To the chagrin of many patriotic Nigerians, President Jonathan was heard gleefully welcoming his endorsement and accepting same even when he knew or ought to know that such an act would contravene the Constitution of the Federal Republic of Nigeria that he had sworn to uphold, protect, preserve and defend. These and today’s declaration by President Jonathan now confirm that President Jonathan is poised to contest the election to the office of the President of the Federal Republic of Nigeria for the third term. My worries are the constitutional implications of such an act. Having regard to the provisions of sections 135(1) & (2)(b) of the 1999 Constitution, as amended, is President Jonathan yet qualified to contest or be elected to the office of the President of the Federal Republic of Nigeria in the forthcoming general elections? I am talking from the following premise- That President Jonathan was first elected and sworn into the office of President Federal Republic of Nigeria with late Alh Umaru Musa Yar’adua on may 29, 2007 in consonance with the combined effect of the provisions of sections 135(1) & (2), 142(1) & (2) of the Constitution of the Federal Republic of Nigeria. That in the course of that term, President Jonathan by a fiat of the National Assembly was sworn in as Acting President following the prolonged absence of late President Umaru Musa Yar’adua on health grounds. He acted as such for a period of about 3 months beginning from 9th February 2010 to 6th May 2010. That upon the death of late President Yar’adua, President Jonathan was again sworn in as the substantive President of the Federal Republic of Nigeria in consonance with the provision of section 146(1) of the Constitution. This was precisely on 6th May 2010. That term or tenure eventually expired on May 28, 2011 whereupon President Jonathan sought and was re-elected as President and sworn in for a second term on May 29th, 2011. That the desire of President Jonathan to contest the 2015 presidential election is in contemplation of this term or tenure expiring on May 28, 2015. Based on these facts, my humble view is that at the close of business on May 28, 2015 President Jonathan would have being in office for 8 years! This is what you get when you add up the 3 years late President Yar’adua and President Jonathan were jointly in the saddle and steering the affairs of this country plus the 8 months he acted as President on the fiat granted him by the National Assembly, plus the 1 year that he occupied the office with Vice-President Namadi Sambo before the election of 2011, plus the 4 years which would be expiring 28th May, 2015. Precedents in this country since 1979 would demonstrate abundantly that the Nigerian constitutions (both 1979 and 1999) intend and, Nigerians understand it, that at any material time the duo of President and Vice President of the Federal Republic of Nigeria as well as Governor and Deputy Governor of a State in Nigeria enjoy a joint ticket and fate. This is the reason why no person may be qualified for election to the office of President of the Federal Republic of Nigeria or Governor of a State without nominating another as his Vice President or Deputy Governor. This is also the reason why the disqualification or disability of either of the two persons occupying the office of President or Vice President or Governor or Deputy Governor automatically disqualifies or disables the other. Section 142 (1) & (2) of the 1999 Constitution as amended refers. “(1) In any election in which the foregoing provisions of this part of this chapter relates, a candidate for an election to the office of the President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of the Vice President and that candidate shall be deemed to have been duly elected to the office of Vice President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid.” “(2) The provisions of this part of this chapter relating to qualifications for election, tenure of office, disqualifications, declaration of assets and liabilities and oath of President shall apply in relation to the office of Vice President as if references to President were references to Vice President.” To demonstrate this fact, may I recount the following political development/history in Nigeria since the so called second republic to date: in 1979 Alhaji Muhammad Abubakar Rimi and Alhaji Bibbi Faruk were elected as Governor and Deputy Governor of Kano State under the platform of the Peoples Redemption Part (PRP). Later in 1981 Alhaji Bibbi Farouk was impeached and one Alhaji Abdu Dawakin Tofa was appointed in his place; In 1983, a few months to the Governorship election Alhaji Muhammad Abubakar Rimi resigned to enable him join the Nigerian Peoples Party (NPP) and contest election to the office of Governor under that party and his deputyAlhaji Abdu Dawakin Tofa was sworn in as the Governor. Election was conducted that same year signifying the end of the composite term to which Alhaji Abubakar Rimi was first elected; In 1981 Governor Shehu Mohammed Kangiwa died and his deputy Dr Garba Nadama was sworn in; in 1983 election was held; signifying the end of the composite term to which Shehu Kangiwa was elected. Also in 1980 Alh Abdulkadir Balarabe Musa was impeached as Governor of Kaduna State and his deputy sworn in. In 1983 governorship election was held signifying the end of the composite term to which Alhaji Balarabe Musa was elected. In 2002 DSP Alamieyeseigha of Bayelsa State was impeached and his deputy, now President Jonathan was sworn in as Governor. In 2007 President Goodluck Jonathan