- The drafter of the Nigerian constitution did not foresee or envisage the Yar’Adua-Jonathan succession conundrum.
- In 2018, three years after Jonathan left office, the National Assembly moved to block the constitutional lacuna and imbroglio created by Jonathan’s succession and passed the Fourth Alteration No. 16 Act.
Since leaving office in 2015, subsequent presidential elections have been typified by the correctness and legality of former president Goodluck Jonathan throwing his hat in the electoral ring again for the presidency. There are arguments for and against his quest to vie for the presidency and return to Aso Rock for a second term. This contentious discourse has once again been triggered as preparations for the 2027 general election enter top gear.
Last week, a chieftain of the Peoples Democratic Party (PDP), Jerry Gama, announced that Jonathan will contest the 2027 presidential election on the party’s platform. Reacting to Gana’s announcement, President Bola Tinubu’s spokesperson, Bayo Onanuga, while acknowledging the right of Jonathan to vie for the presidency in 2027, pointed out that the Supreme Court will have to determine the former Bayelsa State governor’s eligibility to slug it out with his principal at the polls.
Recall that Jonathan was sworn in as Nigeria’s president in May 2010 following the death of former president, Umaru Musa Yar’Adua. He spent about a year in office, completing the term of Yar’Adua and subsequently contested and won the 2011 presidential election. The drafter of the Nigerian constitution did not foresee or envisage the Yar’Adua-Jonathan succession conundrum. In 2018, three years after Jonathan left office, the National Assembly moved to block the constitutional lacuna and imbroglio created by Jonathan’s succession and passed the Fourth Alteration No. 16 Act. That legislation led to the promulgation of section 137(3).
Onanuga’s attachment of a clause to Jonathan’s eligibility to vie for the highest office in the land has again brought to the fore of political discourse Section 137(3) which was birthed by the 2018 constitutional amendment, the divergent interpretation of this provision and its ramifications for occupiers or those who intend to lead the executive arm of government at the federal and state levels in the country.
Section 137(3) of the Constitution provides that: “A person who was sworn in as President 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”.
This provision has divided opinions sharply among legal luminaries and socio-political commentators. While some have cited it as a constitutional hindrance to Jonathan’s speculation and potential candidacy, noting that if he contested and won the 2027 presidential election, he would have violated the term limit of eight years of two terms enshrined in the constitution. Others have argued that the law cannot be applied retroactively to Jonathan, hence not binding on him. The argument of those who cited Section 137(3) as grounds for Jonathan’s disqualification from future presidential elections stated that the application of the law in this manner does not necessarily amount to the retroactive enforcement of a law or the violation of human rights.
“Some argue that because Jonathan’s succession as president preceded the 2018 amendment, applying section 137(3) to bar him now amounts to retroactive legislation. This contention fails to appreciate the distinction between retrospective punishment, which the Constitution forbids, and the prospective regulation of eligibility for future office. Section 137(3) does not invalidate Jonathan’s previous tenure; it merely establishes the conditions for future candidacy. Courts generally recognise that the legislature may change qualifications for elective office provided the new rule operates prospectively, as is the case here,“ Kayode Oladele, a lawyer and former lawmaker, wrote.
However, judicial precedents and statutes do not only put the assertion and claim of Oladele to the test, but also raise questions about their soundness. For example the Supreme Court in Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377, held: “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… The Court continued: “It is a fundamental rule of Nigerian law (received from English law) that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or Law; or arises by necessary and distinct implication”
Obaseki JSC averred that “a statute is retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.” Going by Obaseki’s averment, Section 137(3) cannot retroactively be used to block Jonathan’s vested right to seek elective office, a right that predates the 2018 amendment.
On the matter of Jonathan’s completion of Yar’Adua’s tenure and serving another term in office automatically translates to two constitutional terms of eight years; therefore can no longer contest again. Lawyer, Abdul Mahmud, stated that Jonathan’s completion of Yar’Adua’s tenure cannot constitute a term, according to the constitution.
Mahmud said: “This position was settled by the Court of Appeal in Cyriakus Njoku v. Dr Jonathan & Ors (2015), where the Court distinguished Dr Jonathan’s succession from the facts in Marwa. The Court held that his initial assumption of the presidency in 2010 was not by election, but by constitutional operation under Sections 146(1) and 137(1)-(2). It further found that he had taken only one oath of office as elected President, not two. Thus, the notion of “two terms” must be strictly tied to elected tenures, not to constitutionally mandated succession arising from vacancy in office.”
Also Justice Onnoghen of the Supreme Court on the principle of constitutional term limits in Marwa v. Nyako (2012) held that: “Where a Deputy Governor succeeds a Governor who vacates office before the expiration of the term, and the Deputy Governor serves for more than two years of the unexpired term, the Deputy Governor can only contest for one further term of four years. Where he serves for less than two years, he is not deemed to have served a full term and may thereafter contest for two full terms of four years each.”
In conclusion, until the court rules otherwise, as things stand, there is nothing in the existing precedents or Section 137(3) that conclusively bars Jonathan from vying for the presidency again. He retains the right to contest the presidency in 2027 if he so wishes. Section 137(3) cannot apply retroactively but prospectively, hence cannot be used to disqualify him from contesting the 2027 presidential election.,
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