The presidency’s salvo yesterday makes it abundantly clear that the Federal Government is willing to go into the ring with former President Goodluck Jonathan, whose contentious performance appears to have been dwarfed by the public appeal he enjoyed on handing over the reins of power to the opposition All Progressives Congress (APC), particularly in the face of the many entreaties from his party, the opposition People’s Democratic Party, against such a decision.
At this time, the ruling All Progressives Congress is not only willing to go head to head with the former president, looking critically into his antecedents, leadership trajectories, and accountability to the people; it is also willing to judicially take him up on his eligibility to bid, particularly in light of the salient provisions of the constitution regarding oaths, tenure of office, and joint tickets.
It is not debatable that many have traced the failure of the opposition People’s Democratic Party (PDP) to his nonchalance; to further cement this, many have called him out over his decision to cede power to the All Progressives Congress (APC), the architect of the constitutional amendment which has got people talking. They called that decision his albatross.
Following the death of then-President Umaru Yar’Adua on May 5, 2010, former President Jonathan, as the then Vice President, took an oath of office to complete Yar’Adua’s term as President. The term lasted for 1 year and 24 days. He contested and won the general election in 2011 and was again sworn in for a term of 4 years on May 29, 2011. He, however, lost the bid to be re-elected to the same office in 2015. Now in total, former President Jonathan has spent a total of 5 years and 24 days in office.
In May 2018, President Muhammadu Buhari, in a bid to perfect sections 137(1 & 2), which speak to the rotation of leadership and incumbency power, expanded that section of the constitution by signing the bill into law. Section 137(1)(b) of that section says:
“A person shall not be qualified for election to the office of the President if he has been elected to such office in any two previous elections.”
While trying to expand the scope of this section of the constitution, the legislature procedurally imputed subsection 3. It was thought that there is the possibility that a Vice President inherits the presidency mid-term; say, through the death or removal of an incumbent, and then seeks two further full terms of his own. By virtue of section 137(3), inserted by the Fourth Alteration No. 16 Act 2018, such a Vice President is barred. A similar clause applies in section 182 of the constitution, particularly to state governors.
Section 137(3) says: “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 that office for more than a single term.”
Section 182(3), in the same vein, states: “A person who was sworn in as Governor to complete the term for which another person was elected as Governor shall not be elected to that office for more than a single term.”
Until these provisions are expunged from our body of laws, no Jupiter can attempt to jump the law. The law has spoken in its letters; it is for those who are attentive to its letters to be careful.
Sections 137(1) and 182(1) make it abundantly clear that persons elected for four years can serve for another four years after being re-elected. However, by virtue of the latest addition to the Constitution (the subject matter under review), a person who is sworn in to complete the term of his predecessor does not enjoy this privilege provided for in the combined reading of Sections 137(1) and 135(2) of the Constitution for the President and Sections 180(2) and 182(1) of the Constitution for the Governor. He is only restricted to the time he is able to inherit from his predecessor and then one full term in office, and nothing more.
However, some senior lawyers have argued that the provisions of these two subsections reek of hypocrisy since they contradict sections 137(1) and 182(1) of the constitution. It is the position of these two subsections that an individual can only be barred from contesting if he has contested twice and not sworn an oath of office twice. The lawyers insist that a Vice President or Deputy Governor who took office at the demise or removal of a President or Governor was never elected since he merely stepped in as a matter of right to conclude the tenure of the governor. He, according to them, only swore the oath of office twice. He wasn’t elected.
I, however, beg to disagree. The office of a President or Governor is itself an elective position. Any Vice President or Deputy Governor who steps in to conclude the tenure of his boss is deemed to still be enjoying the electoral mandate conferred by the people. He is merely continuing with the electoral mandate he received from the people through a joint ticket with his boss. It is also a fact that he would have spent more than the statutory 8 years should he be allowed to contest for another term after his single term.
Meanwhile, the presidency has reacted to Jonathan’s plan to contest, describing it as “disastrous.” The then President had initially spent 13 months in office while completing the terms of his predecessor, former President Umaru Yar’Adua, before contesting for the election proper in 2011.
Reacting further, the presidential spokesperson highlighted the legal standing of the former president, saying:
“But Jonathan will have his date in the court of the land. Indeed, the jury will determine whether Jonathan, who was sworn in twice as President, satisfies the constitutional requirements and is eligible to contest the presidency and be sworn in, if successful, for a third term in office,” the spokesperson wrote.
Relying on the wording of the presidential spokesperson’s statement as well as the opinions of many other Nigerian senior lawyers, it is crystal clear that the Nigerian constitution not only frowns upon the arrangement that would reintroduce a former president who has sworn the oath of office twice from re-emerging in the political climate of the country or a governor in the context of a state; it also makes it abundantly clear that the presidency is interested and willing to profit from that clause, particularly in its bid to exclude President Jonathan from the race.
The parallel situation of Ondo State now comes to mind. Supporters of the incumbent governor of the state, Lucky Ayedatiwa, have argued that the governor is eligible to re-contest office as governor despite having sworn the oath of office twice, considering that his late foray into power was necessitated by the death of his boss.
A literal interpretation of section 182(3) makes what can become of Lucky in the long run clear enough. The recent popularization of that clause by Jonathan might end up being the governor’s undoing, as the credibility of Jonathan’s contest might shift the stance of the APC-dominated National Assembly to fully support the contentious provision. This might translate to the status quo for the governor.
It is my candid counsel to the governor that he faces governance fully, bearing in mind that he might not remain in office at the lapse of the four years he got through the ballot. The Jonathan factor might end up being the spoiler, as the governor cannot challenge that provision while his party, the APC, is going to court against Jonathan over the same provision.
