Resting the Eligibility Question
Except the Supreme Court decides otherwise, it has been established now that governors or presidents who assume office to complete the tenures of their former principals can go ahead to run for two terms in office, Davidson Iriekpen writes
Until the Supreme Court decides otherwise, it has now been established albeit temporarily that President Goodluck Jonathan is eligible to contest this month’s presidential election and run his two terms of eight years having completed the late President Umaru Musa Yar’Adua’s tenure.
The issue had caused a serious debate in the polity until the Court of Appeal in Abuja last week resolved it and put the matter to rest, albeit temporarily. Jonathan was elected vice-president and sworn in on May 29, 2007 alongside his boss, Yar’Adua, The tenure was for a term of four years subject to a constitutional renewal.
But Yar’Adua, whose first term in office was to end in 2011, died on May 5, 2010. This automatically made Jonathan to be sworn in as the new president to complete Yar’Adua’s remaining 12 months, first having assumed that office in acting capacity. He, however, contested and won his own election and subsequently was sworn on May 29, 2011.
Soon after Jonathan was sworn in, controversy on whether he was eligible to contest the 2015 election resonated. This forced a member of the ruling Peoples Democratic Party (PDP), Mr. Cyriacus Njoku, to approach an Abuja High Court in 2013 with a suit seeking to disqualify Jonathan from contesting for the presidency in 2015.
Njoku asked the court to declare that Jonathan’s tenure of office began on May 6, 2010 when his first term began. He also urged the court to hold that Jonathan’s two terms should end on May 29, 2015 having taken his second oath of office on May 29, 2011.
Consequently, he urged the court to determine whether in the light of the express provisions of section 137(1) (b) of the 1999 Constitution, as amended, President Jonathan can be administered the presidential Oath of Office thrice.
The plaintiff also asked the court to hold that by virtue of Section 136 (1) (b) of the Constitution, no person (including Jonathan) should take the oath of allegiance and the oath of office prescribed in the Seventh Schedule to this Constitution more than twice. He demanded an order of injunction restraining Jonathan from further contesting or attempting to vie for the presidency after May 29, 2015 when his tenure would end.
In addition, he asked the court to determine “Whether Section 135(2) of the Constitution, which specifies a period of four years in office for the president, is only available or applicable to a person elected on the basis of an actual election or includes one in which a person assumes the position of president by operation of law, as in the case of Jonathan.”
Besides, he sought a declaration that “the President’s tenure of office began on May 6, 2010 when his first term began and his two terms shall end on May 29, 2015 after taking his second oath of office on May 29, 2011 and by virtue of Section 136 (1) (b) of the Constitution, no person (including the first defendant) shall take the oath of allegiance and the oath of office prescribed to in the Seventh Schedule to this Constitution more than twice.
Delivering judgment, Justice Mudashiru Oniyangi of an Abuja High Court not only questioned Njoku’s locus standi to institute the suit, but held that Jonathan is currently on his first term of four years.
He said “if he so wishes, he can seek from his political party or any other party, the sponsorship to contest in the 2015 presidential election.”
The court further held that in the eyes of the law, Jonathan’s tenure commenced on May 29, 2011, saying he only assumed the presidential seat in 2010 following the demise of his boss, the late President Yar’Adua, whom it said duly contested and won the 2007 presidential election.
In its interpretation of Section 137 of the constitution, the court, insisted that the issues for determination were “whether the death of Yar’Adua and swearing-in of Jonathan to complete the tenure, remains four-year tenure? Did the first defendant (Jonathan) contest for the presidency the first time in 2007? Was he ever declared and sworn-in as president in 2007? Was he the presidential candidate of the PDP in 2007?”
Justice Oniyangi further maintained that “the distinguishing factor is that after the election of Yar’Adua, there was no election or by-election upon which Jonathan became president. He was merely asked to assume the position. I will like to borrow the word that was used by the legislature then, ‘doctrine of necessity.’ He was not elected into the position but was asked to assume the position. Having exhausted that tenure, he sought and obtained the ticket of the party to contest for presidency in 2011.
“Consequently, it is my considered view that the first defendant is on his first tenure of four years. It therefore follows that if he so wishes, he can seek from his party to contest for presidential election in 2015. Let me put it on record in order to guide against any mischief; this court is not saying that he is the automatic candidate of the PDP or any party, but that he could seek for the sponsorship of his political party or any other party of his choice to vie for the position.
