Dear Sir,
Constitutional Impediments to
President Jonathan’s Candidacy in 2015
Introduction
Any person of average
intellect who read the 1999 constitution (as amended) along with four key
judgments of the Supreme Court (INEC Vs Boni Haruna, Peter Obi Vs Chris Ngige,
Ladoja Vs INEC and INEC Vs 5 PDP Governors) would easily conclude that
President Jonathan’s eligibility to contest for another 4-year term in 2015 or
at any other time thereafter under the present constitution is impeded. This
argument is premised on the fact that what constitutionally applies to the
governor on the issue of eligibility or otherwise to contest elections is ipso
facto applicable to the president. In those judgments, the apex court had
established the relationship between the governor and his deputy on the issue
of succession (Boni Haruna); determined the holding of office in a term at 4
years (Peter Obi); affirmed that a governor can stay less but not more than 4
years in a term (Ladoja); and declared that tenure of the executive in office
is a cumulative maximum period of 8 years and not a day longer (5 PDP
governors). By 29 May 2015, President Jonathan would be 5 years 23 days as
President of the Federal Republic of Nigeria. If the president contests and
wins the 2015 presidential elections or at any other time later, he will exceed
the cumulative tenure of 8 years maximum period as interpreted by the Supreme
Court. Therefore such a contest will be unconstitutional.
The
Argument
The 1999 constitution
(as amended) provides a term of 4 years and another term of 4 years and no more
for the executive. The Supreme Court, in the case of INEC Vs the 5 PDP
Governors (Idris, Nyako, Wamako, Sylva and Imoke), interpreted this provision
as a maximum of 8 years cumulative tenure. The Court said it can be less for an
individual but certainly not more. With this interpretation, the Supreme Court
removed 5 governors from office and necessitated for the amendment of sections
135 and 180 of the constitution. With 5 years 23 days to his credit as
president, would President Jonathan’s contest for another term of 4 years not
violate the provisions of the constitution as interpreted by the Apex Court?
Since all presidential elections are for a 4-year term, we definitely need a
clear judicial answer to this question.
In determining the
issue of tenure in that case, the Supreme Court adopted two basic principles in
its interpretation of the constitution in calculating the 4-year tenure system.
Firstly, that a Governor – and a President – is elected for four years and
eligible to re-election for another four years and no more. On the basis of
that the Supreme Court declared:
“In all a governor has
a maximum tenure of eight (8) years under the 1999 constitution. 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”, and added
pointedly that “The 1999 Constitution has no room for self–succession for a
cumulative tenure exceeding eight years”.
Explicitly, this means
that the cumulative 8 years tenure can be in bit and pieces, so to speak. It
also means that in computing President Jonathan’s maximum of 8 years tenure,
the 1 year 23 days he held as president between May 6, 2010 and May 29, 2011
will be counted. Other two points being made also are first, all tenures of
office of the executive emanate from the two 4-year terms; and second, it
really does not matter how one constitutionally comes into office, what matters
is one does not remain in that office a day beyond cumulative 8 years.
Secondly, the Supreme
Court adopts the principle that so long as “the acts performed during the
period in office remain valid and subsisting”, then the oath taken empowering
the performing of those acts also remains valid and becomes the starting point
in calculating the cumulative 8 years tenure of office. It is on record that
all the acts President Jonathan performed between May 6, 2010 and May 29, 2011,
including the Electoral Act that was used to re-elect him in 2011, are all
valid and subsisting. Therefore, to calculate the tenure of office of President
Jonathan from May 29, 2011 when he was sworn-in as duly elected President and
ignore the period from May 6, 2010 when he was first sworn-in as President, is
to close our eyes to what is real and concrete thereby extending for the
President a period in office beyond the maximum 8 years tenure for the
executive. If the President contests and wins another four-year term in 2015,
he would have self-succeeded himself in office as president for a cumulative
period of 9 years 23 days.
It is also worthy to
note that President Jonathan’s only claim of right to contest another term of 4
years is solely hinged on the disqualification clause in Section 137
sub-Section 1 (b) of the constitution that says “if he has been elected to the
office of president at any two previous elections”. This is the clause upon
which Justice Oniyangi of the FCT High Court (referred to below) mainly based
the argument of his judgment. It is true Jonathan was not elected as president
in any two previous elections, but this provision must also be looked at
vis-à-vis the maximum tenure of 8 years prefix. The question therefore is if
electing a person two times will give him a cumulative period in office beyond
the 8 years bracket, will he still be eligible to contest such two terms of 4
years to that office? I think the answer, to my understanding of the logic and
conclusion of the Supreme Court judgment, is in the negative.
Besides, if Section 137
sub-Section 1 (b) is President Jonathan’s only ‘qualification’ to contest, then
same will be applicable to Boni Haruna in Adamawa, Rotimi Amechie in Rivers and
Ibrahim Gaidam in Yobe states under Section 182 sub-Section 1 (b). Technically
speaking, like President Jonathan, these men were also not elected at any two
previous elections as governors of their respective states. All of them, again
like President Jonathan, assumed office through some constitutional means after
election and commencement of terms. Does it mean that they are all eligible to
contest another term as governors of their states? Can we say that Gov. Yero of
Kaduna State by 2015 still has 8 more years to continue as governor?What of Ag.
Gov. of Taraba; can he contest for two terms by 2015? Likewise, in the case of
Ag. Gov. Fintiri of Adamawa State in which two successful elections can give
him a maximum of only 4 years 7 months in office, can he contest again simply
because he did not clock 8 years in office? In my understanding of the Supreme
Court’s interpretation of the constitutional provisions of the 4-year term of 2
terms, I believe none of them is eligible to exceed 8 years whether or not they
are elected in two previous elections or whether or not they clock 8 years in
office, whichever is applicable.
