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Thursday, 19 September 2013

The Right to Contest: GEJ and The Constitution, By Babayola Toungo


In a suit instituted by Buba Marwa against Nyako (later joined by four other goveors and INEC), the Supreme Court of Nigeria delivered a landmark judgement on January 27th, 2012, asking the five governors to step down from their offices handover to their successors.
For those among them eligible for second term in office, they were to submit themselves to the electorate for another mandate. But critically, the court pronounced that the tenures of the five governors elapsed since May 29th, 2011 thereby bringing to an end the issue of tenure elongation or otherwise.
The governors, who were made to go for re-runs for the 2007 elections always assumed the period they spent governing their states before their victories were annulled was “awuf” – bonuses if you may. The Court was emphatic that the Constitution does not make room for anybody elected into an executive office spending a day more than the maximum allowable eight years and if we are to go by the governors’ reasoning, then some of them might have stayed in office for a period of nine years or more. The Supreme Court ruling was very clear and unambiguous.
With this Supreme Court ruling in mind and the provision of section 135 subsection 2b, which is similar to section 180 subsection 2b, I find it hard to comprehend the “no vacancy in the Villa” campaign going on. I am also at a loss as to whether the Supreme Court ruling was only for the governors or that it encompasses all executive offices seeing the similarities in sections 135 and 180 of the constitution. The noise about Goodluck Jonathan contesting or not in 2015 and its legal implications taking into account the said ruling readily comes to mind. Section 135 of the 1999 constitution (as amended) deals with the issue of tenure and is explicit on the period. Subsection 2 of section 135 says “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 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.
Taking the Supreme Court ruling and Section 135 (2b), one will be forgiven to assume Jonathan is legally barred from contesting in 2015 irrespective of how high the decibel level of Clark and Anenih’s chorus singers – the likes of Abba Gana, Ameh Ebute, Jerry Gana, Asari Dokubo, et al. Before Jonathan’s attack dogs descend on me, I would like us to study these legal positions carefully and dispassionately in order to locate where Jonathan’s ambition fit in.
The Supreme Court ruling says maximum allowable period of eight years made up of two terms of four years each. Therefore if Jonathan is to contest in 2015 and be forced once again on Nigerians for another four years, that will make him president for nine years since he took over from the late Umaru ‘Yar Adu’a on May 6th, 2010.
This goes against the grain of the Supreme Court ruling and since by convention all rulings and judgements from the Supreme Court are part of our sources of law, this particular one becomes a law of the land in as much as it is consistent with the constitution of the country.
So if the governors affected by the ruling forfeited their “awuf” period, it is only rational that Jonathan should also be affected by the ruling seeing the similarities between sections 135 and 180 of the constitution, our grund norm. This is without prejudice as to whether he promised our mercenary governors that he would not contest in 2015 before they “endorsed” him and rig him into office in 2011.
On the other hand section 135 subsection 2b of the constitution makes it clear that a person’s tenure ends from such a time that the last person so elected into such office will have taken another oath but for his death – meaning the tenure of the dead person might have elapsed and he may seek for a renewed mandate but for his death. Jonathan took over from ‘Yar Adu’a whose first term would have expired by May 29th, 2011 and might have taken another Oath of Allegiance and Oath of Office were he to have contested and won the election but for his death. And the second tenure will come to an end by May 29th, 2015.
So taking the relevant sections and subsections of the constitution and the supreme court judgment regarding the five governors in (Marwa V. Nyako), Goodluck Jonathan will spent nine years as the president of Nigeria. One year more than the constitutionally stipulated period. If this is the case, and that is my understanding, then Jonathan doesn’t have the constitutional right to contest for the office of the president of Nigeria, irrespective of how bloody his campaign is going to be (bloody according to one of his closest lieutenants).
The doctrine of necessity doesn’t have a room here or any element of good luck. In anticipation of this constitutional roadblock, Jonathan appeared to have deployed his uncouth campaign co-ordinators to launch verbal missiles and threats against those who may have the guts to call for the application of the right things. The likes of Edwin Clark, Ahmed Ali Gulak and Asari Dokubo have been throwing threats like confetti at the same people they want to garner support for their dozy candidate. Spent forces like Abba Gana and Ameh Ebutteh have been recruited to give the campaign a touch of national spread.
Goodluck Jonathan and his handlers believe because of the good luck in his name, is born to lead us whether we like it or not. Ali Gulak went to the ridiculous extent of saying God has packaged Nigeria and Nigerians and handed us over to Goodluck Jonathan. Gulak also in a recent press conference said nobody should stampede Jonathan into declining to contest in 2015 because the constitution guarantees him the right to contest. But my reading of section 135 appears to suggest otherwise. The constitution can ‘stampede’ Jonathan into bowing out.
The refrain by the Jonathan campaigners that northerners claimed to have been born to rule doesn’t hold water anymore because with the campaign of brimstone by his supporters, Nigerians are beginning to know those who claimed to be born to rule. With gerantocrats and creek riff raffs threatening that there will not be Nigeria if Jonathan isn’t given a second term, with the security agencies looking the other way, they have the right to claim the sobriquet of being to rule. The fact that no northern politician ever raised the spectre of violence on account of his perception that he may be barred from contesting should effectively put to rest this fallacy. In a civilised society anyway.
Instructively while Edwin Clark, Asari Dokubo and Ayo Oritsejafor are beating the drums of war and no security agency deem it necessary to even slap them on the rest, Senator Sani Ahmed Yerima was arrersted from the Radio Nigeria Kaduna during a phone-in programme in a commando style operation with the Kaduna state Police Commissioner leading a posse of men in five trucks. His offence? He was said to have threatened that the leadership of the then yet to be registered All Progressives Congress (APC) will take to the streets in the event Jega’s INEC refuse to register their party. Yerima had to write an undertaking before he was released. No such treatment for Clark or Dokubo.
If it is alright for those in Jonathan’s corner to be sending barbs in the direction of those who opposed his style of administration and the undisguised ambition of contesting in 2015, why is it a gargantuan security issue when any opponent of the presidency voice his disagreement to Jonathan? Case of different strokes for different folks? If it is okay to block the passage of an elected governor, the chief security officer of a state according to the constitution, then Jonathan’s people shold be ready to either throw more people in jail or kill them. If you can’t take the heat, get out of the kitchen.
If Goodluck Jonathan and his horde of Gulaks have honour (though I doubt they have) he shouldn’t contemplate contesting, constitutional right or not for the simple fact that he promised at four different occasions not to go for a second chance when voted for in 2011. The promise that stands out to me was the one made in Addis Ababa. I pray his handlers may not tell us he made the promise while in the toilet since the president’s stomach have something against Addis.

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