Constitutional lawyer, Chief Mike Ozekhome SAN says former President Goodluck Jonathan is “eminently qualified” to vie for the 2023 presidency.
He stated this in a statement on Friday while wading into the controversy generated by rumour of Jonathan’s interest.
Some prominent lawyers, including Femi Falana SAN, have argued that the former president, who has not declared interest in the race, was not eligible to do so, citing legal reasons.
However, Ozekhome offered a rebuttal, showing why the law empowered Jonathan to contest if he wanted to.
Read full statement below:
INTRODUCTION
Nigeria is a country of one major news item per day. At times, one scandal per day. The hot issue in the polity currently generating national ruckus, hoopla and bedlam is the presumed intention of Dr Goodluck Ebele Jonathan to run for the 2023 presidency. I have carefully read the many arguments of those (I call them antagonists) who believe that Dr Goodluck Ebele Jonathan is disqualified from contesting the 2023 presidential election. According to them, he had already done two terms of 4 years each and will thus be ineligible to contest for a third term. They cite the Fourth Alteration (No 16) Act, which was signed into an Act by President Muhammadu Buhari on the 11th of June, 2018. The section they are relying on is section 137(3) of the said Fourth Alteration to the 1999 Constitution, which provides that “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”.
THE ANTAGONISTS ARE DEAD WRONG IN THEIR LEGAL POSTULATIONS
The truth of the matter is that the antagonists of Jonathan running in 2022, in their strange line of argument, are mainly relying on the above section 137(3). They have probably not adverted their minds to the provisions of sections 141 of the Electoral Act, 2010, as amended; and section 285(13) of the same Fourth Alteration to the 1999 Constitution, as amended, the very Alteration they are relying on. More revealing is that these antagonists are probably not aware of an extant and subsisting Court of Appeal decision where Jonathan was frontallly confronted and challenged before the 2015 presidential election, with the same ground of being ineligible to contest the said 2015 election, having allegedly been elected for two previous terms of office. The very section 137(3) being relied upon by the antagonists, was signed into law in 2018, three years after Jonathan had left office; and 7 years after he took the oath of President upon Yar’Adua’s demise. Can Jonathan be caught in the web of section 137(3) retrospectively? We shall see that anon.
The case of Jonathan running had been challenged in CYRIACUS NJOKU V GOODLUCK EBELE JONATHAN (2015) LPELR-244496 (CA). In that case, the Court of Appeal, Abuja Division, held that President Goodluck Jonathan had only taken the oath of office once and therefore upheld his eligibility to contest the then Nigeria’s presidential election slated for March 28, 2015.
The intermediate court held that the oath of office President Jonathan took in 2010 was merely to complete the “unexpired tenure” of late President Umar Yar’Adua, who had died while in office as President.
The appeal had been lodged before the court by one Cyriacus Njoku, who had challenged the ruling of the High Court of the Federal Capital Territory, Abuja, which on March 1, 2013, had dismissed the suit he filed to stop President Jonathan from contesting the 2015 polls.
In the lead judgement delivered by Justice Abubakar Yahaya, the full panel of the court unanimously held that President Jonathan had only spent one term in office as President, going by the provisions of the 1999 Constitution.
Recall that the then Vice President Jonathan had been empowered as Acting President on February 9, 2010, following a motion for operation of the “doctrine of necessity”, by the Senate, owing to the protracted stay of late President Umaru Yar’Adua in Saudi Arabia on medical grounds.
When President Yar’Adua eventually died on May 5, 2010, Jonathan was sworn in as president to serve the unexpired residue of office of Yar’Adua. Jonathan was later elected President in 2011 for the first time, on his own merit, after he contested the election.
Mr. Njoku had contended in his suit that Jonathan had already taken the oath of office and allegiance twice and therefore, should be disqualified from contesting the 2015 election, as any victory he secured would amount to being sworn in thrice.
However, the Court of Appeal held that the oath that Jonathan took in 2010 was merely to complete the unexpired tenure of late Yar’ Adua; adding that by virtue of Section 135 (2)(b) of the 1999 Constitution, Jonathan only took his first oath in May, 2011; and not May 5, 2010, when he succeeded late Yar’ Adua. The Court of Appeal further held that disqualification is through election, not oath-taking.
