Amid rumours that President Goodluck Jonathan may seek a second term in office in 2015, one question that needs to be asked is: Is he eligible to contest the election at all? This is what a Federal High Court in Abuja will determine tomorrow. In this report, Davidson Iriekpen reviews the arguments, both for and against
Barring any last minute adjournment, a Federal High Court in Abuja will, in the next 24 hours, decide whether President Goodluck Jonathan can seek re-election in the 2015 presidential election. The presiding judge, Justice Mudashiru Oniyangi, had in July fixed the date for judgment after listening to the arguments of the counsels.
As 2015 is fast approaching, the issue has been a subject of controversy. It actually started immediately Jonathan was elected President and sworn in on May 29, 2011. Jonathan was elected Vice-President and sworn in on May 29, 2007 alongside his boss, the late President Umaru Musa Yar'Adua. The tenure was for a term of four years subject to another term of four years.
Yar'Adua, whose tenure was to end in 2011, was President until on May 5, 2010 when he passed on. This, constitutionally, brought Jonathan on board as president and to complete Yar'Adua's remaining 12 months of the four years tenure. On the completion of that term, Jonathan contested and won the 2011 presidential election and was sworn in on May 29, 2011.
Soon after he was sworn in, the controversy of whether he is eligible to contest the 2015 came up. This had compelled a member of the Peoples Democratic Party (PDP), Mr. Cyriacus Njoku, to approach the court with a suit seeking to stop Jonathan from seeking re-election in 2015.
Njoku is asking the court to declare that Jonathan's tenure of office began on May 6, 2010 when his first term began. He also urged the court to hold that Jonathan's two terms should end on May 29, 2015 having taken his second oath of office on May 29, 2011.
Consequently, he urged the court to determine whether in the light of the express provisions of section 137(1) (b) of the 1999 Constitution, as amended, president Jonathan can be administered the presidential oath of office for the third time.
The plaintiff also wants the court to hold that by virtue of Section 136 (1) (b) of the Constitution, no person (including Jonathan) should take the oath of allegiance and the oath of office prescribed in the Seventh Schedule to this Constitution more than twice. He also wanted an order of injunction restraining Jonathan from further contesting or attempting to vie for President after May 29, 2015 when his tenure should by the constitution, end.
He also asked the court to determine "whether Section 135(2) of the Constitution, which specifies a period of four years in office for the President, is only available or applicable to a person elected on the basis of an actual election or includes one in which a person assumes the position of President by operation of law, as in the case of Jonathan.
"Whether Section 137(1) (b) of the Constitution, which provides that a person shall not be qualified for election to the office of President, if he has been elected to such office at any two previous elections, applies to the first defendant, who first took the oath of office as substantive President on May 6, 2010 and took a second oath as President on May 29, 2011."
That aside, Njoku sought a declaration that "the President's tenure of office began on May 6, 2010 when his first term began and his two terms shall end on May 29, 2015 after taking his second oath of office on May 29, 2011; and by virtue of Section 136 (1) (b) of the Constitution, no person (including the first defendant) shall take the oath of allegiance and the oath of office prescribed to in the Seventh Schedule to this Constitution more than twice.
He beseeched the court for an order of injunction restraining the PDP from further sponsoring or attempting to sponsor the first defendant as candidate for election to the office of the President in the 2015; and an order directing the third defendant, INEC, from accepting the name of the first defendant where sponsored by his party again to run for president in the 2015 presidential election to be supervised and conducted by the third defendant (INEC). Others joined in the suit are the PDP and INEC.
However, Jonathan through his counsel, Kelechi Normeh, in a preliminary objection, asked the court to discountenance the suit. The lawyer who was holding brief of Ade Okeaya-Inneh (SAN) described the suit as frivolous and vexatious and meant to make the court to labour in futility because the suit was purely an academic exercise.
Normeh also urged the court to hold that the suit did not disclose any reasonable cause of action. In his submissions, he argued that Jonathan was currently doing his first term of four years in office as the President of Nigeria as provided by the 1999 Constitution as amended.
"President Jonathan's status and position is formidably backed by the1999 Constitution. The constitution of Nigeria only makes provisions for a president to contest for not more than two terms of four years each. The constitution recognises the President's tenure of office to be four years."
He said Jonathan had not indicated or announced anywhere whether in words or in writing that he would contest for the presidential election in 2015. Even at that, the counsel argued: "The late President Umaru Musa Yar'Adua contested and won the presidential elections conducted in 2007 for a term of four years. He was the President from May 29, 2007 until sometime in May 2010 when he passed on. Yar'Adua's four years was to end in 2011."
He further told the court that on May 6, 2010, Jonathan was sworn in as the president after the demise of Yar'Adua thereby completing Yar'Adua's 12 months of the four year tenure and that it was the first time Jonathan is coming to power as the president of Nigeria through a conducted election wherein he was voted as the presidential candidate of his party, the PDP.
