2015 Presidential Race: The Odds Against Jonathan
In spite of his endorsement by the PDP governors and the Board of Trustees of the PDP to run for the office of the President come 2015, President Jonathan still has many hurdles to cross, writes Ohia Israel
As it is, some Nigerians are of the view that there are some constitutional impediments withholding President Jonathan from contesting and as such he is not eligible to contest. For instance, a PDP chieftain from Adamawa, Dr. Umar Ardo, has taken the President to Court, as according to Ardo in his open letter to the National Chairman of the Party, “Any person of average intellect who read the 1999 constitution (as amended) along with four key judgments of the Supreme Court (INEC Vs Boni Haruna, Peter Obi Vs Chris Ngige, Ladoja Vs INEC and INEC Vs 5 PDP Governors) would easily conclude that President Jonathan’s eligibility to contest for another 4-year term in 2015 or at any other time thereafter under the present constitution is impeded.
This argument is premised on the fact that what constitutionally applies to the governor on the issue of eligibility or otherwise to contest elections is ipso facto applicable to the president.” According to Ardo “In those judgments, the apex court had established the relationship between the governor and his deputy on the issue of succession (Boni Haruna); determined the holding of office in a term at 4 years (Peter Obi); affirmed that a governor can stay less, but not more than 4 years in a term (Ladoja); and declared that tenure of the executive in office is a cumulative maximum period of 8 years and not a day longer (5 PDP governors).
By 29 May 2015, President Jonathan would be 5 years 23 days as President of the Federal Republic of Nigeria. If the president contests and wins the 2015 presidential elections or at any other time later, he will exceed the cumulative tenure of 8 years maximum period as interpreted by the Supreme Court. Therefore, such a contest will be unconstitutional.”
In his letter he said that the Argument is that the 1999 constitution (as amended) provides a term of 4 years and another term of 4 years and no more for the executive. The Supreme Court, in the case of INEC Vs the 5 PDP Governors (Idris, Nyako, Wamako, Sylva and Imoke), interpreted this provision as a maximum of 8 years cumulative tenure. The Court said it can be less for an individual, but certainly not more. With this interpretation, the Supreme Court removed 5 governors from office and necessitated for the amendment of sections 135 and 180 of the constitution. With 5 years 23 days to his credit as president, would President Jonathan’s contest for another term of 4 years not violate the provisions of the constitution as interpreted by the Apex Court? Since all presidential elections are for a 4-year term, we definitely need a clear judicial answer to this question.”
Ardo went further to say that; “In determining the issue of tenure in that case, the Supreme Court adopted two basic principles in its interpretation of the constitution in calculating the 4-year tenure system. Firstly, that a Governor, or a President, is elected for four years and eligible to re-election for another four years, and no more. On the basis of that the Supreme Court declared:
“In all a governor has a maximum tenure of eight (8) years under the 1999 constitution. … It is very clear from the relevant provisions that no person elected under the 1999 Constitution can remain in that office for a day longer than provided otherwise the intention of the framers of the constitution would be defeated”, and added pointedly that “The 1999 Constitution has no room for self–succession for a cumulative tenure exceeding eight years”.
Explicitly, this means that the cumulative 8 years tenure can be in bit and pieces, so to speak. It also means that in computing President Jonathan’s maximum of 8 years tenure, the 1 year 23 days he held as president between May 6, 2010 and May 29, 2011 will be counted. Other two points being made also are: first, all tenures of office of the executive emanate from the two 4-year terms; and second, it really does not matter how one constitutionally comes into office, what matters is one does not remain in that office a day beyond cumulative 8 years.
Secondly, the Supreme Court adopts the principle that so long as “the acts performed during the period in office remain valid and subsisting”, then the oath taken empowering the performing of those acts also remains valid and becomes the starting point in calculating the cumulative 8 years tenure of office. It is on record that all the acts President Jonathan performed between May 6, 2010 and May 29, 2011, including the Electoral Act that was used to re-elect him in 2011, are all valid and subsisting. Therefore, to calculate the tenure of office of President Jonathan from May 29, 2011 when he was sworn-in as duly elected President and ignore the period from May 6, 2010 when he was first sworn-in as President, is to close our eyes to what is real and concrete thereby extending for the President a period in office beyond the maximum 8 years tenure for the executive. If the President contests and wins another four-year term in 2015, he would have self-succeeded himself in office as president for a cumulative period of 9 years 23 days.
