By Onikepo Braithwaite
Legislative Angels
I’m beginning to think that even if angels draft the Nigerian Constitution and all the laws in the country, Politicians and their Counsel will still go to court for interpretations, no matter how clear and unambiguous the angelic provisions are, because of their own selfish interests. And, even if all Judicial Officers were angels too, all losers in litigation would still twist and question court judgements, not only Politicians, but even Senior Lawyers too, when decisions do not appear to favour them or their clients.
For the record, when I examine/analyse judgements, court processes or documents, I need not conduct interviews with anyone, whether or not they are Counsel in the cases, as it is the contents of the documents that are relevant; and it is more than trite that, unless it can be proven that documents were made under duress, such as a confessional statement of an accused person given as a result of torture, the case and documents speak clearly for themselves – “Res Ipsa Loquitur”. A judgement is always preceded with the facts of the case, while a ruling is always preceded with the reason for the interim/interlocutory application; arguments and the rationale for decisions, are also stated. It is unhelpful to challenge court decisions, not based on law, but on the manipulation of law and facts, baseless personal sentiments, speculation and twisted hypotheses, as people, including Lawyers, appear to do regularly these days; this simply creates suspicion in the legal process where there shouldn’t be, and brings it into disrepute unnecessarily.
Room for Confusion
Be that as it may, unfortunately, the room for challenge and chaos is sometimes aided by the unclear provisions of the law. For example, the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) has left enough room for confusion and manipulation.
Last week, I watched Channels TV’s Politics Today, and a couple of times, part of the conversation was whether former President Goodluck Jonathan, GCFR is eligible to run for President again and be elected, having completed late President Umaru Yar’Adua, GCFR’s term upon his death (see Section 146(1) of the Constitution), and was subsequently elected as President in the 2011 election, thereby serving a total of 5 years and 23 days so far, meaning that if he is elected again and wins, he will serve a total of 9 years and 23 days, over 1 year more than the 8 years provided for 2 terms of office – see Sections 135(2) & 180(2) of the Constitution for President and Governor respectively.
Comparing Apples to Oranges
The issue of Governor Lucky Aiyedatiwa who completed Arakunrin Oluwarotimi Akeredolu, CON, SAN’s (Aketi) tenure upon his death in December 2023, and his subsequent election in 2024, was also mentioned on the Channels TV’s said programme. Comparing Governor Aiyedatiwa and President Jonathan in a sense, is like comparing apples to oranges, because even though they are both fruits, they are different.
Sections 137(3) & 182(3) of the Constitution which are two of the provisions relevant to this discourse, came into effect by virtue of the Fourth Alteration No. 16 to the Constitution of 2017. These provisions state that a person who was sworn in to complete the term of the President or Governor respectively, can only be subsequently elected into that position for one term. The difference is that, while the Fourth Alteration came into effect about six years before Deputy Governor Aiyedatiwa assumed Aketi’s position as Governor in 2023, it took effect about seven years after Vice President Jonathan took over as President in 2010. The issue of retrospectivity, isn’t applicable to Governor Aiyedatiwa, as it is to President Jonathan.
Retrospective/Retroactive Laws: Aiyedatiwa vs Jonathan
On the face of it, it appears clear as a bell, that by virtue of Section 182(3) of the Constitution, Governor Aiyedatiwa is ineligible to run for the office of Governor again. But, is that really the case?
A retrospective/retroactive law “attaches new consequences for the future, to an event that took place before the statute was enacted”, or one that operates backward. In Adesanoye & Ors v Adewole & Anor (2000) LPELR-142(SC) per Samson Odemwingie Uwaifo, JSC, the Supreme Court named three types of retrospective statutes including “statutes that attach prejudicial consequences to a prior event” – such as what Section 137(3) of the Constitution appears to do to President Jonathan. The Apex Court went on to hold that a retrospective law isn’t necessarily unconstitutional, but, it should be stated in clear terms that a law is retrospective. This principle was well laid down in Afolabi & Ors v Governor of Oyo State & Ors (1985) LPELR-196(SC) per Kayode Eso, JSC where the Supreme Court held thus: “…. retrospective legislation that it is – “contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.”…. retrospectivity….deems (and deems is used advisedly) a thing to be what it is not. It is a make belief. It is false. It is repugnant to law….It is a fundamental rule of English law (I make bold to say – also of our 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 arises by necessary and distinct implication”. Section 2(2) of the Interpretation Act 2004 (IA) provides that where the date a statute comes into force isn’t stated, it will take effect either the day it was made or enacted. Section 137(3) doesn’t state that it is retrospective, so, would it be fair to maintain that it is applicable to President Jonathan? I think not; it is even stated beside the provision, that it is inserted by the Fourth Alteration of Section 137 No. 16 of 2017. So, it is safe to conclude that it came into force in 2017.
