Former President Goodluck Jonathan says he is “constitutionally” qualified to contest for president in 2023, adding that Section 137 sub-sections 1(b) and 3 of the 1999 Constitution of Nigeria as amended doesn’t have an effect on him.
President Muhammadu Buhari had on June 4, 2018, signed a 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.
The law also stops a deputy governor who completes the term of a governor from seeking a second term in office as a governor.
A President’s term can be cut short by reasons of death, resignation, or death to pave the way for the Vice President to complete the term of the departed President.
Following the death of then-President Umaru Yar’Adua on May 5, 2010, Jonathan as the then Vice President, took a new oath of office to complete Yar’Adua’s term as President.
He was also sworn in for another term on May 29, 2011, after he won the presidential poll of that year.
The first defendant has argued that since he acquired his right to contest and if successful, be sworn in as President after he lost his re-election bid in 2015 to the current President -President Muhammadu Buhari – it would be unethical to the spirit and intendment of the legislature to take away the right he acquired in 2015 on the basis of a law that came into effect in 2018.
Jonathan, in a counter-affidavit deposed by his assistant, Peletiri John Debetimi to a suit marked FHC/YNG/CS/86/2022, calling for his disqualification, said the law can’t be applied to his case.
Andy Solomon and Idibiye Abraham had approached a Federal High Court sitting in Yenagoa, Bayelsa State that the former President should be disqualified from contesting the 2023 presidential election.
They listed Jonathan, the All Progressives Congress (APC), and the Independent National Electoral Commission (INEC) as first, second, and third defendants respectively.
The duo argued that by virtue of the introduction of Section 137 sub-sections 1(b) and 3 of the 1999 Constitution of Nigeria as amended, the former president was no longer eligible to vie for the office of the president because he had taken an oath to that office on two previous occasions.
But responding, Jonathan said it would be unethical to the spirit and intendment of the legislature to take away the right he acquired in 2015 when he lost to President Buhari on the basis of a law that came into effect in 2018.
“Upon being served with the plaintiffs’ originating processes, the first defendant, through his counsel, E.K. Omare & Co. filed his counter-affidavit ad written address both of which are dated 19th May, 2022. The first defendant’s counter-affidavit is of 12 paragraphs and is deposed to by one Engr. Peletiri John Debetimi who described himself as an Assistant to the first defendant,” court documents seen by SaharaReporters read.
“One exhibit marked as Exhibit EKOI (i.e ‘Exhibit A) was annexed to the said counter-affidavit. Exhibit EKOI (i.e. Exhibit A) is a copy of the official gazette containing the 4th alteration to the constitution of the Federal Republic of Nigeria, 1999.
“In summary, the first defendant’s response, as stated in his counter-affidavit is that he has never been ‘elected’ into the office of the President of the Federal Republic of Nigeria on two previous occasions. The first defendant stated that the oath of office he took on the 6th of May, 2010 was taken upon his ‘election’ as President of the Federal Republic of Nigeria. The first defendant further asserted that he took the said oath to complete the aborted tenure of the late President Umaru Yar’Adua.
“The first defendant has argued that since he acquired his right to contest and if successful, be sworn in as President after he lost his re-election bid in 2015 to the current President -President Muhammadu Buhari – it would be unethical to the spirit and intendment of the legislature to take away the right he acquired in year 2015 on the basis of a law that came into effect in 2018.
“Now the position of the law on retroactive or retrospective application of laws is quite settled. Retroactive laws are which relate or cover matters or acts which occurred before its commencement date.”
Jonathan had recently rejected the presidential form of the ruling APC purchased for him, purportedly by a group of supporters from the northern region.
Speaking through his Media Adviser, Ikechukwu Eze, the former president said it was an insult for the group to have bought him the forms without his permission.
However, sources had told SaharaReporters that claims by the former President that he did not authorise the purchase of multi-million-naira presidential nomination and expression of interest forms were far from the truth.
SaharaReporters broke the story of how a cabal in the ruling APC had pushed for Jonathan to succeed Buhari, after being impressed by how the former President never openly criticised Buhari’s government despite its ineptitude and the insults the APC, as an opposition party, hurled at him (Jonathan) ahead of the 2015 presidential election.
The fact that Jonathan cannot spend more than one term in office, if they can manage to get him there, is also not lost on the cabal. However, SaharaReporters has also reported how Jonathan was later called a betrayer by the cabal after he failed to fulfil some of the conditions given to him, including convincing some PDP governors to defect to the APC.
Following speculations that Jonathan was preparing to defect to the ruling APC and seek the presidential ticket of the party, some Nigerians, including human rights lawyer Femi Falana (SAN), argued that his candidature will breach the constitution. Other Nigerians have also expressed different opinions on the issue.
Falana had based his position on Section 137 (3) of the Constitution, 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.”
Falana had said, “Some people have said that the amendment is not retrospective and therefore cannot apply to Dr Jonathan.
Assuming without conceding that the amendment is not retrospective it is submitted that under the current Constitution a President or Governor cannot spend more than two terms of eight years.
“In other words, the Constitution will not allow anyone to be in office for more than a cumulative period of 8 years. In Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199 at 387 the Supreme Court stated that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day longer.
“In the case of Governor Ladoja v INEC (2008)40 WRN 1 the Supreme Court rejected the prayer of Governor Ladoja for 11 months’ extension to cover the period he was kept out of office through illegal impeachment. The Supreme Court rejected the prayer on the ground that a Governor is entitled to spend a maximum period of eight years or less and not more than eight years.
“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 five 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 four 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 eight years.”