INTRODUCTION

 

In the past few days, the Media has been awash with arguments on whether or not the President, Goodluck Ebele Jonathan, is entitled, ex debito justitae, to contest for election in 2015. While some arguments have been constructive, others have been merely emotive, hysterical, given to lachrymal effusion and at best, laden with patent and latent fallacies. Let us examine the relevant provisions of the Constitution to see if, ex facie, the President does have the right to vie for the 2015 Presidential  election, or if his completion of the unexpired residue of Late President Umaru Yar’adua’s tenure has robbed him of his right of two tenures of four years each,  aggregating eight years in all.

 

Section 135 provides as follows:

 

(1) Subject to the provisions of this Constitution, a person shall hold the office of President until -

 

(a) when his successor in office takes the oath of that office;

 

(b) he dies whilst holding such office; or

 

(c) the date when his resignation from office takes effect; or

 

(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution.

 

(2) 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 -

 

(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; and

 

(b) 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. (Underlining ours for emphasis).

 

IMPORT OF THE ABOVE PROVISIONS

 

The above provisions of the Constitution are crystal clear. Any person who is sworn in to assume the position of the President of the Federal Republic of Nigeria can only vacate such office after four years, where his tenure of office has not expired, and where the office does not become vacate by reason of death,  resignation, impeachment, incapacitation or the President being declared lunatic, etc. This section strictly envisages a situation where the Oath of Allegiance and Oath of Office are administered to, and taken by the President-elect or a situation where the Vice-president-elect takes over the office of the President where the President dies before or after taking the Oath of Office. In the case of BRIGADIER-GENERAL BUBA MARWA V REAR ADMIRAL MURTALA NYAKO (UNREPORTED, APPEAL NO. SC/141/2011), the apex court was emphatic that the cumulative tenure of a Governor or President under the Constitution is eight years and not a day more. It could be less if the President or Governor dies in office, is impeached, resigns, or becomes incapacitated.  

 

The provisions of Section 135 (2) (b) alone seem to have had the frenzied effects on the proponents of the theory that President Jonathan is not eligible to vie for office again in 2015. We submit that to understand the provisions of the Constitution, such provisions must be read as a whole. Thus, anyone who bases the fulcrum of his argument on a section of the Constitution without doing so much as reading the provisions of the Constitution as a whole will find himself caught in an inextricable labyrinth of fallacies. That the Constitution should be read as a whole has been given judicial imprimatur in a plethora of cases. See the cases of  Action Congress v. I.N.E.C. (2007) All Fwlr (Pt. 378) Page 1012 At 1037; Paras A – B; Buhari v. Obasanjo (2005) ALL FWLR (Pt. 273) 1, (2005) 13 NWLR (Pt. 941) 1; Awolowo v. Shagari (1979) 6 - 9 SC 51, (2001) FWLR (Pt. 73) 53; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Chime v. Ude (1996) 7 NWLR (Pt. 465) 379.

 

For us to come to a just and reasonable conclusion as to whether or not, President Jonathan is, constitutionally entitled to vie for the 2015 presidential election, we shall critically examine other provisions of the Constitution, vis-à-vis authorities which will aid us in our discovery.

 

First, we shall examine the provisions of Section 137 (1) (b) of the Constitution. This Section provides as follows:

 

 (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; (Underlining ours, for emphasis).

 

Gleaning from the above unambiguous provisions, it is not difficult to understand that a person can only be barred from vying for the office of the President of the Federal Republic of Nigeria IF AND ONLY IF he has been “ELECTED TO SUCH OFFICE” at any “TWO PREVIOUS ELECTIONS”. Now, we question: has Goodluck Ebele Jonathan been ELECTED into office as President on “TWO PREVIOUS ELECTIONS”? The answer is a resounding “No”! We place emphasis on the words used by the Constitution itself because we have since stumbled on certain fallacious arguments from some quarters, that the office of the President and that of the Vice-President are one and the same. Nothing can be farther from the truth. The authority gleefully cited to support the proponents’ otherwise illogical theory is the provisions of Section 142 of the Constitution, which Section provides as follows:

 

(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

.

