Run, Jonathan, run: You can!

The build-up to next year’s presidential election is fast assuming fever-pitch, at least if an analysis of the trending news in traditional and social media is anything to go by. At the very top of those news is the speculation about the intention of former President Goodluck Jonathan to re-contest for that office. The platform on which he might do so is irrelevant for our purposes (or, any purposes at all). What has agitated many commentators is the legality or constitutionality of that aspiration – if and when it manifests and he declares.

For now, ‘mum’ seems to be the word as the man himself has merely asked his supporters to “watch out”. Given the eminence of some members of the “No” camp, it is worthwhile to interrogate their position and to wonder whether it is legally tenable, regardless of its motivation.
Overview

Prior to 2018, there was no express constitutional or legal bar to a former Vice-President who completed the aborted tenure of his principal, seeking re-election on his own merit for the full tenor of two four-year terms. See Section 136(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”. Few, if any, of those who canvass the ineligibility of former President Jonathan for next year’s polls seem to have adverted their minds to this provision.

On the contrary, all of them (without exception) base their positions on the Fourth Alteration to the Constitution, which was assented to by President Muhammadu Buhari on June 11, 2018. What was the amendment all about? It simply added a new Section 137(3) to the Constitution, as follows:

“A person who was sworn-in as president to complete the term for which another person was elected shall not be elected to such office for more than a single term”.
President Jonathan’s peculiar position

In relation to former President Jonathan, the view of the nay-sayers is that, to the extent that he completed the death-aborted tenure of late President Umaru Musa Yar’adua, and having served a full four-year term himself, he stands disqualified from seeking another four-year term. Are they right?

I believe the answer will depend on the interpretation, which is placed on the aforesaid provision. Is it prospective, in terms of applying to a future Vice-President – who was elected after the 11th day of June 2018, when the alteration was assented to by President Buhari – and who assumes and completes the aborted tenure of a President, or is it retrospective (or retroactive) and applies to a person like former President Jonathan who completed President Yar’adua’s aborted tenure in 2010 – a full eight years prior to the amendment, which was assented to on June 11, 2018?

This is the crux of the matter. When does a law or Constitution (including their amendments or alterations) take effect? Can they apply retrospectively to affect vested rights, which accrued prior to such amendments/alterations? That is the question. We shall get into that anon, but before that, let’s attempt an answer to the first poser.

According to the Interpretation Act, Section 2:
“(1) An Act is passed when the President assents to the Bill for the Act, whether or not the Act then comes into force”;
“(2) Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, came into force –

In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed;
In any other case, on the day when the enactment is made”

From the forgoing, we can safely say that the 4th Alteration to the Constitution, which added the ‘controversial’ Section 137(3) thereto, took effect from the 11th day of June, 2018 when it was assented to by President Muhammadu Buhari. By virtue of Section 318(4) of the Constitution, “the Interpretation Act shall apply for the purposes of interpreting (its) provisions”.

Beyond the foregoing, however, it is settled that a statute is not to be given retrospective effect unless there are express provisions, which justify such a construction. See Ojokolobo Vs. Alamu (1987) 3 NWLR pt. 61 pg. 377 @ 396H, where the Supreme Court held that “It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties”.

In other words, as the apex court further held in Afolabi Vs. Governor Of Oyo State (1985) 2 NWLR pt. 9 pg. 734, statutes are to be interpreted as only applying to cases or situations which come into existence after they were passed, unless a retrospective effect is clearly intended. Notable exceptions to this, however, are retrospective criminal statutes, which are completely banned under Sections 4(9) and 36(8) of the Constitution.

Is Case Law Any Guide?
Directly? No. As previously opined, President Jonathan’s position is unique and unprecedented. However, by way of analogy, it is at least arguable that the express constitutional restriction of the ban on retrospective legislation to only criminal statues, ought not to be interpreted as prejudicing accrued rights which have vested under non-criminal provisions – such as those of former President Jonathan to seek a fresh four-year term – which accrued under the 1999 Constitution prior to its said 4th Alteration. I submit that such a construction would be grossly unfair, and would violate the right to equal protection of the law under Article 3(2) of the African Charter on Human and Peoples Rights. See N.N.P.C. vs. Fawehinmi (1998) 7 NWLR pt. 559 pg. 698 @ 616.

Finally, the following decisions of our appellate courts ought to make it clear beyond peradventure that our position on the correct interpretation of Section 137(3) of the Constitution as amended (i.e., that it is prospective and excludes President Jonathan) is the right one. They include:
“It is a cardinal principle for interpreting the provisions of the Constitution that where, in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them without resorting to any external aid”: Shola Vs. Ajiboye (1994) 6 NWLR pt. 352 pg. 506 @ 565F, per Bello, CJN;

“A broad and liberal spirit should prevail in interpreting the provisions of the Constitution”. BRONIK MOTORS Vs. WEMA BANK (1983) 14 NSCC 226 @ 240 .

“Any narrow interpretation of the provision (of the Constitution) will do violence to it and will fail to achieve the goal set by the Constitution”: AG OF ONDO STATE vs. AG OF THE FED (2002) 6 S.C. 1 @ 28, line 25, per Uwais, CJN;

“Where the words of the legislature are clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute”: National Bank Vs. Weide & Co. (1996) 8 NWLR pt. 465 pg. 150 @ 165 per Ogwuegbu, JSC.

“A judicial interpretation must avoid judicial legislation by putting in words or meanings that are clearly not there”: N.U.R vs. N.R.C (1996) 9 NWLR pt. 473 pg. 490 @ 503 per Musdapher, JCA.

“A court is not permitted to ascribe a meaning to a statue in order to make it conform with the judge’s own views of sound social policy. See Att-Gen. of Lagos vs. Dosunmu (1989) 3 NWLR pt. 111 pg. 552)”: ATT-GEN OF THE FED. VS. SODE (1990) 1 NWLR PT. 128 PG. 500 @ 545.
Conclusion

Seldom has the cliché that all is fair in love and war been more opposite than in the run-up to next year’s presidential elections. The brick-bats have come (and are coming) thick and fast with scant regard being paid to decorum or – even worse – factual and legal correctness. To his credit, President Jonathan has maintained a dignified near-silence, speaking only when it is absolutely necessary – and then, with his trademark civility. This is as it should be and is commendable.

In the light of the foregoing judicial, statutory and constitutional authorities, I believe that only the most bigoted and jaundiced opponent of the former President will continue to insist that he is constitutionally-ineligible to vie for the highest office – either next year or in any other election cycle.

I posit that the choice is solely his to make and there is absolutely no legal or constitutional impediment or bar to him doing so. I suspect that those who peddle a contrary narrative are motivated by less than altruistic considerations. Is anybody afraid of President Jonathan? That is the question.
Sani, Esq is a legal practitioner.