This then further begs
the question – can President Jonathan, under the circumstance, still be
eligible for another 4-year term in 2015 or at any other time afterward, seeing
that, if he contests and wins, by the end of that term (in 2019) he would have
self-succeeded himself in office as president for a cumulative period exceeding
the maximum of 8 years interpreted by the Supreme Court? Undoubtedly, posing
this question is not only germane but is unavoidable. Getting a judicial
determination to this issue in the Supreme Court is basic if we are to hold and
advance the cause of constitutional democracy and rule of law in Nigeria. To
close our eyes to this and pretend that the coast is clear for the president to
contest 2015 is playing the ostrich to an indispensable constitutional matter.
This will be doing grave injury to our system. The solution to this matter lies
with the Supreme Court.
Though we may all have
built our interests, emotions and sentiments for or against President
Jonathan’s contest in 2015, but as things stand his contest is unlikely to
enhance constitutionalism and judicial pronouncements as it will instead
eliminate the principle of maximum tenure for the executive in Nigeria. It will
also create the basis for perpetuating one political party in power by
unendingly making an incumbent of one party a contestant, thereby setting a
perilous precedence in the country’s democratization process.
A leader ought to lead
by example, by action and by sacrifice. He must lay good precedents in the
governance and politics of the polity. As we strive to apply international best
practices standard in our public affairs, it will be good President Jonathan
draws some lessons from examples in mature democracies such as that of America,
where we borrowed our system. We should not just copy the written constitution
alone but also along with it, its values, ethos and practices. For example,
none of the nine Vice Presidents of the USA (John Tyler, Millard Fillmore,
Andrew Johnson, Chester Arthur, Theodore Roosevelt, Calvin Coolidge, Harry
Truman, Lyndon Johnson or Gerald Ford) who, like President Jonathan, became
president on account of the death or resignation of a president, submitted
himself for election, and none was ever elected, twice in office as president.
As patriotic statesmen and good leaders wanting to build an enduring system for
their country, they stepped down their personal ambitions for the higher
interests of their country. But as it seems that President Jonathan, who shares
the same political milieu with these former US Presidents, is however not
willing to do same and set a positive precedent for his country’s
democratization process, and print his name in gold in the annals of Nigeria’s
national politics, it is essential that his candidacy for 2015 is put before
the apex court for determination, either be affirmed or rejected.
I am aware of the High
Court judgment declaring that the President can contest again – that of Justice
Oniyangi of the FCT High Court delivered on Friday 1st March, 2013. The matter
was also brought before Justice Evelyn Anyadike of the Federal High Court
Kaduna who knocked it out on technical ground. I read the submissions of both
cases and their judgments against the interpretation and definition of tenure
of office for the executive by the Supreme Court. I also read the argument
proffered by Justice Oniyangi against the logic and conclusion of that Supreme
Court Judgment, and I respectfully think the learned Judge has missed the
point. For a highly celebrated case in which the Supreme Court went the extra
mile to get legal opinions from luminaries as Amicus Curiae, the final
unanimous decision of its 7 Justices cannot but be compelling. It would really
be interesting to see how the FCT High Court’s judgment will fare on appeal.
Equally, to argue that
President Jonathan’s tenure of office as president between May 6, 2010 and May
29, 2011 as “completing the tenure of late President Yar’adua”, in my opinion
is futile, given that there is nowhere in the constitution where such provision
is made. Besides, if a Vice President will be sworn-in as substantive President
of the country, and in his new capacity appoints his Vice President, thus
forming a distinct regime of his own, the talk of completing someone’s else’s
term of office cannot even arise.
Conclusion
In our politics we must always be guided by the provisions of the law, especially the interpretation of the law by the court. Left to our devices, we all want things done our own ways, but this is impossible. That is why we have a premise to operate upon, which is the law that directs and guides the conduct of all operators. Personally, even as an academic, President Jonathan’s contest in 2015, an episode of great significance to the nation, seems to me to have fallen outside the law, and therefore needs the determination of the supreme court of the land. And as a PDP member and a Nigerian of good standing, I think it is in our best interest to get the matter thus determined if we are to go into the nomination process in confidence, with a candidate whose eligibility status is spotless. That is the only way to ensure smooth operation of our system, avoid lawlessness, political crises and social anarchy, and guarantee our democracy and the well-being of our country. It is against this backdrop that I consider a judicial action necessary, and for which reason I intend to institute one at the Court of Appeal.
In our politics we must always be guided by the provisions of the law, especially the interpretation of the law by the court. Left to our devices, we all want things done our own ways, but this is impossible. That is why we have a premise to operate upon, which is the law that directs and guides the conduct of all operators. Personally, even as an academic, President Jonathan’s contest in 2015, an episode of great significance to the nation, seems to me to have fallen outside the law, and therefore needs the determination of the supreme court of the land. And as a PDP member and a Nigerian of good standing, I think it is in our best interest to get the matter thus determined if we are to go into the nomination process in confidence, with a candidate whose eligibility status is spotless. That is the only way to ensure smooth operation of our system, avoid lawlessness, political crises and social anarchy, and guarantee our democracy and the well-being of our country. It is against this backdrop that I consider a judicial action necessary, and for which reason I intend to institute one at the Court of Appeal.
Thank you.
Dr. Umar Ardo |
Dr. Umar Ardo
(Adamawa State PDP
Stakeholder)