1999 Constitution do not envisage a re-run election let alone a re-run election won by the same person who took the earlier Oaths of Allegiance and of Office. I have also found and held that from the totality of the relevant provisions of the 1999 Constitution including Section 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 maxim 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 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. The argument that following the nullification of their elections the said elections were in the eyes of the law nonexistent as they are regarded not to have taken place as well as the subsequent oaths they took to enable them function in the office of Governors of their States is brilliant though it does not deny the fact that there was an election conducted and winners declared thereafter in accordance with existing laws and regulations; that the winners of that election subsequently took their Oaths of Allegiance and of Office as required by the constitution and did function in that office for about one year effectively exercising the executive powers of the state such as signing Bills into law including appropriation Bills; appointing commissioners and numerous Advisers, awarding contracts, etc. The proponents of this contention agree that the acts performed by the affected governors remain valid and subsisting after the nullification of the elections but the oaths they took to function in that office went with the nullification of their election! It is not in doubt that the lower Court was the final Court on governorship election petition matters and that its decision on such matters bind the election tribunals and courts below it in the hierarchy of Courts. The above notwithstanding this Court, the Supreme Court of Nigeria, is not bound by decisions of the lower Court in matters, where that Court is the final Court of appeal as this court is the highest Court in the land whose decisions are binding on all and sundry. It is with the above in mind that I consider the wide nature of the decision of the lower Court as to the voidity of the elections that resulted in the swearing in of 29th May, 2007. Generally speaking, a void act is void and nothing can be put on it. However, when you consider the nature and consequences of an election which produced a winner who was sworn in on the presumption that the election that produced him was regular and legally valid then when that election is set aside or nullified, the nullification is only limited to the election and does not affect acts done while the person occupied that office. In effect, what it all means is that the election that was later nullified was only voidable, not void, because if it is to be taken literally as void ab initio as is being contended by some of the parties, it means the country would be plunged into chaos as all acts done by the governors must of necessity be null and void and of no effect whatsoever. So, when we have a situation where the acts of the governor whose election is nullified are saved, then the only legal explanation or meaning to be attached to the use of the words “null and void” in describing the said election by the Court, is “voidable”, ab initio. It is therefore my considered view that what the lower Court meant by saying that the elections were null and void is simply that they were voidable as a result of which they proceeded to annul same. I hold the considered view that since the acts performed during the period prior to the nullification of the election remains valid and subsisting and the same person contested and won the re-run election thereby taking another set of oaths and since what was nullified was the election, the oaths they took on 29th May, 2007, remains valid and the starting point in calculating their four years tenure of office as governors of their respective states particularly as the 1999 Constitution does not envisage a tenure exceeding four years by the same person who took the first oaths following the election which kick started the tenure.

Clearly, it is submitted that even though the Forth Alteration Act, cannot have retrospective effect, there is no dispute that the 1999 constitution was the constitution under which President Jonathan was in office as president of Nigeria for six or five years. The arguments about retrospective effect is begging the question. Was President Jonathan, President for six or five years under the 1999 constitution or not. The argument that no-one can be declared elected under the 4th Alteration Act unless he or she goes through the stages of election, with due respect fails to take into account the special provision dealing with Deputy Governor or Vice President taking over in the event of death or any of the circumstances provided in the constitution.The 4th Alteration Act brought out clearly the intention of the law makers as espoused by the Supreme Court that the maximum you can be in office as Nigerian President shall be 8 years.

No one can reasonably argued that the time President Jonathan spent in office after the death of President Ya’Adua be not counted as parts of the years or the tenure he spent in office as president of Nigeria.That will be historical fallacy and factual inaccuracies. It will be constitutional deceit. His official acts as president cannot logically and legally be said to be the acts of the late President Ya’Adua. I am in complete agreement with Femi Falana, SAN, that President Jonathan cannot contest again for another 4 years as President under the 1999 Constitution.

To allow him to do so will be a gross violation of the 1999 constitution. But as his name implies, he may have the goodluck, get fielded, wins the election and spend another four years and then go into the history book as the only president that spent either 10 years or 9 years as president of Nigeria under the 1999 constitution contrary to the provisions of the 1999 constitution that allows him maximum of 8 years. This is Nigeria. Nothing is impossible in Nigeria.