24 January 2013

Nigeria: Jonathan Can Contest in 2015, PDP Insists

The Peoples Democratic Party (PDP) has told a Federal High Court in Abuja that President Goodluck Jonathan has an inalienable right to contest the 2015 presidential election, saying that the party cannot afford to stay aloof when his eligibility to contest is being challenged.

The PDP stated this yesterday in its joinder application in a suit by a Port Harcourt-based lawyer and PDP card carrying member, Henry Amadi. The plaintiff is asking the court to stop Jonathan from participating as a candidate for the 2015 presidential election after his current tenure of office.

In the suit before Justice Adamu Bello Amadi, the plaintiff, who named Jonathan and the Independent National Electoral Commission (INEC) as co-defendants to the suit, also wants the court to hold that Jonathan is ineligible to contest the 2015 poll on the grounds that he would be spending more than the maximum period of two terms of four years as envisaged by the 1999 Constitution (as amended).

But the PDP, in its joinder application, wants the court to join it as a necessary party on the grounds that the outcome of the suit will affect the party.

The joinder application, which was filed by the PDP national legal adviser, Mr Victor Kwon, also wants the court to make consequential order directing the plaintiff to amend his originating processes to reflect the PDP as a defendant and cause same to be served on the party.

In a four-paragraph affidavit in support of the application and a written address, Kwon argued that, from the reliefs sought by the plaintiff, the PDP's right to sponsor Jonathan for 2015 presidential elections was being challenged.

"This action," the party said, "cannot effectually and completely be determined without joining the applicant herein. By the very tenor of the reliefs sought by the plaintiff, this suit questions the right of the applicant to sponsor one of its members (Jonathan) for the 2015 presidential elections. The applicant herein seeks to protect its interest in the present action by this application.

"Having been sponsored by the applicant (PDP) for the 2011 election - and Jonathan being a member of the PDP who is capable of been sponsored for the 2015 presidential election, the PDP will directly be affected by the outcome of the decision of this court one way or the other."

The court has fixed February 26 for the hearing of PDP's application, following the argument of the plaintiff's lawyer, Mr. C.N. Eke, opposing the application for joinder.

Eke also told the court that he would like to file his preliminary objection against the PDP's application for joinder before the next adjourned date.

Jonathan had earlier responded to the suit, arguing that contrary to the provision of the 1999 Constitution, an incumbent president's tenure could extend beyond four or eight years.

The suit is similar to another one filed by a chieftain of the PDP, Mr Cyriacus Njoku, before an Abuja High Court on March 20, 2012, asking it to stop Jonathan from contesting presidential elections in 2015 on the grounds that he was already in his second term in office.

Justice Mudashiru Oniyangi had earlier fixed November 13, 2012, to deliver judgement in Njoku's suit but subsequently adjourned it indefinitely without giving any reasons.

In the current suit, Amadi also asked the court to direct the INEC not to accept Jonathan's nomination as candidate of the PDP by 2015 because, by so doing, Jonathan would foist illegality in the polity since the oath of allegiance and office he would take if he won would violate the two oaths of allegiance and office stipulated by the 1999 Constitution.

But in the counter-affidavit filed on his behalf by Mr Ade Okeaya-Inneh (SAN), Jonathan argued that court lacked the jurisdiction to entertain Amadi's suit, saying that the plaintiff was an ordinary individual who was not qualified to request court to stop him from contesting the 2015 presidential election.

Jonathan said Amadi failed to disclose reasonable cause of action and that the plaintiff's claim was hypothetical and academic. Jonathan also averred that he took the first oath of office on May 6, 2010, following the death of former President Umaru Musa Yar'Adua.

Okeaya-Inneh said, "The question that arises for determination is whether, having regard to the facts of this case, he is in his first or second term. In other words, given that the constitution prescribes a maximum of two terms of four years, each totalling a maximum of eight years as president, is he eligible to run for re-election in 2015?

"If yes, that would mean that, if he wins, he would be in office for a period of more than eight years. On the other hand, if the answer is no, that would mean that he, for no fault of his, would be constrained to serve for a period of less than eight years.

"Given that between May 6, 2010, and May 28, 2011, he held office for the unexpired term of office of the late President Yar'Adua following the death of the latter, does the constitution contemplate that the period of about one year and three weeks would constitute his first term, a period of less than half of the constitutionally prescribed period of four years.

"In resolving this issue, the court is invited to make a determination whether the period of May 6, 2010, to May 28, 2011, wherein Jonathan occupied the office of the president can, in law, be regarded as one term of office, and relevance of the oath of office Jonathan took on May 6, 2010, in computing the tenure of office of Jonathan in line with sections 135 (1) and (2), 137 (1)(b), 140 (1) and (2) and 146(1) of the 1999 constitution."

The senior advocate argued that it was better with the political situation of Nigeria for Jonathan to spend nine years in office than to spend less than eight years.

"This approach is also consistent with the time-honoured canon of interpretation to the effect that if confronted with two interpretations, one of which would abridge a person's right and another which would maintain or enhance a person's rights, the former constitution yields to the latter."

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