By Achi Godwin William-Wobodo : IN DEFENCE OF THE CONSTITUTION. Defending the constitution is not just a civic responsibility but also a statutory obligation for every citizen. It therefore agitates me when it appears that the constitution is about to be breached, especially by those who are under higher obligation to defend it. In the last couple of months, I have read in the newspapers and also heard politicians in the mass media calling on the Mr. President to seek re-election for the 2015 Presidential Election, claiming that he has a Constitutional right to do so. Just as the politicians who are sympathetic to Mr. President call on him to contest, those who are opposed to him, especially from his political party, the Peoples Democratic Party, (PDP), say he should not contest because, according to them, he had in 2011 “allegedly agreed” with some of the party chieftains that he would not seek re-election in 2015. Whatever that means, it is within the purview of politics and their political party. Let me reiterate, by the way, that no matter how well crafted such an agreement might be, it cannot obliterate any legal right created by law, talk less of the Constitution, if at all, of any person whatsoever. However, this article has nothing to do with that concern as I do not intend to dabble into the politics of who becomes the President; and should I be interested, then it would be for no other reason than to ensure that a person who would be able to move the country forward is elected. The next point to make is that the decision to write this article is not to promote any person or region over another or to undermine anybody’s perceived rights. The decision is to rise in defence of the Constitution of my fatherland, which had always been abused over the years by the Nigerian Leaders for personal and selfish interest; be it military or civilians. I decided to join this conversation after I listened to Mr. President while fielding questions during a media briefing on 1st October, 2013 where he publicly declared that the Constitution of the Federal Republic of Nigeria allows him to seek re-election again into the office of the President in 2015, should he desire to do so. I was saddened because I had thought I was right about Mr. President’s silence all along, but with that statement, I realized that I had assumed wrongly that his silence over the period about the call for his re-election was based on a perfect understanding of the provisions constitution. At this point, I realized the enormity of work to be done and that we must act fast in defence of the Constitution of the Federal Republic of Nigeria, which every citizen has a legal obligation to defend. I have decided to commence this conversation with a question in order to challenge legal minds to work and to construe the spirit and letter of our Constitution in order to preserve its supremacy. The question is: Is President Jonathan truly eligible to run the Presidential Election in 2015? In answer, I make bold to say, NO! Contrary to the popular but unsubstantiated view been propagated by the few who control the media, President Jonathan is not eligible under the present Constitution to seek re-election in 2015. SUMMARY OF FACT For the sake of the readers, I wish to succinctly set out the background facts and circumstances that precipitated the assumption of office by President Jonathan as President of the Federal Republic of Nigeria. In 2007, President Jonathan ran election alongside late President Yar’adua as Vice President and President respectively. Both of them were DULY ELECTED. Some time in 2009, President Yaradua became ill and Dr. Jonathan, who was then the Vice President, was sworn in as the Acting President following the Resolution of the National Assembly, relying on the Doctrine of Necessity. Regrettably, on May 5, 2010, former President YarÁdua died while in office and President Jonathan was sworn in as the duly elected President of Nigeria, having been duly elected as such in 2007. Subsequently, President Jonathan sought for re-election and was again duly elected in 2011. What therefore is the implication of Mr. President’s reelection in 2011? Issue for determination For a legal audience, there is only one issue for determination, which is: Whether having regard to the Constitution of the Federal Republic of Nigeria and the circumstances of Dr. Goodluck Ebele Jonathan’s emergence as President of Nigeria, having been “deemed elected” twice as the President of Nigeria, firstly on the 5th May, 2010 and secondly on the 29th May, 2011, he is qualified under the Constitution to seek another re-election in 2015? LEGAL SUBMISSIONS The most popular argument by those who content that President GEJ is eligible to seek re-election in 2015 appears to be that since he did not “approach the electorates” in 2010 before he became president, then that term did not count. They seem to base their view on two sections of the constitution, ss.135(2) and 137(1)(b) and they do so in isolation of other sections. On the face value, their argument may appear plausible. However, it is my considered view that the contention that President Jonathan is eligible to seek re-election in 2015, relying solely on two sections of the constitution cited above is misconceived. These sections cannot be read in isolation of