As the 2023 general election is fast approaching, political men are already showing interest to vie for the Number 1 seat of the federation. This include but not limited to Professor Yemi Osinbajo; the current Vice president, Bola Ahmed Tinubu; a former Governor of Lagos state and APC National leader, Atiku Abubakar; former vice president and many times presidential aspirants, Bukola Saraki; former Senate President and many keyholders.
Recently, reports shows that some Nigerians want the former president Goodluck Ebele Jonathan to run for presidency, even some of his supporters were said to have stormed his office in the FCT on Friday, 22nd of April, 2022.
This is connected to many facts but to mention a few among of which are political and tribal. But in the light of this article, the writer will be confined to the legal view alone and try as much as possible not to be sentimental or emotionally involved!
Recall, that after the demise of the Ex-president Umar Musa Yaradua on 5th day of May, 2010 Goodluck Jonathan was sworn in as the president to serve the complete part of the tenure of the demise being the Vice president to the demise. He later contested the 2011 election and won but he met his waterloo when he contested the 2015 election where he lost to the current President Muhammadu Buhari.
Having laid this historical background, it’s prima facie that the former president Goodluck Jonathan has already served for 5 years, had it be he won the 2015 general election, he would have rule the country for 9 years.
But the big question is: Can he rule for 9 years despite the constitutional provision that no president/ governor shall rule for more than 8 years?
CAN GEJ RECONTEST THE NEXT ELECTION?
Having laid a solid foundation in the background, one will easily agree with me that it will have been a great legal tussle had it been that he won the 2015 election. Hence, it will be right to say: “the question is of great constitutional importance which must be argued on its merit and not hinged upon technicalities.”
To start with, Section 135(2) of the 1999 constitution of the Federal Republic of Nigeria hereinafter referred to as CFRN provided thus:
Subject to the provisions of subsection (1) of this section, the President shall vacate his office at the expiration of a period of four years commencing from the date, when –
(a) in the case of a person first elected as President under this Constitution, he took the Oath of Allegiance and the oath of office; and
(b) in any other case, the person last elected to that office under this Constitution took the Oath of Allegiance and oath of office or would, but for his death, have taken such Oaths.
Section 137 futher stated 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; or
A community reading of this sections and all other sections will make it apparent that a president can only serve for two terms of eight years. The court has severally pronounced that except when the nation is at war, no elected president or governor shall spend more than eight (8) years of two (2) terms cumulative tenure, see Obi v. INEC, Labour party v INEC, Ladoja v. INEC and many others.
Will GEJ spend 9 years despite these provisions and pronouncements?
Since there was no constitutional provision to that effect, no one could challenge former president Goodluck Jonathan’s reelection bid then in 2015. However, when he lost the election, the National Assembly thought it wise that it was necessary to address this issue so as to avoid future controversies.
In other to achieve that, a bill was sponsored by the Senate to amend the Constitution. The bill was passed by the Senate on the 26th July 2017 and the House of Representative gave its concurrence on the 3rd of October 2017. President Mohammadu Buhari assented to it on the 11th of June 2018.
The Act is called the Constitution of the Federal Republic of Nigeria, 1999 (fourth alteration, No. 16) Act, 2017.
The act altered section 137 of the Constitution by inserting after subsection (2), a new subsection (3). The new section 137(3) of the 1999 constitution, provides as follows:
(3) 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.
Similarly, section 182 of the Constitution was also altered by inserting after subsection (2), a new subsection (3). The new section 182(3) provides thus:
(3) 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 such office for more than a single term.
From the above provisions of the constitution, it is evident that a person who was sworn in as president or governor to complete the tenure of another, can only occupy that office for a single term and no more.
Even if such a person is sworn in for a month, a week or even a day, such a person is only eligible for reelection for a single term. However, the same cannot be said of the position of the Vice President or the Deputy Governor as there is no provision in this respect as regards them.
Based on the fourth alteration (no. 16) to the Constitution, former president Goodluck Jonathan cannot contest for the position of president of Nigeria come 2023 or any other election year except this provision is amended.
As for now, GEJ can only contest for House of Assembly, Representative or Senate or Bayelsa state governor for a tenure and he may run as either the office of deputy governor or vice president as well although it may be morally wrong but it’s constitutionally allowed.
In this light, it’s important to address a salient issue….won’t the amendment seems to be a retrospective legislation in the light of GEJ?
I feel this question is important because I’ve for many times trigger the questions among my course mates where they all give divergent opinions. Hence I’ll briefly analyse what a retrospective legislation is its effect in our judicial system and connect it to the issue at hand.
What is retrospective legislation?
Maxwell on the Interpretation of Statutes makes allowance [see 12th Edn. (1969) p.25]. The learned author said- “It is a fundamental rule of English law (I make bold to say – also of our 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 arises by necessary and distinct implication.”
See AFOLABI & ORS. V. GOVERNOR OF OYO STATE & ORS.(1985) LPELR-SC.251/1984, Per Eso, J.S.C. (P.62, Paras.A-C)
Kekere Ekun JCA (as she was then)in the case of Alewa v. Sokoto I.E.C. (2008) ALL FWLR (Pt. 402) 1043 at 1060, paras. E – F (CA) defined retrospective legislation thus: “A retroactive is defined as a legislation that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect.
A retroactive law is not unconstitutional unless- (1) it is in the nature of an ex post facto law or bill of attainer; (2) it impairs the obligation of contracts; (3) it divests vested rights; or (4) it is constitutionally forbidden. See Black’s Law Dictionary, 8th Edition”.
What is the effect of retrospective legislation?
Although, our laws frown at it but when such law is made, it’s constitutional. The supreme court per Justice Niki Tobi JSC in the case of Adesanoye v. Adewole (2006) LPELR-SC.171/2004 pronounced thus:
“While courts of law frown upon retrospective legislation as they are not the best in the development of the rule of law and more particularly the concept of fair hearing, they are not unconstitutional and therefore part of our jurisprudence.
This is because the legislatures have the constitutional right to enact a statute and make it apply retrospectively. In so far as such a statute is donated by section 4 of the Constitution, courts of law do not have the jurisdiction to question the vires of the statute.
“In Adesanoye v. Adewole (Supra) the Supreme Court classified retrospective legislation into three classes, namely:
(a) Statutes that attach benevolent consequences to a prior event.
(b) Statutes that impose a penalty on a person who is described by reference to a prior event, but that penalty is not a consequence of the event, and
(c) Statutes that attach prejudice consequences to a prior event. There is under our law a presumption against retrospective legislation and it is the third class above that attracts the presumption against the retrospective effect when it 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 of transactions or considerations already passed.
However, whether a retrospective operation will be given to such a statute will depend on the language of the statute and the peculiar facts of the case. ” Per EKPE, J.C.A. (Pp. 27-28, Paras. F-D)
Is the law retrospective in respect to GEJ?
The answer to this is straight forward and devoid of ambiguity. The law is not a retrospective legislation, even if argued that it’s retrospective the court can’t question the right of the legislature, it’s non-justiceable.
Despite the yearning of some people that former president Goodluck Jonathan should come back and contest as president, it should be noted that this yearning is one that holds no water and if a party risk it to present him (GEJ) as its presidential candidate in the forthcoming election, such party is at demerit as the court won’t allow any technicality to over ride the provisions of the grundnorm (constitution).
While I wish the former president well in all his future endeavors, I pray that the Almighty grant us a conscious leader who will pilot our affairs to the promised land.
About the author
Keulere Nabil Olarewaju
LLB 2, Ahmadu Bello University, Zaria, Kaduna state
Email: [email protected]