Can Atiku also run in 2015?

As 2015 comes closer, the question on the lips of many educated Nigerians is whether or not, Dr Goodluck Ebele Jonathan, is eligible to contest. 

This article will not seek to answer that question but will merely point out a few facts and highlight certain ideas.

137. (1) A person shall not be qualified for election to the office of President if (b) he has been elected to such office at any two previous elections.

The 1999 Constitution of the Federal Republic of Nigeria states that a person cannot be elected into the office of the President more than twice. That is, some will say he can only be sworn in twice. As legal minds, the principles of interpretation quickly come to mind: the literal rule – has the president taken the oath twice? Yes… therefore he is not to be permitted to take a third oath, some will say.

However, it is necessary to point out that the constitution also states that to be president you must be elected. There is no provision for the election of the vice-president. The ticket is that of the president, and to further show the seeming irrelevance of the office, in the event of the death of the vice-president, the president will nominate a replacement subject to the approval of the house.

141. There shall be for the Federation a Vice-President.

142. (1) In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid

This means that the constitution knowingly or unknowingly envisions a situation where the vice-president has gone through no election of their own and is only a candidate nominated and if the president of such a situation were to also die or become unable to carry out his duties then the vice-president who replaces him in a sense will be an unelected president. This in itself speaks against the spirit of democracy.

The golden rule is that the words of a statute must prima facie be given their ordinary meaning it will cause interpretation to be that which the law aimed to achieve. We can agree that the constitution is essentially seeking to avoid the unfavourable situation of an ungoverned nation. According to the doctrine of necessity, that which is needed must be done,the federation must have a President.

President Jonathan has found himself in a very peculiar situation, one that in my opinion was not in the foresight of those who drafted the constitution.

As a vice-president he was duly elected as a result of his nomination but on the unfortunate passing of President Umaru Musa Yar’adua, he was sworn in to complete the term of his predecessor. Was he duly elected? The debate will result in further confusion. If there is only one election for one seat, that is the office of the President, it would mean that all Vice Presidents have been elected under the office of the President and therefore will be unable to contest as President after two terms. For example it will not be possible for former Vice President Atiku to contest for President in 2015 either.

Since no one seems to question Atiku’s eligibility, it seems preposterous to question that of President Jonathan. He has only been elected once before and is therefore permitted to be elected a second time as per the constitution.

It is also necessary to point out, no court of law can yet answer this burning question. Because the question remains “Can President Goodluck Jonathan contest in the 2015 election?” For which the answer is Yes. He can contest because his participation is not against any law. There is no cause of action where the outcome is speculative and uncertain. The result of every election is either a win or loss. If he wins and is to be sworn in for the third time, then there may be cause of action and only then can the courts step in and give true meaning to the words of the constitution.

The argument unfolds further when the issue of his impending election and if elected will result in a total tenure of nine years and 23 days as he was sworn in on the 6th of May 2010 and was sworn in again on the 29th of May 2011. Another four-year tenure from the 29th of May 2015 will mean he will serve a period that exceeds the provisions of section 135(2) which states:

“Subject to 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 (a) in the case of a person first elected as President under this Constitution, he took the Oath of Allegiance and the oath of office.

This section above further begs the question of whether the framers of the constitution ever anticipated such a situation. In my humble opinion, they did not. This calls for an amendment of the constitution to cover even the least thought-of possibilities. The same constitution only limits a person from being “elected” into the same office twice but makes no mention of a situation where an eight-year tenure is exceeded.

As decided on by the court in a suit filed by concerned citizens, the matter is speculative and has no precedence to assist in the interpretation.

*Atawodi is a Lagos-based lawyer.