other provisions. A holistic and cursory look at the provisions that deal with the qualification, disqualification and tenure of office of the President, will show that that argument is not supported by the Constitution. To properly construe the intendment of the makers of the Constitution on the tenure and length of time a person should hold office as president, the meaning of tenure and term of office of President and the clause A person shall not be qualified for election to the office of the President if....he has been elected to such office at any two previous elections”; sections 132, 133, 134, 135, 137, 141, 142, 146, and every other relevant sections of the Constitution must be read together. This is in accordance with age long principles of interpretation of statutes. See Adesanya v. The President of the Federal Republic of Nigeria; Savannah Bank v Ajilo. To be able to resolve the sole issue for determination, the following questions must be answered: 1. Who can be sworn in as a President of Nigeria? 2. Does the Constitution of Nigeria, as presently is, envisage a free tenure for President Jonathan or any President at all? 3. Does the Constitution of the Federal Republic of Nigeria envisage a two-term President whose period in office could be less than a cumulative period of 8 year? 4. Dose the Constitution of Nigeria envisage that any person shall be in office as President of Nigeria; or as Vice President of Nigeria, for any reason whatsoever beyond a cumulative period of 8 year? On the duration or Length of a term of office of the President and the number of terms a person can hold office as President Section 135(2) of the Constitution provides that the President shall vacate 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. By this provision, the duration or length of a term of office of a President is either four years or less than four years, whichever is applicable, but certainly not exceeding four years. This view is also supported by s.146(2). Paragraph (b) of s.135(2) applied to President Jonathan first term, which made his first term less than four years. See the case of Nyako & ors v. INEC Again, in another clear provision, section 137(1) provides that “A person shall not be qualified for election to the office of the President if: (b) he has been elected to such office at any two previous elections”. This is the only section of the Constitution that makes reference to the number of terms a person can hold office as President. By simple interpretation, it means a person cannot seek election to that office a third term, which now is the basis for the two term presidency in Nigeria. The interpretation of section 135(2) paragraph (a) and (b) is that: (i) a person “first elected” as President vacates the office at the expiration of four years from the date he took the oath of office; (ii) a President who was subsequently sworn in (deemed elected) following the demise of the first elected President vacates office at the expiration of four years from the date the first elected President took oath of office; and (iii) a President who was subsequently sworn in (deemed elected) where the first elected could not be sworn in vacates office at the expiration of four years from the date the first elected person would have been sworn in. From the foregoing, only a “first elected president” (i.e. a person elected at first instance) has a term of four years under this section, and perhaps a subsequently elected (deemed elected) president who was sworn in on the original date the first elected president would have been sworn in but for his demise or otherwise. Accordingly, a president who was sworn in (deemed elected) mid term of the first (initially) elected President has a shortfall in term, which is the unexpired term of the first elected president. The implication is that a term of presidency in Nigeria may be four years or less than four years. There may be a term of one year. This situation applies to President Jonathan. [ss.135(2)(b), 146(2)] As stated above, subsection 1(b) of section 137 provides that “A person shall not be qualified for election to the office of the President if he has been elected to such office at any two previous elections”. The question is: has President Jonathan been elected to the office of President at any two previous elections? The answer is in the affirmative, YES! President Jonathan was first elected to the office of President on May 5, 2010, when he so took the oath of Allegiance and the Oath of office as President of Nigeria, having been duly elected for that office in April, 2007. In 2007, President Jonathan duly elected as Vice President was in the same election, elected as “potential President”. This is within the contemplation of the Constitution when it provided that in the event of the death of the President, the Vice President shall be sworn in as President. In the eyes of the law and from the provisions of the constitution, President Jonathan was “deemed to have been duly elected” as President of Nigeria for the first term in 2010 when he took the oath of Allegiance and Oath of office in that capacity. On who can be sworn in as President of Nigeria Another question that needs to be answered here is: who can be sworn in as the President under the Nigeria Constitution? In other words, can a person who is