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Monday, 23 September 2013

2015: Is Jonathan constitutionally qualified to contest?

  •  by  Shaba Ibrahim
  • THE debate over the qualification or otherwise of President Goodluck Jonathan, to seek re-election in 2015 is assuming an interesting dimension, with  members of the public expressing divergent views on the matter, the most recent being the view expressed by J. S. Okutepa, a Senior Advocate of Nigeria (SAN) in a national newspaper last week.
    While not disputing the learned SAN’s right to air his views on such a topical issue, especially as a member of the privileged class of legal practitioners, I am however of the view that the opinion expressed by the learned SAN borders more on curious moral logic than law.
    A brief foray into the high points of the learned SAN’s postulation will be helpful in appreciating the basis of my conclusion. Hear him:
    That by virtue of Section 137 (1) (b) of the Constitution of the  Federal Republic of Nigeria 1999 as amended, President Goodluck cannot seek re-election in 2015 having, according to him “…been first elected as president in 2007.”
    That by the said provisions,  “a person contesting the office of the vice president is by implication contesting the office of the President.”
    That President Jonathan, “even though elected as vice president, was elected as President because in the absence of the President, he became the President on the basis of the election that brought him and the late President to office.”
    That a Nigerian President can only spend a maximum of eight years in office, as it is not the intention of the framers of our Constitution that anyone should spend more than eight years as President, notwithstanding the circumstance.
    The learned senior counsel has cited in aid of his submission the cases of Marwa V. Nyako (2012) 6NWIR (Pt 1296) P.200-311, P.D.P V. INEC (1999)7 SCNJ 297 and concluded that  President Jonathan would be breaching the Constitution should he be re-elected as President in 2015, having been so elected at two previous elections.
    With due respect to the learned Senior Advocate, his interpretation of Section 137 (1)(b) of the Constitution does considerable violence to the much-cherished principle of constitutional interpretation, which is that one must not ascribe a reasoning so incongruous and unreasonable in interpreting the provisions of the constitution. At the risk of stating the obvious, President Jonathan was elected as Vice President and NOT President in 2007 and I am at a loss as to how the office of the President and the vice President can be said to be the same when the Constitution has set for each separate and distinct roles. I also cannot see how the two offices would approximate to the other in whatever circumstance as posited by the learned SAN.
    Jonathan assumed office as President in 2010 soon after the death of President Umar Yar’Adua. He was NEVER elected as such. The language of the law is clear and unambiguous and must be construed literarily. If the farmers of our Constitution intended that the residue of tenure of a dead President would count as full tenure for a succeeding vice, it would have been so stated in clear terms.
    I find the cases of Marwa Vs Nyako and PDP Vs INEC (supra) unhelpful to the learned SAN’s argument as a judicial authority is precedence for that which it decides only; there cannot be precedence by assumption as in none of the cases relied upon by the learned SAN was the provision of Section 137 (1)(b) directly in issue. The term of years envisaged by the Constitution is one that has arisen by means of a democratic election and no more. This is settled law!
    Another issue upon which the learned SAN based his argument is that under no circumstance does the Constitution contemplate anyone spending more than eight years in office as president.
    President Jonathan, in the estimation of the learned SAN, would be spending ten years as president if he is to contest election as President in 2015. Again, in my respectful view, this argument stands logic on its head, for if a man elected as Vice President could be deemed to be President, what then happens to a man elected Vice President for eight years seeking election as President? To be persuaded by this rather dreadful submission of the learned SAN on this issue is to declare a two-term holder of the office of vice president ineligible to contest the office of the president soon after his tenure as Vice President! This cannot be said to be the intention of the framers of our Constitution! I, therefore have no hesitation dismissing the views expressed by Mr. Okutepa on the appropriate interpretation of the section of 137(1) (b) same being circuitous, absurd and unduly restrictive. Let me not say that those views were influenced by the medium of expression!
    Not even the antagonists of Mr. President can in my view legitimately canvass this argument as was done by Mr. Okutepa because my understanding of their case against Mr. President is one founded on the morality of offering himself for contest, having allegedly pledged to run for just a single term in the build up to the 2011 elections. Otherwise, of what use would it be, asking an ab initio disqualified candidate to enter into an undertaking not to run for a particular office for a second term?
    I submit that the alleged undertaking not to run in 2015 is in itself an admission of the legal right of Mr. President to contest for a second term, which to my mind places only a strong moral burden on him, if indeed such an undertaking exists.
    Shaba is the Special Adviser to the governor of Kogi State on  Multilateral Cooperation.

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