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Is Jonathan constitutionally qualified to contest in 2015?

• Okutepa

• Okutepa

The Peoples Democratic Party, PDP has been in the news for wrong reasons since last week when its controversial convention ended in widening differences among its members. At the root of this disagreement is the alleged ambition of President Goodluck Jonathan and his eligibility to contest the 2015 Presidential election. Citing constitutional provisions, Jibrin S. Okutepa, an Abuja-based Senior Advocate of Nigeria is of the view that Mr. President is not qualified.      

There is no doubt that  by the provision of the 1999 constitution as amended, Nigeria government can only spend maximum of eight years in office. That is why section 137 (1) (b) of the 1999 constitution as amended provides that a person elected to the office of president at any time for two previous elections shall not be qualified for subsequent election as president of Nigeria

There have been debates and arguments that President Goodluck Ebele Jonathan, is or is not qualified to seek reelection in 2015. Understandingly some people from the South South zone of Nigeria, where our president comes from have been at the forefront of the agitation that the president must run in 2015. They argued forcefully that their son must be allowed to do the two terms of eight years, perhaps like President Obasanjo. Others have argued that the president is not qualified to run in 2015on so many variable principals among which is the constitution. Because I came from the minority like Mr. President I would have loved to support arguments that Mr. President be allowed to run or that Mr. President should run election in 2015, if God spares him as I pray he does.

But can President Jonathan run in 2015 presidential elections. My humble view is that he cannot and he will be constitutionally barred, unless of course, the 1999 constitution is further amended to accommodate that ambition if he has the ambition. There is no doubt that  by the provision of the 1999 constitution as amended, Nigeria government can only spend maximum of eight years in office. That is why section 137 (1) (b) of the 1999 constitution as amended provides that a person elected to the office of president at any time for two previous elections shall not be qualified for subsequent election as president of Nigeria.

There is no dispute that in 2007, President Jonathan was elected as vice president of the federal republic of Nigeria on the joint ticket with late President Umaru Musa Ya, Adua. Upon the death of President Umaru Musa Ya, Adua president Goodluck Ebele Jonathan was sworn in as president. my humble view is that the election of 2007 was the first election of Jonathan, becauseeven though elected as vice president, he was elected the president in the absence of the President, he become the president on the basis of the election that brought him and the late president to the office. see S.146(1) of the constitution. That the president Jonathan contested the election in 2007 and worn into the office of vice president and who was in the same shoes with the president is not in dispute. See section 142(1) of the 1999 constitution as amended. It is clear from the provision of section 142(!) and (2) of the said constitution that no person can be duly nominated to the post of the president unless he nominated a person who is qualified to be president like him. The implication is clear. A person contesting the office of vice president is by implication contesting the office of the president. He automatically becomes the presidents if any of the factors sets out in the constitution occurs. This point was underscored by the supreme court in PDP vs INEC (1999) 7SCNJ 297. The fact of that case was that Alhaji Atiku Abubakar stood election to the office of the government of Adamawa state. He nominated Mr. Bonnie Haruna as his running mate. They won the election as the governor and deputy governor respectively. Before they could be sworn in, Alhaji Atiku Abubakar becomes vice president candidate to General Obasanjo. INEC held the views since they were not sworn in the deputy governor elect could not been sworn in as governor of Adamawa state. The Supreme Court held otherwise and Mr. Bonnie Haruna was subsequently sworn in as governor of Adamawa state. Section 137 (1) (b) of the constitution is impair material with S.182 (1) (b) of the same constitution interpreted by the supreme court in Marwa vs Nyako & ors, (2012) 6NWLR (pt.1296) 200 at 310-311, judgment/ decision in consolidated appeals delivered on the 27thJanuary 2012 where the supreme court held that;

A person first elected as governor of a state shall vacate his office at the expiration of a period of four years commencing from the date when he took the oath of allegiance and oath of term of four years giving him a maximum two tenure of eight years”

In the same case the Supreme Court held at 286 that: time fixed by the constitution for doing anything cannot be extended. It is immutable fixed like the rock of Gilbratar. It cannot be extended, elongated, expanded or stretched beyond what it states”

There is doubt that President Jonathan spent two years in office as president following his election in 2007 as vice president cum the president of Nigeria as a result of the death of the then president. He was also elected president in 2011 and sworn in. Mr. President thus been elected to the office of president for two previous election and has taken two oaths of office of allegiance as president of Nigeria. The intention of the makers of our constitution is that we should not have any person however eminently qualified to serve in the office of president or governor for more than two terms of eight years. The Supreme Court spoke so in Marwa vs Nyako supra. The question then is if Mr. president makes himself available for the 2015 elections and he wins and there is no doubt he will using power of incumbency and Nigeria factors in winning election, will he step down after two years. If not he would have spent 10 years in office under the 1999 constitution contrary to the provision that provides for 8years maximum. The argument that Mr. President is doing well is beside the point. The constitution is the grundnorm. Any ambition that will violate Nigerian constitution must be discouraged by all. Those who speak in favor of Mr. President running are no doubt doing so because our constitution has given every one the freedom of expression, but in the exercise of that freedom we must do so within the parameter of constitutionality. To argue that the two years spend by Mr. president is not his term but the tenure is late President Umaru Musa Ya,Adua is an  argument that the files in the face of logic and constitution. There is the principle of the constitutional construction sought and it is this that primary purpose of constitutional interpretation is to find out the purpose for which the farmers of the constitution sought to achieve by the provisions in the constitution is the one Nigerian however eminent qualified should be in the office of the president or governor for more than 8years maximum. The farmers also know that the president or governor may die and can die in office and the vice president and deputy governor as the case may be has to take over. I hold the view that if the draftsmen of our constitution had intended that the reminder of the tenure of 8years when they win the elections on their own, the constitution would have said so. In other words it is my submission that in the circumstances of this case, there is no amount of political gymnastics that can make it constitutional for president Jonathan to run for 2015, even if he has performed creditably well, which is outside the purview of the discourse. Dahiru Musdapher JSD as he then was summed it up beautifully in this way when he was contributing in judgment on the purpose of 8years tenure in our constitution. This is what the learned jurist said: if I may briefly explain supposing like Dr. Chris Ngige a person elected as governor holds office for 3years before the elections is nullified, he contested the rerun election and wins it and resume office for another two years, when the electoral tribunal again nullified the election and again order a fresh election which he wins again, it would mean that the person would have spent 3,2 plus and other 4years thus making it 9 or take it a steps 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 and no more. See Marwa vs Nyako supra at 294

My view therefore is that if President Jonathan seeks re- election in 2015, and he wins as he is likely to, he would have been elected into that office more than two terms for four years. I humbly submit that the president Jonathan is constitutionally barred from contesting the 2015 election unless the constitution is deliberately amended to accommodate him.