By Kelechi Prosper Nwodo

INTRODUCTION

It is election season again! Politicians in Africa’s largest democracy are visibly aspiring, consulting, strategically aligning, amassing political arsenals, and assembling battalions to wrestle and secure their ambitions, as well as to bedazzle their perceived and real opponents through political scheming and legal theatrics.

As preparations and permutations for the presidential primaries of the country’s leading parties reach gather steam, there has been recent calls from some sections for Former President Goodluck Jonathan to pick up his political gauntlet and enter the presidential contest ring. The Bayelsa-born Former Commander-In-Chief who had previously completed the tenure of Late President Umaru Musa Yar’adua upon his unfortunate demise, and also served one term (from 2011 to 2015) as President has however made noncommittal remarks about his interest in the next Presidential election, providing grist to the mill of speculations, conjectures and rumours about his ambition in public space.

In the last few days, the political conversation about Jonathan’s rumoured presidential ambition has taken a sharp turn to a legal debate about his eligibility or otherwise that was steered by comments from renowned lawyer and human rights activist, Femi Falana SAN who submitted that the Former President is constitutionally incapacitated from running again for the number one office in the country. A cursory study of the comment shows the5 structure of the revered Silk’s argument was erected on two pillars, to wit:

i. The provision of Section 137 (3) of the 1999 Constitution as amended,
ii.That if Jonathan gets elected for a another term, he will end up spending a total of 9 years as President beyond the eight years of two four-year terms stipulated by the Constitution inferred from Section 137 (1) (b).

While there is no question about the content of the cited provisions, the tangent where lawyers reach a divergence is with respect to the intendment of the provisions, and particularly their applicability given the peculiar set of facts surrounding Jonathan’s case.
It is my humble opinion that to give proper context to constitutional provisions, they must be applied within the factual perimeters of the Former President’s case, as laws cannot be vaguely or indiscriminately applied without meticulous consideration of all relevant facts.

In ELE v.STATE (2006) LPELR-11649(CA), the Court held that “Law should only be applied to facts of a case, it is not for the Court to manufacture such facts or move from law backwards to facts on the pretext of justice” (Underlining mine for emphasis). Also, in Agbaje v. Fashola (2008) ALL FWLR (Pt. 443) 1302 @ 1337 B-C. it was held that in the interpretation of constitutional provisions, the Court must bear certain principles in mind, they include:
b) the Court must employ care and take the circumstances of the people into consideration;
(c) the historical facts, which are necessary for comprehension of the subject matter may be called in aid.

It is my submission that if the context of Former President’s case is circumspectly juxtaposed with the relevant Constitutional provisions as well as subsisting case law, he successfully ticks all boxes for eligibility and stands outside the web of disqualification spread by Section 137 of the Constitution. To substantiate this submission, this argument shall be raised and detailed on a tripod: (1) What constitutes an election under the law? (2) The subsisting judgement of the Court of Appeal on the matter and (3) The Restrospectivity of the interpretation supposedly barring the Former President. I crave your indulgence to join me on this legal adventure to dissect the thrust of the incumbent subject. Thank you.

WHAT CONSTITUTES AN ELECTION IN LAW?

To unveil the relevance of this question to this discourse, it is apropos to pluck out and reproduce the provision of Section 137 (1) (b) of the Constitution below. It provides that:
(1) A person shall not be qualified for election to the office of President if –
(b) he has been elected to such office at any two previous elections;

According to this provision, any person who has been elected as President twice stands disqualified from aspiring for the office of President again. It is based on this provision that proponents of the ‘disqualification theory’ infer that having taken the Presidential Oath-of-office twice, the Former President is therefore handicapped from running again. This inference being peddled is far-fetched and dissimilar from the letters of the provision as the provision is clearly concerned with elections and not oath-of-office. The Court has frowned against such arguments or propositions that are substantially distinct from the letters of the law. In ATTORNEY GENERAL OF FEDERATION V. SODE (1990)1NWLR (Pt. 128) 500 at 541 and 545 Justice Iguh observed that “I do not conceive that it is the duty of the court by means of ingenious arguments or propositions to becloud, change qualify or modify the clear meaning of the provisions of a Statute or Decree once such provisions are plain, unequivocal and unambiguous”.
With the operative word in the provision being “election”, the question that leaps up at this interval is, how many times has Goodluck Jonathan being elected as President? To answer this, we shall swim deep into the provisions of the Constitution and Electoral Act to first ascertain what qualifies as a valid election under law.

