The Presidential and other National Elections will come up very early next year. Before this happens however, we know there will be the usual political bloodletting, a regular but complex political and constitutional/judicial ritual we unfailingly subject this country to. Some call it “heating up the system”.
The drama will involve but not limited to: Allegations and counter allegations, political libel, thuggery, brigandage, some homicidal actions, tons of money spent and wasted on failing or non existent political ambitions, dispensation of unbelievable largesse to stray and lame political horses, the triumph of political hope over experience or reality, greed, avarice, “pull him down” syndrome, plain stupidity, crass ignorance, reckless political gamble among others.
What I however wish to examine in this write up has nothing to do with any suggestion that political players should cease to do their thing as they did in the past. They will. There is nothing I, you or indeed any person can do about that.
My interest is to consider the question relating to whether President Jonathan is qualified to contest the 2015 Presidential Elections under the 1999 Constitution. There is a trending view today that President Jonathan may be barred from contesting again in 2015 by the combined effect of Sections 135(2) (b) and 137(1) (b) of the 1999 Constitution. And there are some, indeed not a few, political opponents of the President, who will be silently or overtly happy to see him given a TKO on a constitutional ground. Or for that matter, on any ground!
We all recall that since June 2011 after assuming office as President, consequent upon his election, this discussion had been on as to whether President Jonathan could contest in 2015. Of course, the conversation was also partially propelled by and symbiotically related to the political allegation that the President had undertaken not to contest the 2015 presidential election, for whatever reasons.
Before I attempt any deductive interpretation and constructive explanation of the constitutional provisions referred to above, let me say a few words on the issue of waiver of a constitutional right. Can President Jonathan validly waive his constitutional right?
Under established constitutional principles, a constitutional right cannot be waived. ONU JSC in Adisa v. Oyinwola (2000) said, “In addition, a right conferred by the Constitution cannot be taken away by any other statutory provision”
The President and his friends have disowned any alleged prior undertaking not to contest the 2015 elections. In law however, he is not bound to keep to and cannot be compelled on legal basis to keep faith with any promise to waive his constitutional rights. This is more so where he has, as he actually does have, a constitutional right to contest the 2015 election. The Supreme Court settled this principle in the cases of Rotimi v Mc Gregor and Tinubu v IMB Securities, to name a few.
Now, what does Sections 135(2)(b) and 137(1)(b) of the 1999 Constitution say? I will start with Section 135(2) which provides: “Subject to the provision of subjection (1) of this section, 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
These provisions are so clear and would hardly appear to require any inspired forensic dissection. The words are plain and unambiguous. All we need to do is give effect to the words used as the Supreme Court has stated in numerous locus classicii on constitutional interpretation.
I think the starting point will be to restate the general principles governing the interpretation of the Constitution. A Constitution must be interpreted liberally. The interpretation that would serve the interest of the Constitution and best carry out its object and purpose should be preferred. Its relevant provisions must be read together, as a whole, not disjointedly. Where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with the other provisions of the Constitution. (Ifezue v. Mbadugba (1984)
In the case of Adesanya v. The President, Fatayi Williams CJN stated “When interpreting the provisions of our (1979) Constitution not only should the courts look at the Constitution as a whole, they should also construe its provisions in such a way as to justify the hopes and aspirations of those who have made the strenuous effort to provide us with ‘a Constitution’ for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.”
The Supreme Court in the case of A.G. Bendel State v. A-G.Federation (1982), laid down some guidelines thus: (a) effect should be given to every word; (b) the language of the Constitution’ where clear and unambiguous must be given its plain evidence meaning; (c) a constitutional provision should not be construed so as to defeat its evident purpose”..
So applying these principles, we can conclude that:
1. Where a person is elected President (e.g Yar’adua), he will vacate after four years from the date of taking oaths of office;
2. Where a Person becomes President (Jonathan) as a result of the death of a person last elected to that office (Yar’adua), he shall leave office when the four years from the date the last elected President (Yar’adua) took the oaths of office.