“It is also worthy to note that President Jonathan’s only claim of right to contest another term of 4 years is solely hinged on the disqualification clause in Section 137 sub-Section 1 (b) of the constitution that says “if he has been elected to the office of president at any two previous elections”. This is the clause upon which Justice Oniyangi of the FCT High Court (referred to below) mainly based the argument of his judgment. It is true Jonathan was not elected as president in any two previous elections, but this provision must also be looked at vis-à-vis the maximum tenure of 8 years prefix. The question therefore is if electing a person two times will give him a cumulative period in office beyond the 8 years bracket, will he still be eligible to contest such two terms of 4 years to that office? I think the answer, to my understanding of the logic and conclusion of the Supreme Court judgment, is in the negative.
“Besides, if Section 137 sub-Section 1 (b) is President Jonathan’s only ‘qualification’ to contest, then same will be applicable to Boni Haruna in Adamawa, Rotimi Amechie in Rivers and Ibrahim Gaidam in Yobe states under Section 182 sub-Section 1 (b). Technically speaking, like President Jonathan, these men were also not elected at any two previous elections as governors of their respective states. All of them, again like President Jonathan, assumed office through some constitutional means after election and commencement of terms. Does it mean that they are all eligible to contest another term as governors of their states? Can we say that Gov. Yero of Kaduna State by 2015 still has 8 more years to continue as governor? What of Ag. Gov. of Taraba; can he contest for two terms by 2015?
Likewise, in the case of A-g Gov. Fintiri of Adamawa State in which two successful elections can give him a maximum of only 4 years 7 months in office, can he contest again simply because he did not clock 8 years in office? In my understanding of the Supreme Court’s interpretation of the constitutional provisions of the 4-year term of 2 terms, I believe none of them is eligible to exceed 8 years whether or not they are elected in two previous elections or whether or not they clock 8 years in office, whichever is applicable.
“This then further begs the question – can President Jonathan, under the circumstance, still be eligible for another 4-year term in 2015 or at any other time afterward, seeing that, if he contests and wins, by the end of that term (in 2019) he would have self-succeeded himself in office as president for a cumulative period exceeding the maximum of 8 years interpreted by the Supreme Court? Undoubtedly, posing this question is not only germane but is unavoidable. Getting a judicial determination to this issue in the Supreme Court is basic if we are to hold and advance the cause of constitutional democracy and rule of law in Nigeria. To close our eyes to this and pretend that the coast is clear for the president to contest 2015 is playing the ostrich to an indispensable constitutional matter. This will be doing grave injury to our system. The solution to this matter lies with the Supreme Court.
“Though we may all have built our interests, emotions and sentiments for or against President Jonathan’s contest in 2015, but as things stand his contest is unlikely to enhance constitutionalism and judicial pronouncements as it will instead eliminate the principle of maximum tenure for the executive in Nigeria. It will also create the basis for perpetuating one political party in power by unendingly making an incumbent of one party a contestant, thereby setting a perilous precedence in the country’s democratization process.
Ardo said: “I am aware of the High Court judgment declaring that the President can contest again – that of Justice Oniyangi of the FCT High Court delivered on Friday 1st March, 2013. The matter was also brought before Justice Evelyn Anyadike of the Federal High Court Kaduna who knocked it out on technical ground. I read the submissions of both cases and their judgments against the interpretation and definition of tenure of office for the executive by the Supreme Court. I also read the argument proffered by Justice Oniyangi against the logic and conclusion of that Supreme Court Judgment, and I respectfully think the learned Judge has missed the point. For a highly celebrated case in which the Supreme Court went the extra mile to get legal opinions from luminaries as Amicus Curiae, the final unanimous decision of its 7 Justices cannot but be compelling. It would really be interesting to see how the FCT High Court’s judgment will fare on appeal.
Equally, to argue that President Jonathan’s tenure of office as president between May 6, 2010 and May 29, 2011 as “completing the tenure of late President Yar’adua”, in my opinion is futile, given that there is nowhere in the constitution where such provision is made. Besides, if a Vice President will be sworn-in as substantive President of the country, and in his new capacity appoints his Vice President, thus forming a distinct regime of his own, the talk of completing someone’s else’s term of office cannot even arise.”
(Adamawa State PDP Stakeholder)Ahead of the 2015 general elections, over 20 senior advocates of Nigeria (SANs) have concluded plans to drag President Goodluck Jonathan to court and seek relevant legal interpretation over his legibility to contest in the presidential race.
The action of the SANs is part of a security report to be presented to Jonathan this week, said a security source, who pleaded anonymity because he was not authorised to speak on the matter.
Meanwhile, aside Ardo other people have expressed their doubts over Jonathan’s eligibility, for instance, over 20 SANs are set to take the president to court. It had been reported that some powerful politicians and groups in the country have assembled a team of lawyers to challenge him whenever he declares his intention to take a shot at the nation’s No. 1 job.
The constitution provides that a president can only serve two terms, and opposition to Jonathan’s re-election ambition argue that he has served already. Some top politicians are waiting for the president to declare to enable them embark on the legal battle, as any move in that direction now would amount to a wild goose chase.
