Ahead of 2023: Ozekhome tackles Falana on Jonathan’s eligibility

From Godwin Tsa, Abuja

As pressure continue to mount on former President Goodluck Jonathan to contest the 2023 presidential election, two renown lawyers in the country have sharply disagreed on his eligibility to run for the presidency.

While human rights lawyer, Femi Falana (SAN) is of the opinion that Jonathan is legally hamstrung to contest for the highest position in the country, his colleague of other inner bar and an activist lawyer, Chief Mike Ozekhome (SAN), argued otherwise insisting that the former president is eligible to return to Aso Rock.

Femi Falana, in his submission on the subject matter argued that former President Goodluck Jonathan cannot contest in the 2023 presidential election.

While citing constitutional provisions barring the ex-president from seeking re-election, Falana said Jonathan, who was Nigerian president between 2010 and 2015, would breach constitutional term limits of two terms of eight years if he runs for the presidency and wins again.

He recalled that Mr Jonathan became the President of Nigeria in 2010 following the sudden death of President Umaru Yar’adua, Yaradua and later contested and won the 2011 presidential election.

Mr Jonathan spent five years in office as President which would make it nine years in office if he contests and wins again, Mr Falana said.

“Dr. Jonathan is disqualified from contesting the 2023 presidential election. The reason is that if he wins the election he will spend an additional term of four years.

“It means that he would spend a cumulative period of nine years as President of Nigeria in utter breach of Section 137 of the Constitution which provides for a maximum two terms of eight years,” Mr Falana said.

He further stated that by virtue of section 137 (3) of the Nigerian constitution, Mr Jonathan cannot seek a re-election to the office of the president having completed the tenure of the late President Yar’adua and sworn in again for a full four-year term in 2011 upon winning the presidential election in his own name.

Section 137 (3) of the Constitution in reference reads: “A person who was sworn in to complete the term for which another person was elected as President shall not be elected to such office for more than a single term.”

But faulting this line of argument, Ozekhome said: “The truth of the matter is that the antagonists of Jonathan running in 2022, in their strange line of argument, are mainly relying on the above section 137(3). They have probably not adverted their minds to sections 141 of the Electoral Act, 2010, as amended, and section 285(13) of the same Fourth Alteration to the 1999 Constitution, as amended, which they are relying on. More revealing is that these antagonists are probably not aware of an extant and subsisting Court of Appeal decision where Jonathan was frontally confronted and challenged before the 2015 presidential election, on the same ground of being ineligible to contest the said 2015 election, having allegedly been elected for two previous terms of office. The section 137(3) being relied upon by the antagonists was signed into law in 2018, three years after Jonathan had left office. Can he be caught in its web retrospectively?

The case in question is CYRIACUS NJOKU V GOODLUCK EBELE JONATHAN (2015) LPELR-244496 (CA). In that case, the Court of Appeal, Abuja Division, held that President Goodluck Jonathan had only taken the oath of office once and therefore upheld his eligibility to contest the then Nigeria’s presidential election slated for March 28, 2015.

The intermediate court held that the oath of office President Jonathan took in 2010 was merely to complete the “unexpired tenure” of late President Umar Yar’Adua, who died while in office as President.

The appeal had been brought before the court by one Cyriacus Njoku, who was challenging the ruling of the High Court of Federal Capital Territory, Abuja, which on March 1, 2013, had dismissed the suit he filed to stop President Jonathan from contesting the 2015 polls.

In a lead judgement delivered by Justice Abubakar Yahaya, the full panel of the court unanimously held that President Jonathan had only spent one term in office as President, going by the provisions of the 1999 Constitution.

President Jonathan had been empowered as acting President on February 9, 2010, following a motion for operation of the “doctrine of necessity” by the Senate, owing to the protracted stay of late President Umaru Yar’Adua in Saudi Arabia on medical grounds.

When President Yar’Adua eventually died on May 5, 2010, Jonathan was sworn in as president to serve the unexpired residue of office of Yar’Adua. Jonathan was later elected President in 2011 for the first time, on his own merit.

However, the court ruled that the oath that Jonathan took in 2010 was merely to complete the unexpired tenure of late Yar’Adua; adding that by virtue of Section 135 (2)(b) of the 1999 Constitution, Jonathan only took his first oath in May, 2011. The Court of Appeal further held that disqualification is through election, not oath taking.

is therefore clear that section 137(3) of the Fourth Alteration to the Constitution took effect from 11th June, 2018, when President Muhammadu Buhari assented to it. Section 137(3) is subject to section 318(4) of the 1999 Constitution which provides that, “the Interpretation Act shall apply for the purposes of interpreting (its) provisions”.

Section 137(3) is one piece of legislation that can be termed retrospective or retroactive legislation.

On retrospectivity of legislation, the apex court, coram Justice Kekere-Ekun, J.S.C, held in the case of SPDC V. ANARO & ORS (2015) LPELR-24750(SC) at (Pp. 64 paras. B), thus:

“There is a general presumption against retrospective legislation. It is presumed that the legislature does not intend injustice or absurdity. Courts therefore lean against giving certain statutes retrospective operation. Generally, statutes are construed as operating only in cases or on facts, which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It was held inter alia, in: Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377 @ 402 F-H that it is a fundamental rule of Nigerian law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or Law; or arises by necessary and distinct implication. See also: Udoh Vs O.H.M.B. (1993) 7 NWLR (Pt.304) 39 @ 149 F – G; Adegbenro Vs Akintola (1963) All NLR 305 @ 308.”