THE question, ‘Can President Goodluck Ebele Jonathan contest the 2015 presidential election?’, has been asked for the umpteenth time by the Nigerian literati and politicians alike. The question derives from a befuddled reading of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (the 1999 Constitution) and a certain misconstruction of the zoning formula of the ruling Peoples Democratic Party (PDP), which, in its constitution, has divided Nigeria into six geo-political zones, to wit, North-Central, North-East, North-West, South-East, South-South and South-West. Each of these zones is expected to produce the President of Nigeria in turn, effective May 1999, notwithstanding the fact that, of the eleven former heads of government that had previously presided over the affairs of Nigeria (1957-1999), eight of them were from the North. On May 29, 1999, Gen. Olusegun Obasanjo (rtd.), a Southerner from the South-West, became Nigeria’s President and Commander-in-Chief of the Armed Forces of the Federation. He was President of Nigeria from that date to May 29, 2003, when he was re-elected for a second and final term (2003 to May 29, 2007).
That Obasanjo remained in office for eight years was due to the sweet will and pleasure of the Nigerian electorate, which decided to bring him back to power “for a job well done”, doubtless, and not because the 1999 Constitution provides for an unconditional second term for any person elected to the office of President or because the PDP constitution has provided for a mandatory second term for such a person! If the first term of four years for a President after a duly contested presidential election pursuant to the provisions of Sections 132-134 of the Constitution is the ‘cake’ that is strongly protected by the Constitution, subject to the provisions of Sections 143, 144 and 146 thereof, the second and final term of additional four years is the ‘icing’ thereon. This icing, we submit, is contingent upon the sweet will of the Nigerian electorate: A second term is not automatic. An incompetent President would, as it were, be thrown overboard by the Nigerian voters at the end of his first term, in which event the geo-political zone producing the feckless President would lose out in favour of the next geo-political zone. The same zone that produced the defeated one-term President does not, cannot, and should not be heard to, insist on producing another presidential candidate or President because a bye-law has allocated a two-term of eight years to it!
This is the fact that is lost on all those regional leaders who imagine that the PDP’s concept of zoning automatically entitles a President from a given geo-political zone to an eight-year stay in office, regardless of the President’s performance in the first four years or even where the President from that particular geo-political zone dies in office after being inducted into it (a classic case of force majeure). If that were the intendment of the PDP’s constitution (a bye-law, be it noted), it would be anti-democratic, unreasonable and unconstitutional: Section 1 (3) of the 1999 Constitution forcefully declares that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency, be void.” The meaning of this is that there is no zone of twilight in which the 1999 Constitution and any other law possess concurrent authority.
Sections 143, 144 and 146 of the 1999 Constitution provide, respectively, that, in the event of the removal of the President from office, his permanent incapacity or death, the Vice-President “shall hold the office of President…” Once any of the incidents assiduously delineated in those sections occurs, the geo-political zone currently producing the President, loses out, under the principles of force majeure (a superior force or an unforeseeable natural or human event or occurrence beyond the control of the parties to a contract, an occurrence that renders the performance of the contract impossible).
When a President from a given zone either dies in office or is pronounced permanently invalided and, therefore, incapable of performing the functions of his office or is impeached under the provisions of Section 143 of the 1999 Constitution, the next geo-political zone whose candidate occupies the Vice-President’s office, automatically takes over as President. That is, or should be, the correct interpretation of the PDP’s zoning formula. It is, perhaps, pertinent to remind ourselves at this juncture, that the so-called zoning formula is the brainchild of the ruling PDP, one, just one, of the numerous political parties in the land!
Section 135 (2) of the 1999 Constitution unequivocally provides inter alia as follows: “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 –
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 in any other case, the person last elected to that office under this Constitution took the oath of allegiance and oath of office or would, but for his death, have taken such oaths”.
It should be noted that the accent in the foregoing paragraphs (a) and (b) is on the word ‘elected’. Indubitably, any person elected to the office of President and Commander-in-Chief of the Federation of Nigeria shall remain in office for no more than four years unless the Nigerian electorate decide to re-elect him for a second and final term of four years under the provisions of Section 137 (1) (b) of the 1999 Constitution. According to this section, subsection and paragraph, a person shall not be qualified for election to the office of President “if he has been elected to such office at any two previous elections…”
President Goodluck Jonathan has been elected to the office of President once (i.e. in April, 2011). He became Vice-President to Alhaji Umaru Musa Yar’Adua in May 2007; when that benevolent President became permanently invalided early in 2010, Dr. Goodluck Ebele Azikiwe Jonathan became Acting President through the instrumentality of the ‘doctrine of necessity’ or implied mandate, supported by the Madzimbamuto case in defunct Rhodesia and suggested to the National Assembly by Alfa Belgore (a former CJN). The necessity for the doctrine of necessity derived from the ‘zoning formula’ controversies. Then, in accordance with the provisions of Section 146 of the 1999 Constitution, Dr. Jonathan became President and Commander-in-Chief of the Armed Forces of the Federation on May 6, 2010, consequent upon the demise of Yar’Adua on May 5, 2010. It should be further noted that Dr. Jonathan did not become President and Commander-in-Chief of the Federation in May 2010 by election under the provisions of Sections 132-134 of the 1999 Constitution. In other words, he was not popularly elected; he was a child of circumstance! Ipso facto, he cannot be disqualified by the said section 137 (1) (b) of the Constitution.
It should, be noted, additionally, that the Nigerian Constitution is patterned after the United States Constitution, almost lock, stock and barrel. According to the Twenty-Second Amendment of the US Constitution (1951), “No person shall be elected to the office of the President more than twice…” Here again, the operative word is ‘elected’. For the benefit of doubt, the Twenty-second Amendment elucidates: “…and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once….”
The Twenty-Second Amendment was sequel to, and was a correction of, the situation in which President Franklin Delano Roosevelt remained President of the United States America from 1933 to 1945, a period of over twelve years, in contravention of the two-term tradition established since the days of George Washington. By the terms of the Twenty-Second Amendment, Presidents are limited to two terms (see also Section 137 (1) (b) of the 1999 Constitution) or, if they have served at least two years of a previous President’s term, to one term.
We should consider against the foregoing background the fact that President Goodluck Jonathan, apart from having been elected to the office of President only once, was sworn in on May 6, 2010, to replace his boss, who had spent almost three years of his four-year term (2007-2011). The period (i.e. the unexhausted term of Yar’Adua’s tenure) which Dr. Jonathan spent in office as a ‘constitutional’ President (i.e. under the provisions of Section 146 of the 1999 Constitution), in contradistinction to a ‘popular’ (i.e. elected) President, was one year and twenty-three days, not two years! In view of the similarity if not the rum identity of the Nigerian and U.S. Constitutions, the explicit and irrefragable provisions of the latter’s Twenty-Second Amendment should have a binding, or at least, a persuasive effect, on the construction of Sections 135 (2) (a) and 137 (1) (b) of the 1999 Constitution.
Having regard to the foregoing hard facts, the arguments, often slathered in jingoistic sentiments, that President Jonathan had been sworn in on two previous occasions as President or that he was once acting president, then President (after the death of Yar’Adua) and now President after being popularly elected to that office, is non-sequitur, being simplistic, sophistic, irrelevant and antithetical to the provisions of the 1999 Constitution. The proponents of these arguments may be asking a valid question if it is whether President Jonathan, in view of his performance in office in the past several months, is re-electable, come 2015. But that would be a personal opinion, not a legal or constitutional matter. And the answer to the “valid” question would lie with the electorate!
• Chris Akiri is a Barrister-at-Law in Lagos.