Jonathan’s ligibility for 2023 presidential election

The arguments relating to the legal correctness of former President Goodluck Jonathan’s eligibility to contest the 2023 presidential election have been as broad as they are long.

While the learned silk, Femi Falana, is of the opinion that, by virtue of Section 137 (3) of the constitution, Jonathan is caught by the doctrine of retroactivity or alternatively that the constitution does not permit a president to stay more than eight years in office, his learned silk friend, Mike Ozekhome argues that Section 137 (3) is prospective and that Jonathan, having only been elected once as president, through an election, is free to contest election as president again.

Now, let us begin to look at the arguments of the two learned silks by doing some clarifications on prospectivity and retroactivity. A prospective law is one which provides for, and regulates the future acts of men, and does not interfere with the past. It is a general rule that laws are fashioned to be prospective and not retroactive. This is with a view to looking forward and not backward as expressed in the legal maxim lex prospicit, non respicit.

You know a prospective law by its language. For example, where a law, passed on a particular day, says that it shall be effective from a particularly mentioned (present or future) day or is silent on the operational day, (like the instant one), it is apparently prospective. Contrarily, if it says it shall be effective from a particularly mentioned day but with an express provision of retroactivity, (such as, this law shall have a retroactive effect), then it is retroactive. It is trite law that without this kind of express provision, a statute will be deemed to be prospective. This, as held in Olaniyi Vs. Aroyehun [(1991) 5 NWLR (pt 194) 652)], is a well settled legal principle.

There is, however, a third possibility – where the law is bedevilled with a lack of specificity. Here, a lawyer has to look with the eagle eyes to see the intendment of the statute. In the instant case, what the amendment in section 137(3) says is this: “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.” Here, the law looks good as prospective without any addendum insinuating retroactivity. Thus, with no clause clarifying or supplementing the amendment, it has equipotential connection with prospectivity.

Muhammad Abdullahi, a Lagos lawyer, has lent his voice to the debate by arguing that “From a careful decko at how section 137(3) CFRN is worded, it may appear to one that a retrospective application of its provision is intended. And, I think, it so appeared to the learned silk, Femi Falana but not the learned silk, Mike Ozekhome.”

Without doubt, a careful examination of the words used in this constitutional provision indicates retroactivity. The word “was” is the defining fundamental force of the law here. The word “was” is a past tense indicative form of be, meaning “to exist or live.” The drafters are clear about the intendment of the law. This past indicative, “was”, is usually employed when you are talking about reality and known facts.

Indeed, the tone of the law disqualifies no other person but Goodluck Jonathan, who in reality “was sworn in to complete the term for which another person (Musa Yar’adua) was elected as President.” Thus, that word “was” has effectively foreclosed any possibility of Goodluck Jonathan being elected to the office of president again, having served his entitled single term as per section 137(3). 

The question the court will be asked to answer is: can Jonathan claim he was not sworn in to complete the term for which Musa Yar’Adua was elected as President? The answer will be “no.” Then, the conclusion will be he “shall not be elected to such office for more than a single term.”

Furthermore, when you have a law, like this, that is apparently simultaneously prospective and retroactive, what you need to do, in order to ascertain the effectivity of the law itself , is to see if there are exceptions to prospectivity. That will clearly undress the deep intentions of the drafters.

In this instant law, one obvious exception to prospectivity is that this law is meant to be curative. Thus, it is meant to deflate Ozekhome’s argument that, in as much as Jonathan has not been elected twice (despite having spent 5 years as president), he is fit to spend another four years to make nine. It is also meant to give fillip to Falana’s argument that the law goes to the nitty-gritty of curing and fixing the legal defect of making Goodluck Jonathan spend more than the eight-year term limit contemplated by the constitution, as implied in the decision of the Supreme Court in Marwa v. Nyako [(2012) 6 NWLR (Pt.1296) 199 at 387].

The Cyriacus V Goodluck Ebele Jonathan’s [(2015), LPELR-244496 (CA)], case cited by Ozekhome has, therefore, been overtaken by the new section 137 (3). Presently, no one will be contesting Jonathan’s eligibility in the March 28, 2015 presidential election. Also, no one will be contesting the number of times he has taken the oath of office as president. Besides, no one will be disputing his only one term in office. In fact, it will not be of interest to anyone to look at how many times Jonathan has presented himself for election as president. Besides, his empowerment via the “doctrine of necessity” will not even be on the table. Moreover, the fact that “Jonathan was sworn in as president to serve the unexpired residue of office of Yar’Adua” would not be in contention; neither will anyone query his election as president for the first time in 2011, on his own merit.

The only thing that anyone will be interested in is the answer to Ozekhome’s question as to whether Jonathan could be retrospectively caught in the web of section 137 (3), signed into law in 2018. Without mincing words, the answer to this question is in the affirmative. Ozekhome’s reference to an existing Court of Appeal decision allowing Jonathan to contest the 2015 presidential election can no longer help Jonathan in 2023 by virtue of the retroactive effect of section 137 (3) of 2018.

In conclusion, I disagree that Femi Falana should be seen as Jonathan’s antagonist for bringing the issue of his disqualification up as Ozekhome would want us to believe. Everyone knows that Falana is a straightforward down-to-earth officer of the law, who comments on issues of the law as he deems fit, not minding whose ox is gored. To Falana always, there is no sentimentality. He does not vacillate anytime he is arguing a point of law, and most times he has been right. Indeed, Falana should be commended for trying to help Jonathan and Nigeria too. Jonathan should watch his back. Something within me is saying that section 137 (3) is going to be his albatross, preventing him to be eligible as the candidate of any party for the purpose of the 2023 or any future presidential election (unless the law is changed again). Alternatively, if he is fielded as a candidate, he may not be able to get away from the bashing of the Supreme Court, that has been dared many times in the past.

Dr. Babatunde, a legal practitioner, writes from Zagreb, Croatia, Eastern Europe.