Also in a preliminary objection, counsel to the PDP, Christopher Paul, urged the court to dismiss Njoku's suit. He said Njoku lacks the locus standi to institute the suit. The counsel argued that even if Jonathan had made up his mind to contest, his aspiration in 2015 would not jeopardise any other Nigerian's interest.
Paul explained that contrary to the depositions by the plaintiff in paragraphs 4, 7 and 8 of the said affidavit, the first defendant (Jonathan) would only be completing his first term of office as President of the Federal Republic of Nigeria in May 2015.
"The first defendant has contested election as President of the Federal Republic of Nigeria only once, and that is at the April 2011 general election. Even if the first defendant vies for President in 2015, the plaintiff and other eligible Nigerians would not be denied the opportunity of taking a shot at the presidency in 2015.
But counsel to Njoku, Osuagwu Ugochukwu, raised two questions for determination by the court. These are: "Whether Section 135(2) of the Constitution which specifies a period of four years in office for the President is only available or applicable to a person elected on the basis of an actual election. Or does it include one in which a person assumes the position of President by operation of law as in the case of Jonathan."
He further contended that whether Section 137(1) (b) of the 1999 Constitution which provides that a person shall not be qualified for election to the office of President if he has been elected to such office at any two previous elections applies to Jonathan "because he first took an oath of office as substantive President on May 6, 2010 and took a second oath of office as President on May 29, 2011."
He therefore prayed the court not to dismiss the suit, but hear it on its merit. He wants the court to give an order of injunction restraining Jonathan from further contesting or attempting to vie for President after May 29, 2015, when his tenure shall by the Nigerian Constitution end.
Remarkably, this is the second time Njoku is dragging President Jonathan to court with a view to thwarting his political ambitions. He had in August 2010, attempted to stop the PDP from allowing Jonathan to participate in the PDP presidential primaries of January 2011.
Njoku, from Zuba Ward in Gwagwalada Area Council of Abuja and with PDP registration number 1622735, urged the court to ask the PDP to respect its principle on zoning formula in line with Article 7.2(c) of the party's constitution.
He insisted that the declaration of Jonathan (third defendant) to contest the presidency on the PDP platform was contrary to Article7.2 (c) of the 2009 Constitution of the PDP, as amended.
But the Chief Judge of the Federal Capital Territory (FCT) High Court, Justice Lawan Gummi, dismissed the zoning suit and thus paved the way for Jonathan to emerge PDP's flag-bearer in the last general election.
Though, the Yar'Adua-Jonathan change of guard was the first time in the history of the country at the federal level, it is certainly not the first time it is happening at the state level. When the Governor of Yobe State, Alhaji Mamman Ali who was elected in 2007 died after two years in office, his then deputy, Alhaji Ibrahim Geidam served out his tenure before contesting afresh in 2011. Today, he is strongly looking forward to contesting again in 2015.
His argument is that, he merely served out the tenure of his late boss.
But outside the courtroom, analysts have divergent views on the issue. While a lot of them feel Jonathan does not have the constitutional right to seek another mandate from the Nigerian electorate come 2015, others feel otherwise.
For instance, a constitutional lawyer, Mr. Sabastine Hon (SAN), is of the view that President Jonathan is not constitutionally barred from contesting the 2015 presidential election. But others feel otherwise, toeing Njoku's argument that he had been sworn in twice and as such does not need to come back again, constitutionally.
Hon submitted that the constitution does not bar him from contesting if he so wishes. He argued that because the President took the first oath of office as a mid-term or as inter mid-term successor to his late boss, Yar Adua, he is eligible to contest the election if he so chooses.
The constitutional lawyer explained that Jonathan did not set out to become the president at the initial stage, stressing that he was only elected as the deputy to the late Yar'Adua, adding that as vice-president, the constitution requires him to step into the position of President. It was still the same mandate.
"Can we say in all sincerity that the first two years that he occupied that seat he was the man in driving seat? He was not; he was only deputizing for the man in the driving seat. If the president does not assign a deputy responsibility to the vice-president, he will be there redundant," he said.
But former Military President, General Ibrahim Badamosi Babangida has said the rash of activities around Jonathan's suspected second term bid were unnecessary and diversionary. Babangida in an interview with THISDAY at the weekend said speculations on whether or not the President would seek re-election were unnecessary at this time in the life of the nation.
Babangida who did not delve into the constitutional slant of the argument said: "You can't make a view or you can't make opinion on something Jonathan didn't say anything about. So it will be unfair. I think we should allow him to run the course; he has a job to do now. He has just been elected. I think it's not up to one year or one year plus. So, he has got three more years. What he did or what he does will recommend him to the public and to the Nigerians."
Certainly, except the unexpected happens, the court is sure to put paid to this debate tomorrow when it would decide whether or not the President, based on constitutional and legal inferences, is eligible to seek re-election in the 2015 general election.