not “deemed elected” as President under the Nigerian Constitution, be sworn in as President of Nigeria? Put differently; who can take the Oath of Allegiance and Oath of Office for the Office of President under the Nigeria Constitution? By the provisions of ss.133 and 134 only a person “deemed to have been duly elected” can be sworn in or hold office as President of Nigeria. Also, S.142 provides that a candidate “shall be deemed to have been duly elected to the office of Vice President if the candidate for the election to the office of President who nominated him as such associate is duly elected as President in accordance with the constitution”. The combined effect of ss.142, 136(1) and 146(1) is that the Vice President is elected as; “Associate President”, “Alternate President”, “President No. 2”, etc. The import of these is that only a person “deemed to have been duly elected” as President, which includes a President elected directly by the electorate (Ss.132, 133 and 134) or a President deemed elected by the electorate pursuant to s.136(1) as in the case of a duly elected Vice President, shall be sworn in or take the oath of office as President. As has been established, only a person “deemed to have been duly elected” President can be sworn in as President of Nigeria. The operational words here are “deemed duly elected”. By the provisions above, there are two ways to “duly elect” a President. The first is by “direct election” by the electorate pursuant to Ss.132, 133 and 134; and the second is an “implied or deemed election” by the electorate pursuant to ss.146(1) and 136(1). This position is made clearer after reading s.146(2), which provides for a situation where the office of the President and Vice President become vacant. Under that circumstance, the Senate President shall hold office pending an election that would raise another “duly elected” person. This provision reorganizes the fact that the Senate President, though an elected public officer who also heads an arm of the Government, is not a person “deemed to have been duly elected” to the office of President, like the President or the Vice President. On how many years does the Constitution intend a person to be in office as President? By the combined reading of ss.135(2) and 137(1)(b), the intendment of the Constitution of Nigeria is clear, which is that no person shall hold the office of the President for any cumulative period exceeding eight (8) years. As I have mentioned earlier, s.135(2) only provides for the length of time a single tenure should last, which is for “a period of four years commencing from when the President takes oath of office in the case of first elected president, [s.135(2)(a)] or less than four years (unexpired period) from the date the person last elected took the oath of office or should have taken the oath but for his demise or otherwise, [135(2)(b)]. Whereas, s.135(2) sets out the duration or length of a single term or tenure of office for the President, s.137(1)(b) sets out the number of terms or tenures that a person can hold the office of President. The wordings are so instructive: “a person shall not be qualified for election to the office of President if: he has been elected to such office at any two previous elections”. Flowing from the provisions of the Constitution and in eyes of the law, from the date President Jonathan took the oath of Allegiance and Oath of office as President, he ceased from been a deemed duly elect Vice President and automatically became a deemed duly elected President. It is important to mention that the operative date here is NOT the date that President Jonathan was sworn in as Acting President; it was the date he was sworn in as substantive President of Nigeria. By the end of 2015, President Jonathan would have served as deemed duly elected President of Nigeria for six (6) years; would have served two terms, would have been deemed duly elected to the office of President at two previous elections; firstly as a person “deemed to have been duly elected as President” to “hold office for the unexpired term of office of the last holder (Yaradua) of the office” of President by the implied election of the electorates under the constitution – [134, 135(2)(b), 136(1), 146(1)]; and secondly as a person “deemed to have been duly elected” as “first elected President” by direct election of the electorates - [134, 135(2)(a)]. The fact is that should President Jonathan seek re-election in 2015 and wins, he would have been in office as President for more than 8 years by end of 2019, contrary to the letter and spirit of the Constitution. This is obviously not the intendment of the Constitution. On whether the Constitution envisages any “free tenure” The argument that President Jonathan did not run for election in his first term and that his term between 2010 and 2011 was in completion of the tenure of late President YarÁdua without more and therefore should not count in the computation of his stay in the office as President is not only implausible, but also not supported by law. The Constitution does not envisage or contemplate any free tenure for the President, Vice President or any elected official for that matter. Now, let me challenge the reasoning and this interpretation of the law by creating few scenarios: (i) Suppose on a May 29, a day set aside