Nigeria: President Jonathan, 2015 and eligibility question: Lessons from America
By Umar Ardo, Ph.D
In my view, notwithstanding the view expressed by Prof. Ben Nwabueze, the major challenge facing President Goodluck Jonathan with regards to the 2015 presidential election, more than his electability, is his eligibility. Given the provisions of the constitution and the judgments of the Supreme Court on the matter, I see a clear
constitutional impediment against the President in contesting another 4-year term in 2015 without a constitutional amendment or an affirmative Supreme Court judgment. This was a Vice President sworn-in as substantive President of the country on 6th May, 2010, as a result of the death of a President. In this new capacity, he appointed his Vice President, thus forming a distinct regime of his own. He then re-contested in his individual right and won and was sworn-in for another 4-year term on May 29, 2011. By the end of the term in 2015, he would be 5 years 23 days as substantive President. The constitution of the country has stipulated two terms of 4-year each, making for a maximum of 8 years tenure, for a President – and a Governor -, and the Supreme Court ruled that these 8 years cannot be extended even for a day.
This then begs the question – can President Jonathan, under the circumstance, still be eligible for another 4-year term in 2015 seeing that, if he wins, by the end of that term in 2019 he would have self-succeeded himself in office as president for a period exceeding the maximum of 8 years tenure provided for by the constitution? Undoubtedly, posing this question is not only germane but is inescapable. Getting a judicial answer to this question from the Supreme Court is basic if we are to improve and advance the cause of constitutional democracy and rule of law in Nigeria. To close our eyes to this and pretend that the coast is clear for the President to contest 2015 is playing the ostrich to an indispensable constitutional matter. This will be doing grave injury to our system.
To avoid this, it will do well to apply international best practices standard in public affairs by drawing object lessons from mature democracies of the world. The best democracy suitable to us for guidance is naturally that of the USA whose presidential system of government we adopted. A cursory look at American democracy will reveal a co-relation between the very position of President Jonathan vis-à-vis his eligibility or otherwise in 2015 and what transpired in the USA in time past and how the American system handled it.
When America declared her independence and enacted for herself a constitution that adopted a Presidential System of Government, many salient issues were not netted by the letter of the constitution. Even those that were specifically captured, many had varying and ambiguous interpretations. But over time, through practical applications by the operators of the constitution, certain fundamental matters gained constitutional recognition or clarity by way of constitution amendments. Three of these standout clearly: – Term limit; Succession of Vice President to President in the event of vacancy; and Eligibility of a Vice President who succeeded a president to contest twice in his own right. Instructively, the Nigerian Constitution is ab initio very clear on the first two, but silent on the third.
Very important to us in relation to the problem at hand is principally the third issue. When America wrote her constitution, it had no term limit for the President. Article 11 (S.1) simply states that the President “shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same term, …”. The constitution did not limit how many ‘terms of four years’ a person was entitled to. It is the precedence set by the presidents in office over time that conventionally limited the 4-year term to two tenures as we know it today. However, this convention was broken when the 32nd President, FD Roosevelt, contested for third and fourth terms and died in office in 1945. His successor, Vice President Harry Truman, indicated after winning election of his own in 1949 that he was likely to contest again in 1953 for a second time.
Harry Truman was not the first Vice President of America to succeed office as President on account of the death of a President; he was the 7th. But like the presidents before Roosevelt who set the precedence of two tenures, the six Vice Presidents who succeeded office on account of the death of a President also set the precedence of not contesting for more than once (some did not contest even once). They all became statesmen and stepped down their personal ambitions for the higher interest of their country. But when President Truman showed he wanted to re-contest twice it created serious political upheavals in the country. Seeing the danger of allowing both an upended tenure of office and an incumbent who became president on account of vacancy to contest more than once, Congress amended the Constitution to resolve the two issues once and for all.
Thus, Amendment XX11 of 1951 (S.1) states:
No person shall be elected to the office of President more than
Twice, 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. ….
That solved both problems for America. It is by such statesmanship and sacrifices of their leaders or timely constitutional resolution of such issues, that the USA is able to build and sustain enduring democratic institutions and practices.
If Jonathan were an American President, he would have been eligible to contest in 2015. But as a Nigerian President with a maximum tenure limit of 8 years, it is comprehensible that he is not qualified to contest for another term of 4 years in 2015 without such a constitutional amendment as in the USA. Moreover, it is even more difficult for him with the Supreme Court having made the 8 years inviolable when it declared that:
“The 1999 Constitution has no room for self–succession for a cumulative tenure exceeding eight years. …. It is very clear from the relevant provisions that no person elected under the 1999 constitution can remain in office a day longer than provided, otherwise the intention of the framers of the constitution would be defeated”. And adding pointedly that: “the constitution does not support an interpretation of unbroken term of four years or a term in perpetuity”.
The Supreme Court said cumulative TENURE and not TERM. Yes, every Nigerian, including President Jonathan, has the inalienable right to contest the presidency of the country for a maximum of two terms; but we must all have to qualify to contest. There are many bases to disqualify someone from contesting a 4-year term as President. Given that our laws have yet to provide for fractional term in office other than 4 years, it is elementary logic to reason that a Nigerian with certain number of years to his/her credit as President is invariably ineligible of contesting the presidency of the country if it will exceed a cumulative tenure of 8 years. He/she is simply not qualified! President Jonathan will have 5 years 23 days to his credit as Nigerian President by 29th May, 2015. He is simply not eligible to contest a 4-year term as president again. In fact, we even amended our constitution to further give effect to the inviolability of the 8 years tenure. To my mind, that was the essence of amending Section 135 and 180 of the constitution.
Thus, allowing him to contest as it is now will only set a dangerous precedence in motion for misuse by unscrupulous politicians to perpetuate their parties in power, and even elongate beyond 8 years the tenure of their cronies as President. What could happen is that an incumbent president would resign from office in say the 3rd year of his 2nd term in office to allow his Vice President to take over in accordance to the provision of the constitution. The new President now would contest two consecutive terms in office and would also do same for his running mate to take over the baton. This can continue in finitum. In fact, so long as it is an expedient option, it would remain a portend danger to our democratization process.
Also at the state level, presently, it will basically mean that Gov. Gaidam of Yobe State, who would have spent about 7 years as governor by 2015, will also be entitled to another 4 years in office. So is Governor Yero of Kaduna State who by 2015 would still have 8 clear years to govern the state. Stretching it further, both Governors Boni Haruna of Adamawa state and Rotimi Amechie of Rivers state may well by 2015 have another constitutionally guaranteed one more term of 4 years to run as governors of their respective states.
Therefore, these calls on President Jonathan to contest the 2015 presidential elections without first amending the constitution or getting an affirmative declaration from the Supreme Court will only open other vistas of constitutional issues that would create a floodgate of political crises. The solution to this lies with President Jonathan to set the right precedence by declaring not to contest in 2015, or in the alternative with the legislature by amending the constitution, as in the USA. However, in the absence of both President Jonathan setting the right precedence and of a constitutional amendment, then the only alternative left is for the Supreme Court to adjudicate on the matter, as in the case of the 5 PDP Governors, by determining whether or not the President can contest again. It is against this backdrop that I consider the institution of a judicial action way up to the Apex Court as necessary.
Umar Ardo, Ph.D