Consequently, Jonathan is reportedly having serious thoughts over his 2015 re-election ambition because of the constitutional obstacles in his way. Lawyers across the country have also started debating the issue.
The source, who spoke on condition of anonymity, said: “There are two constitutional provisions that are in question. The first is section 135 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, which states that no president can take the oath of office of the president of Nigeria more than twice.
“You will recall that on May 6, 2010, President Jonathan was sworn in by Justice Aloysius Katsina-Alu as the fifth president of Nigeria after the death of then president Umaru Musa Yar’Adua. Upon winning the presidential election in 2011, he was again sworn in and took the oath of office as the sixth president of the Federal Republic of Nigeria. This means he has been sworn in twice already, not as acting president but with full powers as commander-in-chief.”
The contentious Section 135 (1) & (2) of the Constitution provide thus:
“(1) Subject to the provisions of this Constitution, a person shall hold the office of President until – (a) his successor in office takes the oath of office; (b) he dies whilst holding such office; or (c) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of this Constitution. (2) Subject to the provisions of subsection (1) of this section, the President shall vacate his 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 case, the person last elected to that office under this Constitution took the Oath of Allegiance and the Oath of office but, for his death, has taken such oaths”.
The source also revealed that the president, who is getting ready to declare anytime soon, is consulting with stakeholders across the country and beyond on his eligibility in the 2015 presidential election.
As it is, the president has more hurdles to scale as he has been dragged to the Court of Appeal over his eligibility to stand for the election.
The Court of Appeal was also urged to quash the resolutions of the National Executive Committee (NEC), the Board of Trustees (BoT) and the PDP Governors’ Forum that endorsed President Jonathan as the sole presidential candidate of the party in the 2015 presidential election.
In an appeal number CA/A/574A/M2013 between Cyriacus Njoku as appellant and President Jonathan, PDP and the Independent National Electoral Commission (INEC) as respondents, Dr. Umar Ardo as an interested party applicant, is asking court to grant an appeal in suit number: FCT/HC/CV/2449/2012 between Cyriacus Njoku vs Goodluck Jonathan delivered on March 1, 2013.
Ardo, a former governorship aspirant from Adamawa State who claimed to be a presidential aspirant of the PDP from Adamawa State, urged the Court of Appeal to grant him leave to use the particulars of the Cyracus Njoku eligibility suit against Jonathan to challenge the president’s eligibility to contest the 2015 presidential election as a candidate of the PDP.
He further claimed that his fundamental human rights as a Nigerian and as a financial member of the PDP had been breached as a result of the endorsement of Jonathan by the PDP, NEC and other organs of the party.
In the appeal filed on September 23 and signed Dr. Amuda Kannike (SAN) and Doueyi Fiderikumo on behalf of Ardo, they claimed that the decision of the lower court in the FCT raises “grave points of constitutional law and jurisprudence that is the first of its kind in Nigeria.”
In the affidavit deposed by Ardo, he said: “That I am desirous of contesting the election to the office of President of the Federal Republic of Nigeria which is slated to hold on or before February 2015 and my desire is mainly built on my conviction that the president would not be eligible to contest the said election which would have cleared the way for a free and fair level playing ground contest for the party primaries.”
But he lamented that his presidential aspiration has been jeopardized because of the aspiration of President Jonathan who has been nominated as the sole candidate of the party, which he is a financial member.
Ardo and his lawyers also faulted the FCT High Court that dismissed Njoku’s suit against the eligibility of President Jonathan, stating that Justice M.N. Oniyangi erred in law when he struck out the suit on the grounds that “there was no cause of action and disclosing the cause of action.”
He further said the trial judge erred in law when he ruled that there was no locus standi to sue the respondents in the case as there was no election in sight as at 2013, explaining that with the endorsement of Jonathan by PDP that there are harms or damages done to his ambition as a presidential aspirant.
He further said the trial judge erred in law when he ruled that the president was on his first tenure of four years and therefore qualified to contest the presidential election in 2015.
According to Ardo in the affidavit, “President was sworn in as President of the Federal Republic of Nigeria and he took the oath of office as president to complete the unexpired tenure between May 29, 2007 and May 28, 2011.
“The votes used by President Jonathan to be sworn in as president of Nigeria came from the votes in favour of Jonathan as vice-president and the late President Umaru Musa Yar’Adua during the 2007 presidential election.”
He further averred that “section 135(2) of the Constitution does not state that the provision will not apply to a situation where a person assumes the position of President in the circumstance where a President dies while in office. “Section 137 (1) of the constitution applies to President Jonathan when he assumed the office of President upon the demise of Yar’Adua,” he said.