for the swearing in of a newly elected president, the President after taking his oath of office, he went home and was so excited that he had heart attack and died and in accordance with the Constitution, the Vice President is immediately sworn in on the same day May 29 as the President. Is the interpretation as adduced by those who argue for President Jonathan’s third term in disguise, to the effect that the Vice President now President will rule for 4 years, under the guise that he was serving out the tenure of the deceased President, and thereafter seek re-election for two more terms of 8 years? Or, (ii) Suppose that one week after a President and his Vice President took the oath of Office, they were both at a national function in a building and a failing aircraft accidentally crashed into the building, killing both of them; a new election was conducted pursuant to section 146(2) and a new President elected to hold office for the unexpired term (3 years, 9 months) of office of the late President. Is the interpretation as adduced to the effect that the newly elected President under the circumstance would hold office for 3 years and 9 months, under the guise that he served out the tenure of the deceased President and would thereafter seek reelection for two more terms of 4 years each? Or (iii) Suppose that a President vacates office under this Constitution after one year of his assumption and his Vice President (Mr.J) was duly sworn in for the unexpired term, and at the expiration of the said 3 year unexpired term, the new President (Mr.J) (formerly the Vice President), for some reasons, could not win his party nomination and was therefore not re-elected President. In his stead, another person, Mr.X was elected for the next four years. At the expiration of the subsequent four years by Mr.X, Mr.J re-contested for election into the office of the President and won. Is the intendment of the Constitution that such a President (Mr.J) having been President for initial 3 years of an unexpired term and a subsequent 4 years of a new term, (a total of 7 years), is eligible for another term to the office of President merely because he served out the unexpired term of a vacated President? The answer to the question in all three scenarios is in the negative. NO! The implication of such an interpretation, i.e. that President Jonathan is eligible to another re-election in 2015, is that a person could hold office for more that 8 years, even up to 11 to 12 years, as demonstrated by the above scenarios, contrary to the provisions of the constitution. This interpretation is obviously mischievous and not the intendment of the Constitution and its makers. It is this mischief that the Constitution intends to cure, when it provided a maximum of 8 years period. The Constitution of Nigeria as it is today does not envisage any free tenure for the President or anybody at all You will notice that scenario no 2 above introduced the element of an election. In course of a conversation with a friend, one of the proponents of another term for President Jonathan, I created this same scenario but with an unexpired term of 4 months; in other words, the newly elected President and Vice President have 4 months to complete their term. Ironically, my friend admitted that the 4 months amounts to a term under the Constitution, merely because the said President and Vice President presented themselves for an election pursuant to s.146(2), yet he remained adamant that President Jonathan’s more than 12 months term pursuant to ss.136(1), 146(1) and 135(2)(a) is free and does not constitute a term. This is as unconstitutional as it is ridiculous. On whether a person can become President without seeking for votes from the electorates. As I have shown above with the interaction with my friend, most of those who have continued to agitate for a third term in disguise for President Jonathan tend to also contend that since the President did not canvas for vote in 2010 he could not be said to have been elected President as at 2010 when he first became President pursuant s.136(1). It is trite that under a democratic setting, election is the most acceptable process for choosing a President, however it does not derogate from others existing means provided by the Constitution for becoming elected as President. Thus, whereas no person can become President of the Federal Republic of Nigeria without been elected, however, a person may become President without “an election process”. In other words, a person can become President without approaching the electorates. Let me substantiate this using a scenario: Suppose “A” and “B” ran elections and were elected as President and Vice President respectively and were duly sworn in. Few months after swearing in, the President “A” dies and the Vice President “B” is sworn in as President. He then nominates “X” as Vice President pursuant to s.136(1) and “X” becomes Vice President, though he did not approach the electorate, but upon swearing in, he is deemed to have been duly elected Vice President Suppose that afterwards, the new President “B” for some reason ceases to be President, and the Vice President “X” is sworn in as President. Thereafter, he nominates “Y” as Vice President, pursuant to S.136(1) of the Constitution. At this point “X” and “Y” would have been President and Vice