was nominated to run for election to the office of Governor of Bayelsa State but before the actual election he was nominated to the office of vice president. Election was yet held to signify the end of the composite term to which DSP Alamieyeseigha was elected. Upon the demise of President Umaru Yar’adua, Arch Mohammed Nanadi Sambo, who was then the Governor of Kaduna State, was appointed to replace Goodluck Jonathan as Vice-President. Elder Patrick Yakowa, the then Deputy Governor, was sworn in to replace him as Governor. In 2011 elections were held in Kaduna signifying the end of the compsosite term which Arch Namadi Sambo was first elected. The common feature in all these events is that fresh elections were held at the expiration of the terms for which Governors Abubakar Rimi, Abdulkadir Balarabe, Alh Shehu Kangiwa, DSP Alamieyeseigha, as well as President Yar’adua were variously elected. It was logical and lawful to do so because all and sundry understood and agreed that the terms which these erstwhile Governors or President vacated and were completed by those who took over from them were meant to be a continuous one and the same. It is significant that none of the persons who took over and completed the terms of their predecessors in office who had resigned or was impeached or died, including the incumbent President Jonathan, insisted that he must be allowed to complete his ‘own’ four years term beginning from the date of his assuming that office before fresh elections could be held! Governor Jonathan, as he then was, was the Governorship candidate for the Peoples Democratic Party in 2003 before his nomination to the office of Vice President under late President Yar’adua. Consequently, come May 28, 2015 President Jonathan would have exhausted the maximum time limit for any person to occupy the office of President of the Federal Republic of Nigeria. Let me quickly remind that the Constitution does not contemplate that any person should occupy or remain in the office of a Governor of a State or President of the Federal Republic of Nigeria a day longer than 8 years. This is the effect of the Supreme Court decision in the case of Marwa vs. Nyako (2012) 6 NWLR (Pt. 1296) P. 199 the facts of which are well known to you. I like to draw your attention especially to the salient views expressed by their lordship at the Supreme Court on the tenure of Governors under section 180 which is identical to section 135 dealing with the office of the President. At page 280-281 of the said case the court per Onnoghen, JSC said – “From the language used in section 180 of the 1999 Constitution, it is very clear that the Constitution intended that a Governor of a State shall have a tenure of four years from the date he took the oath of allegiance and of office and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a governor has a maximum tenure of eight (8) years under the 1999 Constitution. From the language of section 180(2) of the 1999 Constitution “the tenure of a governor shall be four years from the date …. ” when the person first elected under this constitution takes the oath of allegiance and of office which took place on 29th day of May 2007. It has been argued that the tenure of four years envisaged in the 1999 constitution is a single unbroken tenure but that submission loses sight of the glaring fact that the provisions of section 180(2) (supra) does not expect or envisage an indefinite occupier of the office of governor of a state that is why the tenure is very definite: four years” Speaking in the same vein Adekeye JSC, as page 362 said: “I must declare that in our interpretative capacity this Court does not require the amendment/alteration to section 180(2) of the Constitution to identify and declare the intention of the legislation as embodied in section 180(1) and 180(2) (a) & (b). Section 180(2) (2A) of the 1999 constitution has no effect on our stand on the constitutional poser….” In his contribution on this issue of tenure for elected officers, Dahiru Musdapher JSC, (as he then was) at page 294 also expressed thus: “If I may briefly explain, supposing like Dr. Chris Ngige a person elected as governor holds office for 3 years before the election was nullified, he contest the re-run election and wins it and resume office for another 2 years, when the electoral tribunals again nullified the election and again ordered a fresh election which he wins again, it would mean that the person would have spent 3, 2, plus another 4 years thus making it 9 or to take it a step further it may mean he could continue ad infinitum. Clearly this is not the situation the constitution has intended it has only created tenure of 4 years no more” To cap it all, Onnoghen JSC in the concluding part of the lead judgement of the apex court in this case reiterated at page 286 that: “The time fixed by the Constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states. In the instant case, to calculate the tenure of the 1st respondent in the appeals from the date of their second oaths of allegiance and of office while ignoring the period from 29th May, 2007 when they took their first oaths was to extend the four years tenure constitutionally granted them to occupy and act in that office which would be unconstitutional.” I earnestly believe that it was in your appreciation of this fact that, despite the absence of any consequential order by the Supreme Court in the case of Marwa supra after holding that the tenure of some Governors had expired, you as the Chief Law Officer of the Federation of Nigeria rose up to the occasion and