To this end, we shall specifically rely on, section 385(13) of the Constitution as amended and section 141 of the Electoral Act, 2010 which collectively provide that:
An election tribunal or court 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.

The implication of this provision is that one can only be held and deemed as properly elected to an office when he/she has fully participated in all stages of an election i.e purchase of nomination forms, primary election and the general election. This position is supported by the decisions in LERE v. LAWAL & ORS (2019) LPELR-48896(CA), CONGRESS FOR PROGRESSIVE CHANGE vs. OMBUGADU (2013) 18 NWLR (PART 1385) 66 where the Court held Per NWALI SYLVESTER NGWUTA, JSC (Pp 51 – 51 Paras B – F) that “before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting.”

Going by the foregoing, Former President Goodluck Jonathan having only participated in all stages of a Presidential election once, has therefore been elected only once under the law and cannot by any stretch of legal contraption be reckoned as disqualified under Section 137 (1) (b).

SUBSISTING JUDGEMENT OF THE COURT OF APPEAL ON THE SUBJECT

It is fundamental in law that a judgment of a court of law, no matter how incorrectly arrived at, subsists until set aside by a competent court. In Ojo v. I.N.E.C. (2008) 13 NWLR (Pt. 1105) 577 the court restated thus: “A judgment of a court of competent jurisdiction is valid, subsisting and binding until set aside on appeal.”

In 2013, one Cyriacus Njoku instituted an action at an FCT High Court seeking a Declaration that then President Goodluck Jonathan was not eligible to contest the 2015 Presidential Election on the same grounds set out by the respectable Falana SAN and his co-travellers in their argument. This action was dismissed by the Trial Court, and the Claimant, dissatisfied, commenced an appeal at the Court of Appeal, Abuja.

In deciding the appeal reported as NJOKU v. JONATHAN & ORS (2015) LPELR-24496(CA), the Court exhaustively addressed the meat of the case and other neighbouring issues. The intermediate Court in a radiance of fine erudition answered the question of whether the succession of a Vice President to the Office of a President who died can be deemed an election. It smartly rendered:

Again, the succession of a Vice-President to the office of a President who died, in accordance with Section 146(1) of the 1999 Constitution, cannot be “deemed an election”, especially for the purpose of taking away a right that has been vested. As stated earlier, an election under the 1999 Constitution involves primaries, nominations, voting and declaration of results. That is the mode prescribed in electing a President, and once it is so prescribed, it must be followed, and no other method can be employed.

But if a Vice-President succeeds a President who died, that cannot be challenged because it is a Constitutional provision, and the succession cannot be annulled. It is a mode of assumption to the office of the demised President, an ‘appointment’ by the Constitution. Per ABUBAKAR DATTI YAHAYA, JCA (Pp 40 – 41 Paras E – D)

In interpreting Section 137 (1) (b), the Court luminously clarified that:
“Section 137(1)(b) of the 1999 Constitution disqualifies a person from standing for an election to the office of the President if- “he has been elected to such office at any two previous elections.” “So the operative word, is election.

The disqualification is to stand for an election again, if one had been elected at two previous elections.
The word ‘election’, used in Section 137(1)(b) of the 1999 Constitution, when given its ordinary grammatical meaning, connotes a process where voting is employed, to choose a person for a political office. The process of primaries, nomination, voting, collating and announcement of results must of necessity, be involved.” Per ABUBAKAR DATTI YAHAYA, JCA (Pp 39 – 40 Paras E – C).