The intermediate court’s luminous judgement read in part:
“In this appeal, it is not controverted by the appellant that the first oath taken by the first defendant (Jonathan) was the oath he took as the Vice President and not as President… But he took the oath in May 2010 to complete unexpired tenure of late Umaru Musa Yar’Adua. Section 37(1)(b) disqualifies a person from contesting for president if he had been elected twice. Disqualification is through election and not oath taking. Election is a process of choosing a person to occupy a position by voting. When election is given its literal meaning, it connotes when a voting is employed to choose a person for political office. This did not take place when Jonathan stepped into the shoes of his Principal who went to the great beyond. To say these things were done is to import words not used by the constitution. Section 146(1) of the constitution cannot be deemed an election for a VP to step into the office of a President. Election involves conducting primaries by party, nomination, election and announcement of results. All these processes were not done. If a VP succeeds a President that dies, that cannot be challenged. It is a mode of stepping into the vacant office provided for by the constitution. When a President dies, the Vice President automatically becomes President as provided for by S130 (1)(2) of the 1999 constitution… It was not election that produced the first respondent in May 2010, the oath he took then was not an oath of elected President as provided for by Section 180 of the constitution. The process of election was followed in 2011. The oath of office taken in 2011 was the first oath taken by the first respondent as an elected President having fulfilled all the process of election.… 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. All these processes can be challenged in a Court of law and if successful, the election would be annulled. 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, as it were, as no letter of appointment is necessary from anybody. The Vice-President automatically becomes the President, by virtue of his being the Vice-President. An example can be found in Section 130(1) and (2) of the 1999 Constitution.” Per ABUBAKAR DATTI YAHAYA, JCA (Pp 40 – 41 Paras E – D)
The Court of Appeal further upheld the decision of the lower court which had dismissed Mr. Njoku’s suit for lack of locus standi. It noted that “it is fundamental that where a party lacks locus, the court cannot assume jurisdiction….We agree with the lower court that the appellant has no locus to sue”.
On the question of the cause of action, the court held that the case of the appellant was “speculative and imaginary as none of the reliefs he sought accrued to him any benefit”.
Indeed, the Court of Appeal had awarded the sum of N50, 000 each as cost to the defendant, President Jonathan.
DID PRESIDENT JONATHAN SATISFY THE PROVISIONS OF THE CONSTITUTION AND THE ELECTORAL ACT WHEN HE SUCCEDED YAR’ADUA IN MAY, 2010?
For a candidate to be declared elected winner, he must have participated in all the stages of the election. These are the words of section 285(13) of the Fourth Alteration to the 1999 Constitution and section 141 of the Electoral Act, 2010, as amended. They provide that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person have not fully participated in all the stages of the said election”.
Surely, when President Jonathan in May, 2010 stepped into the shoes of late President Yar’Adua, he merely fulfilled constitutional provisions. He did not and could not have participated in all stages of the election such as to be deemed to have been a candidate. It was not an election, but the “doctrine of necessity”, that made him President. In the eye of the law therefore, Jonathan never contested any election. See the cases of MODIBBO V. MUSTAPHA USMAN & ORS (2020) NWLR (Pt 1712)470 (SC); OZOMGBACHI V. AMADI (2028) LPELR-45152 (SC); CPC V. OMBUGADU (2013) LPELR-21007 (SC); PDM & ANOR V. INEC (2020) 17 NWLR (Pt 1753) 303 (SC).
NO ONE IS ASKING FOR TENURE EXTENSION FOR JONATHAN
The case of SENATOR RASHIDI LADOJA V. INEC (2007) 12 NWLR (Pt 1047)119 (SC) is quite distinguishable from the Jonathan scenario. The Supreme Court held in that case that neither it nor any other court has the power to extend the period of four years prescribed for a Governor of a state beyond the terminal date of either 4 years or cumulative 8 years.
This also accords with the case of MARWA V. NYAKO (2012) 6 NWLR (Pt 1296) 199 (SC), where the apex court described the time fixed by the Constitution for doing anything as “immutable, fixed as the rock of gibrata which cannot be extended, elongated, expanded, or stretched beyond what it states”. See also section 180(1),(2) and (3); and section 182 (1)(b) of the 1999 Constitution.