Having retrospective/retroactive laws, brings back memories of the military days. But, take for instance, the famous Decree No. 57 of 1977 on (Foreign) Exchange Control (Anti-Sabotage), it stated clearly in Section 1(1) that the Decree applied to actions carried out, even though before the commencement of the Decree in 1977, but not before July 29, 1975. A retrospective decree promulgated in 1977, with a commencement date of July 29, 1975.
Contradiction between Constitutional Provisions: Jonathan and Aiyedatiwa
The second part of the argument, concerns President Jonathan and Governor Aiyedatiwa. That because they both completed their Principals’ terms and were subsequently elected to their positions as President and Governor respectively, they are ineligible to be elected to those positions a second time.
Sections 137(1)(b) & 182 (1)(b) of the Constitution, disqualify only a person who has been elected twice into the office of President or Governor respectively. Neither of the two parties have been elected twice; President Jonathan was elected only once in 2011, and Governor Aiyedatiwa has only been elected once in 2024. According to Sections 137(1)(b) & 182(1)(b) of the Constitution, they still have one more bite of the cherry. This position was upheld by the 2013 decision of the FCT High Court in Cyriacus Njoku & Ors v PDP & Ors per Oniyangi J. where the court held that President Jonathan was only serving his first term (2011-2015) and he was free to seek re-election under the sponsorship of the PDP or any other party in the 2015 election (second term). The court recognised President Jonathan’s right to be elected twice, and this right would obviously be applicable to Governor Aiyedatiwa as well.
It is trite that, unless one provision in the Constitution is made subject to another, they both have equal standing. The bindingness of the Constitution on all in Nigeria; and, the supremacy of its provisions over all other laws is clear, but it doesn’t appear to apply within the Constitution – see Section 1(1) & (3) thereof. It therefore appears that, Sections 137(1)(b) & 182(1)(b) contradict 137(3) & 182(3) of the Constitution. While the former allows President Jonathan and Governor Aiyedatiwa to be elected twice, regardless of whether they completed anybody’s term, the latter does not.
If the intention of the Legislature was to ensure that no one serves in such executive positions for more than eight years in total, or that a person who completes the term of another can only be elected once so that such person doesn’t end up serving for more than 8 years, Sections 137(3) & 182(3) should have inserted a proviso such as “Irrespective or Regardless of Section 137(1)(b) above”, and in the case of Governor, “Section 182(1)(b) above”, so that it is stated without contradiction that such persons who complete the terms of their Principals, are only eligible to be elected once.
Completing someone’s term, cannot be equated with election – it isn’t the same thing. Deputies are selected by their Principals to join their tickets; they don’t participate in the Primaries, like other aspirants who seek to run for office. They are selected/nominated by their Principals, after the Primaries have been won – see Sections 142(1) & 187(1) of the Constitution.
Conclusion
As things stand now, it is obvious that Sections 137(3) & 182(3) of the Constitution require amendment. Unless the Supreme Court reverses the Njoku decision, President Jonathan and Governor Aiyedatiwa can argue that, on the strength of Sections 137(1)(b), 182(1)(b) of the Constitution and the Njoku decision, they are eligible to be elected one more time, while those against them will simply rely on Sections 137(3) & 182(3) thereof, to maintain that they are ineligible.
In a society like ours, that has a penchant for challenging many things, many times for nonsensical and selfish reasons, where even angelic interventions will most likely be challenged too (I believe that President Obasanjo was once quoted to have said that, even if angels conducted Nigeria’s elections, they would still be challenged), the Legislature must go the extra mile to ensure that the laws enacted have all the elements of good laws – that they are clear, unambiguous, free from contradiction, fair, reasonable, not repugnant or draconian and protect the fundamental rights of citizens.
A pertinent question to ask however is, is it worth sacrificing one’s dignity to answer a desperate call to attempt to salvage what may very well be for now, a sinking ship, when one was wrongly and previously overlooked for others when it could have mattered? Those who may have been treated unfairly a few years ago, are suddenly being declared to be ‘the best thing after sliced bread’, now that there is a crisis and possibly, no viable or strong enough options within their party.
Onikepo.braithwaite@thisdaylive.com
