Human rights activist and Senior Advocate of Nigeria, Femi Falana, was reported to have said that the former President, Goodluck Jonathan, cannot seek re-election into the office of the President, according to the Constitution.
According to the learned silk, the former President is disqualified from contesting the said election by section 137 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended in 2018 which provides as follows:
“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.”
It is not in dispute that Dr. Jonathan became the President of Nigeria in 2010, following the sudden death of President Umaru Yar’ adua. He later contested and won the 2011 presidential election.
Having spent 5 years in office as President, Dr. Jonathan is disqualified from contesting the 2023 presidential election.
“The reason is that if he wins the election, he will spend an additional term of 4 years. It means that he would spend a cumulative period of 9 years as President of Nigeria, in utter breach of Section 137 of the Constitution which provides for a maximum two terms of 8 years.”
President Muhammadu Buhari on June 4, 2018, signed the constitutional amendment that stops a Vice President who completes the term of a President from contesting for the office of the President more than one more time.
But the law (Act) was enacted after Dr. Goodluck Jonathan took a new oath of office to complete Yar’Adua’s term as President, following his death as the then-President on May 5, 2010.
He was also sworn in for another term on May 29, 2011, after he won the presidential polls of that year, and also contested the 2015 presidential election, which Gen. Muhammadu Buhari, now president Buhari emerged the winner.
The point of contention is whether the 2018 amendment can act retrospectively, and have any effect on the former president, Goodluck Jonathan, whose tenure was completed before the passage of the Act.
A retrospective law is one that is to take effect at the point in time before it was passed. In other words, a retrospective law affects or influences past actions that occurred before the law was enacted.
It is worthy to note that the prohibition of retrospective laws as enshrined in Constitutions are restricted to criminal laws. Section 4 (9) of the Constitution of the Federal Republic of Nigeria provides that:
“Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect. “
Section 36 (8) Constitution of the Federal Republic of Nigeria have a similar provision, which says that no person will be guilty of a criminal offense if at the time it was committed, there was no law criminalizing such an act or omission.
The essential idea of our legal system is that current law should govern current activities. Clumsy though these images are, they show the inappropriateness of retrospective laws.
If we do something today, we feel that the applicable law should be the law in force today not tomorrow’s or a backward adjustment of it. Such we believe is the nature of law.
The age long Latin principle that lex prospicit non respicit, which translates to mean the law looks forward not backward, has been engrafted in various statutes, the grundnorm inclusive.
The courts of law have also upheld this principle as sacrosanct. The general principle of law is that the applicable law to an action is the law existing or the law that existed at the time the cause of action arose and not the law in force when the action was instituted.
In the case of Hope Democratic Party v. Peter Obi & 5 ors (2011) 18 NWLR (Pt. 1278) 80 at 100, at the time the petition was filed, the law in operation, which was the Constitution (before it was amended) provided that the Court of Appeal was the final court in matters relating to governorship elections.
The Court of Appeal had dismissed their petition on 24th February, 2011 and they appealed to the Supreme Court, relying on the amendments to the Constitution which took effect on 10th January, 2011.
The said amendments had granted a right of appeal to an aggrieved party in a governorship election dispute to appeal to the Supreme Court.
The Supreme Court was quick to jettison arguments of the Appellants and dismissed the inappropriate appeal since the law applicable to the parties were the Electoral Act, 2006 and the Constitution before the amendments, being the law in existence when the cause of action arose in the case.
Emphatically, the Supreme Court per Onnoghen, J.S.C (as he then was) stated thus;
“…This is in accord with common sense as a law yet to be in existence cannot have effect on rights and/liabilities existing prior to its creation, commencement…”
See also, Adesanoye v. Adewole (2000) 9NWLR (Pt. 671) 127.
Furthermore, in the case of Miscellaneous Offences Tribunal v. Okoroafor (2001) FWLR (Pt. 81) 1730 at 1756, the Supreme Court pointed out that no statute shall be construed so as to have a retrospective operation unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication.
It is important to note that the necessary and distinct implication must be in accordance with fairness and justice. There is a presumption that the legislature does not intend what is unjust, so courts lean against giving certain statutes retrospective operation.
They are construed as operating only in cases or on facts which come into existence after the statutes were passed, unless a retrospective effect is clearly intended. See Afolabi v. Gov of Oyo State (1985) 2 NWLR (Pt. 9) 734 SC.
Exceptions to the General Rule.
Although it is a cardinal principle of law that statutes are to operate prospectively and ought not to apply retrospectively, where by the express terms or provisions of the statute, it is to operate retrospectively, then such statute must operate retrospectively.
Thus one exception is where a retrospective effect of the law is clearly intended from the words of the statute.
A second exception is where the statute or amendment affects procedural matters. In as much as an appellate court cannot take into account a new law, brought into existence after the judgment appealed against has been tendered, because the rights of the litigants are determined under the law in force at the date of the suit; matters of procedure are different and the law affecting procedure is always retrospective.
The case of Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 396-397 paras. H-A per Bello, CJN (as he then was) made an observation on the exception to the general rule governing the operation of retrospective laws as follows;
“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 clear provisions of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No 16) Act, 2018, undoubtedly, makes no stipulation that its provision be applied retrospectively or otherwise.
A cursory look at the decided cases reveal that retrospective effect should not be given to the Fouth Alteration, No. 16. And former president Goodluck Jonathan can still contest for the 2023 presidential election, if he so wishes, which was the right which he had before the alteration to the Constitution took effect.
About the author
Chriapodiah Emmanuel is a law student, a prolific legal researcher. The author can be reached at [email protected]