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Thursday, 15 August 2013

Why-President-Jonathan-is-not-eligible-to-contest-in-2015 - Okoi Obono-Obla

Why-President-Jonathan-is-not-eligible-to-contest-in-2015
 
In a seminal thought-provoking analysis, Okoi Obono-Obla, a lawyer and chieftain of the APC who was Deputy National Secretary of the defunct CPC, makes a case against President Jonathan’s re-election bid in 2015…

It is a notorious fact that on the 6th May, 2010, in a solemn but sober ceremony in the Office of the then Chief Justice of Niger...
ia, Honourable Justice Aloysius Katsina-Alu administered the Oath of Office and Oath of Allegiance as enjoined by the Seventh Schedule to the Constitution of the Federal Republic of Nigeria, 1999, on the then

Acting-President Goodluck Jonathan as the 5th President of the Federal Republic of Nigeria following the death of then President Umaru Musa Yar’adua.

It is well settled that by virtue the provisions of Section 146 (1) of the Constitution the Vice-President shall hold the office of President if the office of the President becomes vacant by reason of death or resignation or impeachment, permanent incapacity or the removal of the President from office for any reason in accordance with the provisions of Section 143 of the Constitution. It was obvious that it was Section 146 (1) of the Constitution that was invoked to give legitimacy and constitutionality to President Jonathan’s swearing in as President on the 6th May, 2010.

On the 29th May, 2011, President Jonathan was sworn in as the 6th President of the Federal Republic of Nigeria after he was declared the winner of the Presidential Election held on the 16th April, 2011, by the Independent National Electoral Commission (INEC). Accordingly, President Jonathan took the Oath of Office and Oath of Allegiance as enjoined by the Seventh Schedule to the Constitution of the Federal Republic of Nigeria (supra) for the second time.

It goes without saying that President Jonathan has taken the Oath of Office and Oath of Allegiance twice, thus: on the 6/5/2010 & 29/5/2011 respectively. The pertinent question is: What is the constitutional implication or consequences of the taking of the Oath of Office and Oath of Allegiance twice by President Jonathan?

By the provisions of Section 135 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999, no President can take the Oath of Office more than twice. President Jonathan first took the Oath of Office on the 6th May, 2010, as President after the death of late President Umaru Musa Yaradua. President Jonathan then took another Oath of Office on the 29th May, 2011, after INEC had declared him the winner of the Presidential Election held on the 16th April, 2011.

Section 135 (1) & (2) of the Constitution provide thus:

“(1) Subject to the provisions of this Constitution, a person shall hold the office of President until – (a) his successor in office takes the oath of office; (b) he dies whilst holding such office; or (c) the date when his resignation from office takes effect; or (d) he otherwise ceases to hold office in accordance with the provisions of this Constitution. (2) Subject to the provisions of subsection (1) of this section, the President shall vacate his office at the expiration of a period of four years commencing from the date, when – (a) in the case of a person first elected as President under this Constitution, he took the Oath of Allegiance and the Oath of office; and (b) in any case, the person last elected to that office under this Constitution took the Oath of Allegiance and the Oath of office but for his death, have taken such oaths”.

President Jonathan was elected Vice-President in 2007. However became President on the 6th May, 2010, to complete the tenure of President Umaru Musa Yar’adua which would have expired on the 28th May, 2011. It goes without saying that President Jonathan inherited the tenure of President Yaradua. After President Jonathan became President on the 6th May, 2010, he is deemed to have been “First elected” to come under the contemplation of Section 135 (1) (b) of the Constitution. Ordinarily President Jonathan would have been deemed “First elected” on the 29th May, 2011, if he had not become President on the 6th May, 2010. President Jonathan did not become Vice President by selection. He was elected Vice President. He contested the Presidential Election of 2007 alongside the then President Yar’adua. He was then regarded as an associate of President Yar’adua. He cannot extricate himself from President Yaradua’s tenure. After he took over as President on the 6th May, 2010 he was deemed to have continued with the term or tenure of President Yaradua. That tenure ended on the 29th May, 2011. The relevant provisions of the Constitution especially Sections 130, 132, 134, 137, 141, 142, 143, 144 and 146 thereof must be interpreted or construed holistically not in isolation from one another.

In ATTORNEY-GENERAL OF THE FEDERATION vs. ATIKU ABUBAKAR (2007) 10 NWLR (Pt.1041) 1, Sunday Akinola Akintan, J.S.C. (reading the Lead Judgment) said thus: “ … As I have already stated above, the office of the Vice President is created by the Constitution. His appointment and removal from office are also provided for in the Constitution. Although the President had to nominate him as at the time he wanted to contest for the office of the President, and the Constitution also requires that the person nominated should be from the same political party as the President, I believe that the Constitution assumes that the President and the Vice President should maintain the same relationship throughout their term in office.