Indeed, in dealing with the amendment of July, 2010, in section 180(2) (2A), the Supreme Court again kicked against retrospectivity in the same MARWA V. NYAKO (supra), when, coram Adekeye, JSC, it declared: “The amendment of July, 2010, is not meant to be retrospective as the event in this appeal occurred in 2007 and 2008 respectively. The amendment has not changed the law, but is merely a clarification to the existing provision”
RETROSPECTIVITY OF LEGISLATION
Aside Jonathan being completely cleansed of the virus of ineligibility to contest the 2023 presidential election by the still extant Court of Appeal decision in Njoku’s case, as Naaman the leper was, after dipping himself in the River Jordan seven times, Jonathan is also aided by the golden canon of interpretation to the effect that an enactment does not operate retrospectively or retroactively to take away from citizens, enured and vested rights.
We may now ask the question: What is the effect of Buhari signing into law section 137(3) of the Fourth Alteration to the 1999 Constitution in 2018? The answer is found in section 2 of the Interpretation Act which provides that:
“1. An Act is passed when the President assents to the Bill for the Act, whether or not the Act then comes into force;
Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, come into force
In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;
In any other case, on the day when the enactment is made”.
It is, therefore, clear from section 2 of the Interpretation Act that section 137(3) of the Fourth Alteration to the Constitution took effect from 11th June, 2018, when President Muhammadu Buhari assented to it, and not earlier. Section 137(3) is anchored on section 318(4) of the 1999 Constitution which provides that, “the Interpretation Act shall apply for the purposes of interpreting (its) provisions”.
Section 137(3) is one piece of legislation that can be termed retrospective or retroactive legislation, and it is frowned upon.
On retrospectivity of legislation, the apex court, coram Justice Kekere-Ekun, J.S.C, held in the case of SPDC V. ANARO & ORS (2015) LPELR-24750(SC) at (Pp. 64 paras. B), thus:
“There is a general presumption against retrospective legislation. It is presumed that the legislature does not intend injustice or absurdity. Courts therefore lean against giving certain statutes retrospective operation. Generally, statutes 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. It was held inter alia, in: OJOKOLOBO VS ALAMU (1987) 3 NWLR (Pt.61) 377 @ 402 F-H that it is a fundamental rule of Nigerian 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. See also: Udoh Vs O.H.M.B. (1993) 7 NWLR (Pt.304) 39 @ 149 F – G; ADEGBENRO VS AKINTOLA (1963) All NLR 305 @ 308.”
Similarly, in ALEWA V. SOKOTO STATE INEC (2007) LPELR-8388(CA) (PP. 32 PARAS. A), the Court of Appeal, per Ariwoola JCA (as he then was), held thus:
“It is however settled law that, unless the law makers expressly state otherwise, a statute operates prospectively but not retrospectively. It is a cardinal principle of English Law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implications. The position is the same in this Country. In OLANIYI VS. AROYEHUN (1991) 5 NWLR (pt 194) 652, the Supreme Court held that:- “A construction like other statutes operates prospectively and not retrospectively, unless it is expressly provided to be otherwise. Such legislation affects only rights which came into existence after it has been passed.” See also; CHIEF C. ODUMEGWU OJUKWU VS. CHIEF OLUSEGUN OBASANJO & ORS. (2004) 7 SCM 53 at 93; AFOLABI & ORS. V. GOVERNOR OF OYO STATE (1985) 2 NWLR (pt 9) 734; OJOKOLOBO VS. AREMU (supra);
ADESANOYE V. ADEWOLE (supra) at 147 B-C & D-E; West v. Gwyne (1911) 2 CH 1; A.G. Federation v. A.N.P.P. (2003) 15 NWLR (844) 600 at 648 G -H; SA’AD V. NYAME (2004) All FWLR (201)1678; EGUNJOBI V. FRN (2012) LPELR-15537(SC), (PP. 34-35 PARAS. F); ADEGBENRO V. AKINTOLA (1963) 2 SCNLR 216; ADESHINA V. LEMONU (1965) 1 All NLR 233; THE SWISS AIR TRANSPORT CO. LTD V. AFRICAN CONTINENTAL BANK LTD (1971) 1 All NLR 37; ATTORNEY GENERAL EAST CENTRAL STATE V. UGWUH (1975) 5 SC 13″.