President respectively, yet none of them approached the electorates. In the circumstances and in the eyes of the law, could it be said that “X” and “Y” are not persons deemed duly elected to the office of President and Vice President respectively merely because they were not voted for directly by the electorates? In the eyes of the law and from the provisions of the Constitution of Nigeria, both “X” and “Y” are presumed persons “deemed to have been duly elected” as President and Vice President respectively, hence they are sworn in as such. Though they may not have been elected by means of an election process, provided that the process for their nomination into office was as provided for by the Constitution of Nigeria, they are presumed as persons “deemed” to have been duly elected in those capacities. In interpreting a statute, the whole of the statute must be construed together in order to produce the desired intendment of the Lawmakers. The intendment of the Constitution is that (1) no person shall occupy the office of the President for a period exceeding 8 years cumulatively; and (2), no person shall hold office of President for more than two terms. Whereas the Constitution intends that no person shall hold office of President for more than 2 terms that would exceed a cumulative period of 8 years, it however envisages a two term that could be less than a cumulative period of eight (8) years. A combined reading of ss.146(2), 136(1), 137(1)(b), 135(1)(2) clearly shows this. Regrettably, this applies to President Jonathan. On the distinction between 135(1)(2) and 137(1)(b) of the Constitution of Nigeria and the 22nd Amendment to the Constitution of the United States of America. Again, some of the proponents of a third term for the President Jonathan are quick to cite America as example (the 22nd Amendment to the Constitution of the United States of America). There is a clear distinction between the provisions of the 22nd Amendment to the Constitution of the United States of America and the provisions of 135(1)(2) and 137(1)(b) of the Constitution of Nigeria. The 22nd Amendment provides that No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. The wordings of this provision are clearly different from wordings of 135(1)(2) and 137(1)(b). The effect of the 22nd Amendment is that: (i) no person shall be elected President of America for more than twice; (ii) a person who assumes the office of President by reason of the removal, withdrawal, death or otherwise of another (the first elected) President, shall be eligible (a) to one more term if he held the office for more than two years; (b) to two more terms if he held the office for less than two years. The intention is to cure a mischief from both ways; firstly to ensure that nobody stays in office for more than two terms and secondly to ensure that nobody is short changed by reason of his election to complete the unexpired term of the vacated President. The 22nd Amendment envisages that a person may be President for up to 10 years, but not more. The 22nd Amendment also makes it clear that any unexpired period of a deceased President, which period is more than two years constitutes a term for whoever steps into the deceased or removed President’s shoes. This is not the case with the Nigeria Constitution. The Nigerian Constitution does not envisage anything more than 8years. In the Nigerian context, regardless of the duration, whether a term last for four years or two years, one year or for six months, it is a term. On the need for citizens to rise above board on Constitutional issues and to avoid Constitutional crisis Beneficiaries of President Jonathan’s administration fear that proper interpretation of the Constitution will deprive their benefactor and limit him to a cumulative six-year, hence the absurd interpretation of the Constitution. The point must be made that every citizen owes the Constitution an obligation, which is to defend it; this includes upholding its letter and spirit. To attempt to subvert the Constitution for whatever reason is not only irresponsible, but also unpatriotic. President Jonathan became President by Constitutional providence; he must not only be heard to defend the constitution but also be seen to manifestly demonstrate commitment and willingness to abide by its provisions, even where it seems that his personal right has been limited by the same Constitution. He must realize that every legal benefit comes with obligation and limitations. Any attempt by President Jonathan to seek re-election into the office of the President will not only be misplaced and unconstitutional but also a willful disregard and calculated attempt to breach the Constitution that he swore to defend. Any attempt to forcefully achieve that will induce a constitutional crisis, which is not in the best interest of the nation and the tenant of the law. Citizen must at all times demonstrate patriotism and commitment to the unity and peaceful co-existence of the nation and not to be blinded by primordial sentiments and tribalism. The Constitution is the grund-norm of the nation, the essence of our national existence and must be protected. One more time, President Jonathan is not eligible to seek re-election in 2015.
Posted on: Sat, 20 Sep 2014 20:06:24 +0000
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