The Nigeria Constitution, like the American Presidential System, envisages single executive power for which the President is the head and in whom the executive powers are vested. Article 11 of the Constitution of the United States, just like section 5(1) of our Constitution, provides that “the executive power shall be vested in a President of the United State.” The principle implies the preclusion of a current vesting of the executive powers in two or more persons of equal authority. The Principle also has the effect that the legislative organ cannot take away from the President or confer on others, functions of a strictly executive nature: See Myers v. United States 272. US 52; Nowak And Rotunde, Constitutional Law, 6th edition paragraph 7.14, page 298; and Nwabueze, Constitutional Democracy in Africa, (Vol. 4) Forms of Government, page 76. One of the implications of the principles of a single executive, as relates to the Vice President, is that although the office of Vice President is, unlike that of a minister under the system, an elective one, he is not voted in a separate election, but by the very same votes by which the President is elected. This is because, as already shown above, a Presidential candidate is required to nominate another candidate to run with him on the same ticket as mate or associate” for the office of Vice President. I believe that the unity contemplated by the arrangement transcends the election. I also believe and hold that their relationship should be throughout their joint term.

The position is as aptly described by Prof. Nwabueze at pages 78 to 79 of his book, cited supra, where he stated as follows:“It is not intended to suggest that the union (between the President and Vice President) demands of the Vice that he should be a slave to the President, with no will or opinion of his own. It does not submerge his personality or individuality in that of the President or make them two-in-one …. As the President’s chief adviser, it is his prerogative and duty to discuss freely with him the policies and actions of the government, to point out any defects or errors in them, and the dangers to which they may expose the government. Nevertheless, having done this, the principle of collective responsibility binds him to all government decisions or actions, whether they emanated from the President alone or from the Executive Council. So long as he remains in office as Vice President, he is not free to oppose in public decisions or actions of the President or of the Executive Council, no matter that he personally disagrees with them. His freedom to disagree and to criticize can only be exercised privately in a meeting with the President alone or in the Executive Council. Freedom on the part of a Vice President to criticize his President publicly for mismanagement or corruption is certainly not consistent with the loyalty required of him as a member of the President’s team. It is worse still that a Vice President should make mismanagement or corruption by the President a reason for seeking openly to contest the office against him. Continued faith in the President should be the only reason for continuing to serve under him. More importantly, it is the only explanation for an interpretation of a Vice President’s continued stay that the electorate can grasp and identify with…”
The interpretation of Section 135 (1) of the Constitution would surely be different from the interpretation which has been given to Sections 180 subsections (1) & (2) of the Constitution by the Court in the celebrated case of Brig-Gen Mohammed Marwa vs. Admiral Murtala Nyako, that no Governor can take Oath of Allegiance and Oath of Office more than twice. This is because Sections 135 (1) and 180 (1)(b) of the Constitution are identical in all material particulars. It is necessary to reproduce Section 180 (1) of the Constitution which provides thus:
“(1) Subject to the provisions of this Constitution, a person shall hold the office of Governor of a State until:-
(a) when his successor in office takes the oath of that office; or
(b) he dies whilst holding such office; or
(c) the date when his resignation from office takes effect; or
(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution.
(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when -
(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and Oath of Office; and
(b) the person last elected to that office took the Oath of Allegiance and Oath of Office or would, but for his death, have taken such oaths”.
The Supreme Court in interpreting and construing Section 180 (1) (b) of the Constitution in the case of Marawa vs Nyako (supra) held that tenure elongation under any guise is not envisaged by the framers of the Constitution. The Governors of Adamawa, Bayelsa, Cross River, Kogi and Sokoto States in the Marawa’s case had sought interpretation of when their tenure would start to run having taken Oath of Allegiance and Oath of Office twice after they won elections ordered by the Court arising from the nullification of previous ones won by them. The Supreme Court said that the Oaths after they won the elections ordered by the Court were a nullity. The proper oath is the one they first took even though the election was eventually cancelled by the Court it does not cancel the Oath taken. Onnoghen, JSC illuminated thus:
“The fact that there was an election in 2007 as a result of which the 1st respondents (Governors) took their Oaths of Allegiance and of Office are facts which cannot be wished away, just as the acts they performed while occupying the seat. The said governors may not have been de jure governors following the nullification of their elections, which is not supported by the acceptance of their acts in that office as legal and binding on all and sundry, they were certainly governors de facto during the period they operated ostensibly in accordance with the provisions of the constitution and Electoral Act and as such the period they so operated has to be taken into consideration in determining the terminal date of their tenure following, what I may call, their second missionary journey vide a re-run election particularly as the constitution unequivocally grants a tenure of four years to a person elected governor of a state calculated from the date he took the Oaths of Allegiance and of Office which was the 29th day of May, 2007. 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. To calculate the tenure of office of the governors from the date of their second Oaths of Allegiance and of Office while ignoring the period from 29th May, 2007, when they took the first oaths is to extend the four years tenure constitutionally granted the governors to occupy and act in that office which would be unconstitutional. It is therefore clear and I hereby hold that the second Oaths of Allegiance and of Office taken in 2008, though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the four years tenure under Section 180(2) of the 1999 Constitution.” Per ONNOGHEN, J.S.C (Pp. 64-65, paras. B-C).
It is clear as the crystal that Section 135 subsections (1) and (2) of the Constitution is identical (pari materia) with Section 180 subsections (1) and (2) of the Constitution. The truth of the matter is that President Jonathan has taken the Oath of Allegiance and Oath of Office twice. Jonathan took Oath on 6/5/2010. He took another Oath on 29/5/2011. If President Jonathan contests the Presidential Election in 2015 and he wins and is inaugurated by taking the Oath of Office and Oath of Allegiance on the 29th May, 2015, he would have taken such Oath of Office and Oath of Allegiance thrice. This will be contrary to the intention of the framers of Section 135 (1) (b) of the Constitution. It would also mean that President Jonathan would have been in office as President of the Federal Republic of Nigeria for Nine (9) years.
The apposite question will be: Does the Constitution contemplate that a President would be in office for more than eight (8) years?   The answer to the question is clearly in the negative.  The Constitution only contemplates that a President must be in office for eight years at most. The Constitution does not envisage tenure elongation under any guise or camouflage.  As soon as President Jonathan became President on the 6th May, 2010, he was deemed to have been first elected as President. There is no gain saying that President Jonathan had been elected twice. President Jonathan is therefore undoubtedly caught up by the provisions of Section 135 (1) (b) of the Constitution and the principle laid down by the Supreme Court in the Governors tenure elongation case.
Those (including CHIEF EDWIN Clark, a long standing lawyer) who have been insisting that President Jonathan should run for elections in 2015 should read the Constitution objectively and leave politics and sentiments out of it. It is well settled that politics and sentiments have no place in the interpretation of the Law. It is what the Law says not how it ought to be that counts. The Constitution does not contemplate that a President should enjoy an extra day outside his four year tenure. Jonathan has four year tenure, 2011-2015. Jonathan had served for one year before he took Oath on winning the 2011 election. If we add this one year together with four years of his present term, it means that at the end of his present tenure he would have been President for five years. Assuming Jonathan contest and wins in 2015, the implication is that he would be serving as President for nine years.
“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. To calculate the tenure of office of the governors from the date of their second oaths of Allegiance and of office while ignoring the period from 29th May, 2007, when they took the first oaths is to extend the four years tenure constitutionally granted the governors to occupy and act in that office which would be unconstitutional. It is therefore clear and I hereby hold that the second Oaths of Allegiance and of office taken in 2008, though necessary to enable them continue in office, were clearly superfluous in the determination of the four years tenure under Section 180 (2) of the 1999 Constitution”.
President Jonathan shall be enjoying tenure extension if he contest and wins the 2015 election because he would have stayed for nine years by the time that tenures expires by 2019. This will constitute a breach of Section 135 subsections 1, 2 & 3 of the Constitution.
This is more than the eight years prescribed for a President who has won election twice. It is unconstitutional and illegal for a President to be in office more than what is prescribed by the Constitution. The Constitution does not contemplate that a President will be in office more than eight years at most. There is no tenure elongation under any guise.  It is well settled that the Supreme Court except under extraordinary circumstances will never depart from the principle it has laid down in the governors’ case. Jonathan has obviously found himself in a legal quagmire which only the Court will unravel come 2015. Jonathan cannot have his cake and eat it. The only legacy he can leave is to carry out comprehensive and far reaching electoral reform to usher in a free, fair and transparent election in 2015.
He should shun the advice and advocacy of sycophants and ethnic champions such as Edwin Clark. When Clark is talking about Niger Delta or South/South he is only thinking about his Ijaw ethnic nationality!

DailyIndependent

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