Nigeria: 2023 Presidency - Storm Over Jonathan's Eligibility

29 April 2022

Lagos — HUMAN rights lawyer, Mr. Femi Falana, SAN, and the Law and Order Group, yesterday, disagreed over the eligibility of former president Goodluck Jonathan to contest for president in 2023.

While Falana insisted that Jonathan cannot run by virtue of 137 (3) of the 1999 Constitution, the Law and Order Group disputed Falana's assertion.There have been speculations that the former president may defect from the Peoples Democratic Party, PDP, to the ruling All Progressives Congress, APC.

Jonathan was elected President of Nigeria in the 2011 general election, but lost to Muhammadu Buhari in 2015.

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But Falana, in a statement, said the former President has been disqualified by virtue of 137 (3) of the 1999 Constitution.

The statement reads: "It has been confirmed that former president Goodluck Jonathan has decided to join the APC for the purpose of contesting the 2023 presidential election. However, the former president is disqualified from contesting the election by virtue of 137 (3) of the Constitution of the Federal Republic of Nigeria 1999 as amended, which provides as follows:

"A person who was sworn in to complete the term for which another person was elected as president shall not be elected to such office for more than a single term.

"Some people have said that the amendment is not retrospective and therefore cannot apply to Dr. Jonathan. Assuming without conceding that the amendment is not retrospective it is submitted that under the current Constitution a President or Governor cannot spend more than two terms of eight years.

"In other words, the Constitution will not allow anyone to be in office for more than a cumulative period of 8 years. In Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199 at 387 the Supreme Court stated that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day longer.

"In the case of Governor Ladoja v INEC (2008)40 WRN 1 the Supreme Court rejected the prayer of Governor Ladoja for 11 months' extension to cover the period he was kept out of office through illegal impeachment. The Supreme Court rejected the prayer on the ground that a Governor is entitled to spend a maximum period of eight years or less and not more than eight years.

"It is not in dispute that Dr. Jonathan became the President of Nigeria in 2010 following the sudden death of President Umoru Yar'Adua. He later contested and won the 2011 presidential election. Having spent five years in office as President, Dr. Jonathan is disqualified from contesting the 2023 presidential election. The reason is that if he wins the election, he will spend an additional term of four years. It means that he would spend a cumulative period of 9 years as President of Nigeria in utter breach of Section 137 of the Constitution which provides for a maximum two terms of eight years."

Group counters Falana

But the Law and Order Group, yesterday, disputed Falana's assertion that the former president is not qualified to contest in the 2023 general elections.

The group, in a statement by its coordinator, Aliyu Mohammed, said: "We wish to categorically state that the said statement is erroneous and misconceived. In the first place, the 4th Alteration to the Constitution which introduced Section 137(3) was signed into law as part of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) by President Muhammadu Buhari in June 7, 2018.

"The said Section 137 (3) contains a commencement date which is the date it was signed into law. Thus, the provisions of Section 137(3) of the 1999 Constitution (4th Alteration) became operative on June 7, 2018, and not any time before that date.

"The law is settled beyond controversy or dispute that a law does not take effect retroactively. Again, it is the law that, where a piece of legislation sets out a specific commencement date, as in the case of Section 137 (3), all rights, duties, obligations and interests created or intended to be created or imposed by that law will not be applicable to rights, events or duties which accrued or occurred before then. The case of Modu vs. FRN (2015) LPELR 4047 is very apt.

"As we all know, Jonathan left office since 2015. The oaths of office which he took were taken prior to the enactment of Section 137(3). In a case decided by the Court of Appeal in 2015, the court rightly held that the oath of office sworn to by Jonathan on May 6, 2010, cannot be taken into account in the interpretation of Section 137(1) of the Constitution. It follows, therefore, that the only oath of office sworn by Jonathan is the one he took on May 29, 2011.

"Again, it is not in dispute that, Jonathan contested the presidential election in 2015 on the basis of the right which accrued to him. It follows, therefore, Jonathan has the right to contest the forthcoming presidential election on the platform of any of the registered political parties in Nigeria."

"Any contrary position will be manifestly inconsistent with the provision of the Constitution which grants him the right to contest for any elective office in Nigeria."

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