It follows then, that, even though, President Jonathan was sworn in as President in 2010 by the operation of the Constitution (sections 146(1), it was mainly to conclude President Yar ‘Adua’s tenure. That tenure expired on 29th May 2011, when, if Yar’Adua were alive, he would have had to vacate office. Unless of course if he had secured a second term mandate.
The kernel of Section 135(2) relate to the date of taking oath of office of any president, alive or dead. This provision reiterates the four year tenure of an elected president, and no more. A presidency expires after every four years, irrespective of who started or concluded the tenure. Thus Section 135(2) of the 1999 Constitution relates to the tenure of an elected president or the vice- president who may conclude the tenure where the elected president could not conclude his tenure. That is the purpose of Section135 (2).
The other constitutional issue is the meaning that may be given to Section 137(1) (b) which provides: “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”.
Applying the principle of interpretation elucidated above, again there is nothing arcane or recondite about the words used. The purpose of Section 137(1) (b) is to stop any person from being elected into the office of the President more than twice. A person is no longer qualified to contest for the office of President if he had been elected to that office on any two previous elections. The main issue is not about taking Oaths of office but about being elected. So to be qualified to contest, a person (Jonathan) must not have been elected on any two previous elections.
It is not disputed that President Jonathan had been sworn in twice, but elected only once, as President of Nigeria under the 1999 Constitution. These are in March 2010, on the demise of late lamented President Yar’Adua and in May 2011 on winning the 2011 Presidential election.
It is common public knowledge and a matter of political and historical record that, from 1999 till 2011, Presidential candidates of PDP that won their elections had been Obasanjo 1999, Obasanjo 2003, Yar’adua 2007, and Jonathan 2011.
In Nigeria today, only one person is not qualified to contest by virtue of section 137(1) (b). That person is President Obasanjo. He had contested presidential elections twice and he had been twice elected. No other person in Nigeria is caught by that section of the 1999 constitution. Maybe we should add President Shagari for fullness or completeness
The few cases, handled by our Supreme Court in the past, relate to the matters of certain State Governors who had been elected twice even though not solely under the 1999 Constitution. They were called the “third term governors”. The Supreme Court rightly barred them. They had been elected twice as governors in the past whether they concluded the four year tenure or not.
Nowhere in the 1999 Constitution is it stated that a person cannot spend less or cumulatively, more than eight years as a president. What is not allowed by the Constitution is to be elected more than twice into that office. If President Jonathan wins in 2015, he will no longer be qualified to contest for the office of President of Nigeria (in 2019) because he would have been elected twice in the past to that office. He must then make way for others.
The court must never be invited to and must vigorously resist the call to construe any of the provisions of the Constitution so as to defeat the obvious ends of the Constitution (Mohammed v. Olawunmi (1990). Also in the case of Tinubu v. I. M. B. Securities (2001) Karibi-Whyte JSC said:- “It has never been allowable and the sacred obligation of the courts is not to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve.
In the meantime, it may be a good thing for the various Nigerian political parties that have the political courage or wherewithal to present presidential candidates in 2015 to get on with it: get experienced, visionary and patriotic candidates, develop strong developmental road map for nation building and make a strong showing at the election.
Let us spend more time on agenda-setting: development of critical infrastructure in power, rail, road and water transportation, health especially public/preventive health, education, mainstreaming ICT into educational delivery and management, agriculture for poverty/hunger reduction and SMES/agro allied enterprises development; sports and sports tourism development, cultural industries and convention tourism, building national pride and self esteem, total restructuring of our national defence and internal security architecture. We need continuous civil service reforms at all levels; we need to exit the “silos syndrome”. We need real time monitoring and evaluation government policy making and actual plans implementation.
A lot needs to be done. Dissipating political and economic energy on issues that may add very little to solving urgent national socio-political and economic challenges will detract from our responsibility to as well as the yearnings of our nation.
Prince Kayode is a Public Law expert, a former Ministers of Culture, Labour and Defence and also a former Federal Attorney-General.