Indeed, section 4(9) of the Constitution strips the NASS “in relation to any criminal offence”, the power to “make any law which shall have retrospective effect”. Though this section specifically deals with criminal offences, judicial decisions clearly show that it operates with equal force to civil matters.
Thus, in MODU V. FRN (2016) LPELR-40471 (CA), the intermediate court held that:
“The argument that the Interpretation Act applies to civil legislations only is not only untenable but flawed. A legislation is a legislation and there is nothing in the Interpretation Act to indicate that it only applies to civil and not criminal legislations”. Per YARGATA BYENCHIT NIMPAR, JCA (Pp 18-18 Paras C-E)
CONCLUSION
For those who were too young to know that Jonathan left office since May 29, 2015, the oath of office and oath of allegiance which he subscribed to in 2015 were taken prior to the enactment of section 137(3) of the Constitution in 2018. Consequently, as held in MODU V. FRN (supra), all rights, duties, obligations and interests created under section 137 (3) are inapplicable to his rights, duties and obligations which had accrued to or enured in him before the said enactment.
Thus, the court held in the case of the ATTORNEY GENERAL OF THE FEDERATION V. ALL NIGERIAN PEOPLES PARTY (ANPP) & 2 ORS. (2003) 15 NWLR (Pt. 844) 600 @ pages 648-649, paras. E-B, that:
“A statute is deemed to be retrospective where it takes away 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 past… Based on the presumption that a legislature does not intend what is unjust, the courts have always leaned against giving statutes a retrospective effect and usually regard them as applying to facts or matters which came into existence after the statutes were passed unless it is clearly shown that a retrospective effect was intended by the legislature. In the instant case the constitution came into being on 29th May, 1999 and all rights, liabilities and privileges as contemplated by the circumstance of the arose as of that day. Consequently, its provisions can only be read prospectively.”
Furthermore, the court held at page 649, paras. C-D; 661-662, paras. F-C; 665, paras. A-B as follows:
“One of the cardinal principles of interpretation of statutes is that no rule of construction is that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise that as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment…”.
The court nailed it when it held at page 667, paras. C-D that:
“A constitution, like other statutes, operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such legislations affect only rights which came into existence after it has been passed.”
A cursory examination of the various provisions of the Constitution and all the appellate court decisions cited above make it crystal clear that the speculated disqualification of Dr Goodluck Ebele Jonathan is grossly misconceived by the antagonists, as the Constitution must be progressively and not retrogressively construed; prospectively and not retrospectively interpreted. More significantly, the Alteration Act itself does not make any express provision that the said inserted sub-section 137(3) would operate retrospectively. To that extent, the principle of expressio unius est exclusio alterius (the express mention of one thing is the exclusion of others) applies here. See MADUMERE & ANOR V. OKWARA & ANOR (2013) LPELR-20752(SC).
It is clear that those deliberately or erroneously misinterpreting the clear position of the law may be baying for Jonathan’s blood, possibly as a potential candidate who may subvert the chances of their preferred candidates. I do not view issues from such narrow ad homine prism and blurred binoculars. It will be grossly unfair, unconstitutional, unconscionable and inequitable to deny Jonathan of the right to contest the 2023 presidential election when our extant laws and appellate court decisions permit him to. The question of whether Jonathan really needs to subject his glittering credentials and internationally acclaimed reputation to the muddy waters of a fresh competition with persons, some of whom were his personal appointees as president, is another matter altogether. Only him, and not the present state of the laws in Nigeria, can answer that question and decide his own fate. But, as regards his eligibility to contest, Dr Goodluck Ebele Azikiwe Jonathan is pre-eminently constitutionally, morally and legally qualified to contest the 2023 presidential election. So, run, run, run, GEJ, if that is your wish and desire. Goodluck to Goodluck.
CHIEF MIKE OZEKHOME, SAN, OFR, FCIARB, LL.M, Ph.D, LL.D.