“He is running his first tenure and can aspire to seek for nomination like any other Nigerian to contest in 2015. I do not see how such right can affect the plaintiff in anyway. When that time comes, the plaintiff can also seek alongside other aspirants to vie for presidency subject to nomination by his party,” he added.
The court equally held that Section 137 applies only when someone is elected and not when such person assumes the office like in the instant case. “In the case of Jonathan, the section applies to when he was elected as president – by implication – when he took oath of office on May 29, 2011.
“I therefore hold that the tenure of office of the first defendant did not begin on May 6, 2010 but May 29, 2011. The constitution is clear that no person shall take oath of allegiance and oath of office prescribed in the seventh schedule of the constitution more than twice except on special circumstance as witnessed in the demise of Yar’Adua. Thus, the order of injunction against the first defendant contesting in 2015 is refused.”
Dissatisfied with the judgment, Njoku appealed and urged the appellate court to set aside the judgment of Justice Oniyangi and in its stead, grant all the reliefs sought by him. After an elaborated and exhaustive argument by counsel to the appellant and respondent, a panel of five justices headed by Justice Abubakar Yahaya last week delivered its verdict.
In a unanimous decision, the court did not only dismiss the appeal but held that the appellant’s suit was speculative and imaginary. In the lead judgment delivered by Justice Yahaya, the court held that Jonathan had only spent one term in office as the president going by the provision of the constitution.
The court held that when a president dies, the vice-president automatically becomes president as provided for by Section 130 (1)(2) of the 1999 Constitution, adding that this does not mean that the vice-president who takes over is running his own term but merely completing the tenure of the late president. He added that the tenure of the vice-president as a substantive president can only start to count if he decides to contest for an election and wins.
The court further submitted that it was not election that produced Jonathan in May 2010, and that the oath he took then was not an oath of an elected president as provided for by Section 180 of the 1999 Constitution.
It reiterated that the process which produced Jonathan in 2010 was not election but a constitutional process, adding that it was different from what happened in 2011. It also stated that the process of election was followed in 2011 and that the oath of office taken in 2011 was the first by Jonathan as an elected president having fulfilled all the processes of election.
“In this appeal, it is not controverted by the appellant that the first oath taken by the first defendant (Jonathan) was the oath he took as the vice-president and not as president. But he took the oath in May 2010 to complete unexpired tenure of the late Umaru Musa Yar’Adua.
“When a president dies, the vice-president automatically becomes president as provided for by Section 130 (1)(2) of the 1999 Constitution. It was not an election that produced the first respondent in May 2010, the oath he took then was not an oath of elected president as provided for by Section 180 of the constitution.
“The process which produced the first respondent in 2010 was not election but a constitutional process. This was different to what happened in 2011. The process of election was followed in 2011. The oath of office taken in 2011 was d first oath taking by the first respondent as an elected President having fulfilled all the processes of election,” the court further held.
On the argument that the court should disqualify Jonathan from contesting this month’s presidential election because he was not eligible, having taken oath of office twice, the court held that Section 37(1)(b) disqualifies a person from contesting for president if he had been elected twice. It added that disqualification is through election and not oath taking.
“Section 37(1)(b) disqualifies a person from contesting for president if he had been elected twice. Disqualification is through election and not oath-taking. Election is a process of choosing a person to occupy a position by voting. When election is given its literal meaning, it connotes when a voting is employed to choose a person for political office.
“This did not take place when Jonathan stepped into the shoe of his principal who went to the great beyond. To say these things were done is to import words not used by the constitution. Section 146(1) of the constitution cannot be deemed an election for a vice-president to step into the office of a president.
“Election involves conducting primaries by party, nomination, election and announcement of results. All these processes were not done. If a vice-president succeeds a president that dies, that cannot be challenged. It is a mode of stepping into the vacant office provided for by the constitution.
“The first respondent had not been elected as president before 2011 and his two terms cannot end in 2015. If you are not disqualified, then you are qualified to contest. The first respondent is not disqualified and on that note, he is qualified to contest . The appeal lacks merit and fails in its entirety. It is hereby dismissed. Judgment of lower court is hereby affirmed. The sum of N50,000 each is to be paid as cost to each of the defendant,” the court held.
The implication of the Court of Appeal judgment is that since Nigeria operates a federal constitution, it has now been established that governors or presidents who assume office to complete the tenures of their late principals can now go ahead to run for two terms in office of eight years.