opinionBy Abdurrahman Mu'azu
There is a lot of misconception, even among lawyers, not to talk of laymen, regarding the position of President Goodluck Jonathan's tenure vis-à-vis the 2015 election.
While many people are putting pressure on the president to go ahead and contest in presidential election, others are urging him to renounce his intention to contest, in the interest of peace and stability of the country and to concentrate in providing good governance.
A new dimension was however added to the issue when on New Year's Eve 2013, the president's supporters decided not only to fly a kite by flooding Abuja, Nigeria's capital city with Jonathan's 2015 presidential election campaign posters, but went a step further to ensure that some of the posters bore the inscription "No Vacancy". This may indicate that the president is still toying with the idea of contesting the 2015 presidential election.
From all indications, all those calling on Jonathan to contest the 2015 presidential election, and others who are trying to dissuade him from pursuing his ambition, appear to be unaware that as per the provisions of 1999 constitution of the Federal Republic of Nigeria (as amended), the president is serving his second and final term in office and therefore ineligible to contest the 2015 presidential election. The latest judicial authority on the issue of tenure of office of president and governors is the Supreme Court's decision in the unreported case of Brigadier-General Mohamed Buba Marwa Vs Admiral Murtala Nyako and others on tenure elongation delivered on 27th January, 2012. In its judgment, the Supreme Court, while giving the proper interpretation of the tenure of governor said inter alia:-
"From the language used in section 180 of the 1999 constitution, it is very clear that the constitution intended that a governor of a state shall have a tenure of four years from the date he took Oaths of Allegiance and of Office and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a governor has a maximum tenure of eight (8) years under the 1999 constitution".
Section 180 is similar to Section 135 dealing with the tenure of the president and therefore the interpretation applies to the president as well.
Justice Walter Samuel Nkanu Onnoghen, who delivered the lead judgment, went further to state as follows:-
"I have also found and held that from the totality of the relevant provisions of the constitution including section 180(1) & (3) and Section 182 (1) (b), 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 he took the Oath of Allegiance and of Office though he could be re-elected for another term of four years giving him a maximum two tenures of eight years. 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 as provided otherwise the intention of the framers of the constitution would be defeated".
From the forgoing, it is clear that to allow the president to contest the presidential election in 2015 and be sworn-in for the third time will not only be against the spirit of the constitution but will certainly be a direct violation thereof because it will mean that he will spend a total of nine years instead of eight years allowed by law since by 2015 he would have been in office for five years. To add another four years is to exceed the maximum limit permitted by the constitution.
Those calling on President Jonathan to contest the 2015 election argue that he was not the one who was "first elected", but late President Umaru Musa Yar'adua, forgetting that it was a joint ticket which is why the Oaths of Allegiance and that of Office is first administered on the Vice president or Deputy Governor before administering same on the President or Governor to avoid creating a vacuum in the event of any eventuality. That is also why when President Umaru Musa Yar'adua died on 5th May, 2010, he became the natural successor and was automatically sworn-in the following day without resorting to the novel idea of invoking the "doctrine of necessity" by the National Assembly to even make him Acting President when the Federal Executive Council refused to rise up to the occasion and declare the President incapacitated to pave the way for the current president who was then his Vice to assume the position of substantive president.
Former Governor Boni Haruna of Adamawa State is a case in point. He was sworn-in and served the term of former Vice President Atiku Abubakar who was the person first elected as governor of Adamawa State after the latter was nominated as Vice Presidential candidate by former President Olusegun Obasanjo and eventually elected as Vice President. Boni Haruna was sworn-in as substantive governor because it was a joint ticket. The issue was a subject of litigation which ended at the Supreme Court and was decided in favour of Boni Haruna.
The decision in Boni Haruna's case is consistent with the provision of Section 187 of the constitution which is similar to section 142 dealing with the establishment of the office of the Vice President which stipulates as follows: -
"...a candidate for the office of Governor of a state shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor..."
This scenario also applies in the case of President Jonathan, who was sworn-in as the substantive President (not acting) for one year twenty-two days in their first term in office after the demise of President Yar'adua. He formed his own cabinet and run his own and not Ya'adua's Government thereby completing their joint mandate first, as Vice President and then he finished as President with Mohammed Namadi Sambo as his Vice President. It was at this point that the umbilical cord which joined Jonathan and Yar'adua was cut thereby separating the administration of the former from that of the latter. It therefore means that it does not matter how many months or years a President or Governor spent in completing a term of office or how much time he lost in his fixed term of four (4) years provided that the period he served is within the four-year term certain as specified by the constitution. This is because the Supreme Court with a note of finality said: -
"It is settled law that the time fixed by the constitution for the doing of anything cannot be extended. It is immutable, fixed like the rock of Gibraltar. It cannot be extended, elongated, expanded or stretched beyond what it states"
If the pronouncements of the Supreme Court are any guide, it is clear that President Jonathan is in his second and final term as President of Nigeria and is therefore not eligible to contest the presidential election in 2015. Therefore, any eligible Nigerian who aspires to be the next tenant in Aso rock Villa effective from 29th May, 2015 particularly members of the ruling Peoples Democratic Party (PDP) should disregard the no vacancy notice and, accordingly, proceed to seek the nomination of their respective parties to contest the 2015 presidential election. Having done that, they should feel free to approach the landlords and the landladies i.e. the electorates for their approval to occupy the State House for a renewable period of four years subject to the approval of the electorates.
In fact, it was on the 29th May, 2011, when President Jonathan was sworn-in as the President of the Federal Republic of Nigeria for the second and final term, that he was effectively put on notice on the duration of his tenancy in Aso Rock Villa which will expire on 28th May, 2015 without an option of renewal because it is a definite tenancy in accordance with the provisions of the constitution which, in this case, constitute the terms and conditions of the Tenancy Agreement he entered into with Nigerians which he swore to uphold.
In case the president and his supporters don't know, they should be made to understand that there is a world of difference between jettisoning of a party's zoning arrangement and flagrant violation of a country's constitution.
Mu'azu, a legal practitioner, wrote from Baissa Street, Old G.R.A, Jimeta - Yola.