Consequently, Ardo urged the Court of Appeal to enter judgment in his favour by allowing his appeal against the judgment of the trial FCT Court in 2013 with “a declaration that President Jonathan is not entitled to contest the Office of the President of the Federal Republic of Nigeria in the 2015 presidential election.’”
Meanwhile, another suit seeking to stop Jonathan from running for the Office of the President in 2015 has been filed at the Federal High Court in Abuja. This time, a member of the president’s political party, the Peoples Democratic Party (PDP) and a member of the All Progressives Congress (APC) filed the suit.
A similar suit is also pending before the Federal High Court in Abuja. They among others sought to restrain the Independent National Electoral Commission (INEC) and the Attorney General of the Federation (AGF) from allowing President Jonathan to participate in the 2015 presidential election.
The suit marked: FHC/ABJ/CS/662/2014, with Adejumo Mansouru Ajagbe (a member of the PDP from Lagos State) and Olatoye Wahab (a member of the APC from Osun State) as plaintiffs, listed the Attorney-General of the Federation (AGF) and Minister of Justice and the Independent National Electoral Commission (INEC) and defendants.
The plaintiffs argued that by the 1999 Constitution (as amended), the president, having contested the presidential election twice, won and taken the oath of office and allegiance twice in respect that office, he could no longer present himself for election to that office the third time.
The case was filed last Friday by James Ocholi, A. J. Owonikoko, Okon Efut and Mahmu Magaji (all SANs) and has been assigned to Justice Ahmed Ramat Mohammed for hearing.
They relied on the provisions of sections 132(1), 135(2)(a) and (b), 137(1)(b), 142(1) and (2) and the Supreme Court’s decision in the case of Marwa and Nyako (2012) 6 NWLR (Part 1296) 199 at 306.
The plaintiffs argued that by the provision of the constitution, the president and vice-president, who were elected in the same election and sworn into office on the same date and at the same ceremony are, in law, taken to have been elected for one single term of four years notwithstanding the death or even impeachment of the president.
“That being so, the reference to “two previous elections” in Section 137(1)(b) of the Constitution includes two previous oath of allegiance and oath of office as President. It is therefore safe to conclude that a vice-president, who had taken the oath of allegiance and oath of office for two previous terms as president is, in law, deemed to have been elected into the office of president at two previous elections, thereby standing disqualified to contest another election into that office.”
The Court of Appeal sitting is Abuja has regularised the appeal against the eligibility of President Goodluck Jonathan to contest the February 2015 presidential election as the sole candidate of the Peoples Democratic Party (PDP).
Meanwhile, the appeal would now be heard on October 29, the eligibility suit in the Court of Appeal earlier slated for October 20, had some technical problems and therefore had to be stood down till further notice. But on Wednesday, the Justice Abdulkadir Jega-led Court of Appeal fixed October 29 as the date for a tentative hearing of the suit.
In a notice of appeal signed by the Senior Registrar of the Court of Appeal dated October 22, it said: “Take notice that the above mentioned motion has been listed for hearing before the Court of Appeal sitting at the three Arms Zone at the Central District Area Cadastral Zone on October 29 2014.”
Also speaking with journalists, the PDP presidential aspirant from Adamawa State, Dr. Umar Ardo, who took Jonathan to the Court of Appeal said: “With this case in court, now no one can do or say anything regarding the presidential nomination of the PDP until the matter before the court is finally determined.
“It means that President Jonathan can neither declare nor obtain Expression of Interest and nomination forms, nor any parties in the suit do same. PDP cannot also sell forms to any of us. Any act contrary to this will be subjudiced. This is the way of the rule of law.
“It is therefore in the best interest of myself, the president, the PDP and the country at large for this matter to be determined as quickly as possible so as to clear the way for everybody. And based on my personal observation on the processes of the case so far in the Appeal Court, I believe it will be determined soon; one way or the other,” he said.
Ardo had urged the Court of Appeal to quash the resolutions of the National Executive Committee (NEC) and Board of Trustees (BoT) and PDP Governors’ Forum that endorsed President Jonathan as the sole presidential candidate of PDP in the 2015 presidential election.
In an appeal with file number CA/A/574A/M2013 between Cyriacus Njoku as appellant/respondent and Dr. Goodluck Jonathan, PDP and Indepenent National Electoral Commission (INEC) and respondent, Ardo as an interested party applicant said: “The Office of President of the Federal Republic of Nigeria which is slated to hold on or before February 2015 and my desire is mainly built on my conviction that the president would not be eligible to contest the said election which would have cleared the way for a free and fair level-playing field contest for the party’s primary.”
He is therefore, seeking leave to be granted appeal in the suit No. FCT/HC/CV/2449/2012 between Cyriacus Njoku vs Goodluck Jonathan in the suit delivered on March 1, 2013.
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