gave a fiat to the Chief Judges of Adamawa, Bayelsa, Cross River, Kogi and Sokoto States in 2012 directing that the Speakers of their State Houses of Assembly be sworn in as acting Governors and for fresh governorship elections to be conducted in those States. Your timely intervention then had a most salutary and reassuring effect in those States and in Nigeria in general. The purpose of this letter is to cause you to closely and objectively look into the unfolding political scenario, particularly the declared intention of the Peoples Democratic Party to field President Goodluck Jonathan for an unprecedented and unconstitutional third term and, in liaison with statutory regulatory bodies and others, take a patriotic stand on same before political parties conclude the nomination of candidates who would contest at the forthcoming presidential election. Two reasons dictate that you do so now and with dispatch. Firstly, without at all intending to be patronizing, your timely intervention would afford the Peoples Democratic Party opportunity to field a qualified person as its candidate for the office of the President. Secondly, to avoid the enormous waste of fast dwindling national resources in conducting a presidential election with an unqualified person and the acrimony and tensions that results of such elections have been known to breed in Nigeria. Thirdly, your intervention would save the courts from the unwarranted trouble of having to be repeating itself on the same issues as were decided in the case of Marwa supra. Lest you forget, the Marwa’s case on which the Supreme Court gave interpretation of tenure was an appeal unusually pursued by INEC against the judgement of the Federal High Court and the Court of Appeal. No express consequential order was given by the Supreme Court as to the conduct of election but because the Supreme Court pronouncement became the Law with your good counsel, INEC almost immediately organised and conducted election in accordance with the Supreme Court judgement, in the four of the affected states except Kogi who had a Governor-elect and now one wonders why INEC should not give, at this juncture, clear notices of Elections as they did in 2011 by specifying states where elections will hold, and in view of the raging outcry about the eligibility of President Goodluck Jonathan to contest in 2015 within the context of the Marwa’s case and also what will be the position of Governorship elections in Kaduna and Adamawa States? By May 28th, 2015 Ramalan Yero will be completing his composite tenure in which Patrick Yakowa was first elected, so also Bala Ngalari who was a couple of weeks ago sworn in as Governor of Adamawa State after the impeachment of Murtala Nyako Therefore, let me quickly say that I appreciate that this step which I urge upon you, is a most odious one and sound politically suicidal because you were appointed to the office of Attorney General of the Federation by President Goodluck Jonathan and would quite naturally not want to give any impression that you are anything but absolutely loyal to Mr. President. However, you must constantly remind yourself or be reminded that you are more than just a Minister of the Federal Republic of Nigeria and that this is a duty compelled on you by the same Constitution which the same President had on several occasions sworn himself to uphold, protect, preserve and defend. It was Sir Wiston Churchill of Great Britain who said that “the optimist sees opportunity in every danger, the pessimist sees danger in every opportunity”. You do have the very rare opportunity of saving this country a lot of grief and rancour by the courage you bring to bear in the discharge of your duties and powers in the Nigeria of today! At this point in our journey as a nation of diverse, but united people the Attorney General of the Federation need to use his very privileged position as the ‘conscience of the Nigerian law’ to give timely and objective advices and directives, as the case may be, to the duo of President Goodluck Jonathan and his sponsor, the People Democratic Party of which you are an exalted member as well as the Independent National Electoral Commission (INEC) not to foist upon this great and promising country the ugly spectre of a third term. As recent as in the days of President Olusegun Obasanjo, Nigerians in their millions have stated clearly their aversion to third term or elongation of tenure by whatever name or means called for any political office holder. The same Nigerians are still in the wings waiting and watchful and would again vehemently oppose any attempt or intrigues at recycling President Goodluck Jonathan as President for an unconstitutional third term. From the consultations made by me, quite a large number of patriotic Nigerians share the views that I have expressed above although they may not have the character or opportunity to say so openly. Honourable Attorney General of the Federation, I repeat that it is more prudent to advise the Presidency which is presently under the firm grip and control of the Peoples Democratic Party not to field President Jonathan now than to defend him in a post election petition that is likely to follow if he is declared as duly returned as President for a third term. I pray to Almighty Allah to give you the grace to appreciate the issues raised here and the courage to advise appropriately in order to save Nigeria and Nigerians further confusion, complications and disorientation MOB EsQ
Posted on: Sat, 15 Nov 2014 00:29:27 +0000
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