Within the realm of our legal system this decision remains standing, binding and subsisting till date and any argument that seeks to controvert it is contemptuous of the Court’s judgement, erroneous and legally misplaced.

To seal this ambit, It is also instructive to make reference to the case of OJUKWU VS. OBASANJO (2004) LPELR-2400(SC) where similar questions were submitted before the Supreme Court for legal consideration and judicial determination. In that case, the Court held that although General Obasanjo was appointed to the office of Head of State after the death of General Murtala in 1976, he was not appointed to that office “by the popular votes of the people of this country” as the 1999 Constitution stipulates. The stint in office, could therefore not count as an “election to the office of President”, and so it could not be a disqualification factor when he presented himself in 2003 general elections to contest for the office of the President. The election he stood for in 1999, in accordance with the 1999 Constitution, and which he won by majority of lawful votes and sworn in as the President, was taken to be his first election to the office of President, for the purpose of disqualification, not his 1976 occupation of the office.

Going by the tenor of this judgment, it is settled like grain in a glass of water that President Jonathan’s spell in office from May 2010 to May 2011 after the death of this former Principal does not count as a valid or constitutionally cognizable election to the effect of stripping him of the competence to run for the office again.

DISTINGUISHING MARWA’S CASE FROM JONATHAN’S

The contention of those who align with the side of the divide which argues that President Jonathan is disqualified from contesting is largely based on the case of MARWA v. NYAKO. However, the facts of the case and Jonathan’s are uneven and disparate, hence, cannot be relied on as precedent.
In MARWA’S case the Plaintiffs (five governors) 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.
Having established the impotence of Section 137 (1) (b) within the circumstances of Jonathan’s case, I shall proceed to expose why Section 137 (3) does not amputate the limbs of his rumoured Presidential ambition.

THE RESTROSPECTIVITY OF THE RELIANCE ON SECTION 137 (3) OF THE CFRN

A conducive starting point for this ambit is the dictum in the case of SPDC V. ANARO & ORS (2015) LPELR-24750(SC) at (Pp. 64 paras. B), where this Court rehashed its disposition towards retrospective legislation when it held thus:
“There is a general presumption against retrospective legislation. Generally, statutes are construed as operating only in cases or on facts, which come into existence after the statutes were passed.”

The said Section 137 (3) of the Constitution reads thus: “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”.
Literally, this section disqualifies President Jonathan from contesting for the Presidency, and is understandably responsible for misleading those who contend that the Former President is ineligible to throw his hat in the ring.
However, it is noteworthy that this provision (subsection 3) in question, was conveyed into the body of the Constitution via the Fourth Alteration of 2017 which gained Presidential accent and became operative from 2018. Thus, only cases or facts which come into existence thenceforth can be determined by the Section.

In OBUMSELI V. UWAKWE (2009) 8 NWLR (Pt. 1142) 55 it was held that: “An interpretation giving a retrospective effect to a statute should not be readily accepted where that would affect vested rights or impose liability or disqualification for past events. [Afolabi v. Gov. of Oyo State (1985) 2 NWLR (Pt. 9) 734 referred to.] (P. 79, paras. C-D)16

As established ditto, the interpretation giving to Section 137 (3) of the Constitution which seeks to disqualify President Jonathan from contesting for the Presidency for events which transpired before 2018 when the provision came into existence is invalid and cannot stand the slightest form of judicial interrogation.

Flowing from the positions for law carefully reeled out above like water through a canal, President Jonathan is constitutionally competent to aspire and contest for the Presidency in 2023 if he so desires, and the contentions which oppose his aspiration are practically inconsequential and ineffectual in the eyes of the law.

Kelechi Prosper Nwodo is the National Attorney General of the Law Students Association of Nigeria, LAWSAN
Email: kelechinwodo523@gmail.com
WhatsApp: 07057340392