It is pertinent to note that even this Section of the Constitution will not avail any person who states that the office of the President and that of the Vice President is one and same. The above section was enacted merely for the purpose of an election only and nothing more. Once the election is over, the umbilical cord of the apparently Siamese twins is severed. The purpose of a Vice Presidential Candidate was, as some have argued, to provide a “spare tyre” (Vice President) in the event that the main tyre bursts. However, the spare tyre, we must emphases remains separate from the main active tyre (President). Furthermore, the same provisions refer to “the candidate” chosen by the President being “duly elected to the office of the Vice President” not “President”. More so, the word 'office' under Section 318 of the Constitution is defined thus: 'Office' when used with reference to the validity of an election means any office the appointment of which is by election under this Constitution’. See also, OBI V. INEC (2007) WRN (VOL. 45) 1 AT 107, LINES 10 - 15 (SC). Consequently, Goodluck Ebele Jonathan holding the unexpired tenure of the office of late President Umaru Yar’adua was merely enjoying an “appointment” which was not by “election”. Come to think of it, did Nigerians troop out to the polls in May, 2010, when Yar’adua died, to “elect” Goodluck Ebele Jonathan into office of President? The answer again, is a re-sounding “No”!.

 

DIFFERNCE BETWWEN “THE PRESIDENCY” AND “OFFICE OF THE PRESIDENT”

 

Thus, we concede, that for the purpose of the institution called “the Presidency”, the office of the President and that of the Vice-president are the same. However, for the purpose of exercising the powers of the “Office of the President” itself, the President is unique, different and distinct; so is the Vice-President. The wordings above expressly provide for “Office of the President” and not “Office of the Presidency”. Again, the words used to qualify the “Office of the President” in Section 137(1) (b) above, is unambiguous. The provision reads, “if he has been elected to SUCH office”. Furthermore, Section 130 separately creates the office of the President, while Section 141 of the Constitution expressly creates the distinct office of the Vice President. This position that the offices of the President and Vice President are separate is reinforced by the Supreme Court, in the case of ATTORNEY-GENERAL FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT.1041) PAGE 188 AT PAGES 188-189, PARAS. G-B, where the apex court held, per Aderemi, J.S.C, as follows:

 

 “That the Constitution intends the Vice President to be an associate of the President does not go beyond the time the election was conducted and they have won. Once the election is over, both of them, are at liberty to map out their independent fortunes."

 

We submit further, that with regards to the exercise of presidential powers, the Vice-president under our present Constitution cannot be said to be the President who wields enormous executive powers, nor is the Vice President’s  office radically different from the office of Ministers appointed by the President himself. The only difference between the Vice-President and the Ministers is security of tenure. Our position is amplified by the lucid provisions of Section 148 of the1999 Constitution which provides, thus:

 

(1) The President may, in his discretion, assign to the Vice-President or any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of government.

 

(2) The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of -

 

(a) determining the general direction of domestic and foreign policies of the Government of the Federation;

 

(b) co-ordinating the activities of the President, the Vice-President and the Ministers of the Government of the Federation in the discharge of their executive responsibilities; and

 

(c) advising the President generally in discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.

 

Evidently directing its learned mind towards the above provisions of the Constitution, the Supreme Court of Nigeria  dilated, in the case of THE ATTORNEY - GENERAL, FEDERATION V. ABUBAKAR (2007) ALL FWLR (PT. 375) Page 405 AT 462, PARAS. E - G,  per Akintan, JSC, thus:

 

"While the Constitution specifically created the offices of both the President and that of the Vice President, it went ahead to vest the executive powers of the Federation in only the President. But the President is required to exercise the executive powers conferred on him either directly or through the Vice President and ministers of the government of the Federation or officers in the public service of the Federation. Unlike in the United States of America and India where their respective Constitutions assign specific roles to the Vice President, the Nigeria Constitution does not assign any specific role to the Vice President. The role which the Nigerian Vice President is to perform is limited to what the President assigns to him just like those of the ministers who are appointed by the President subject to confirmation by Senate and may be removed by the President at will."

 

Going by the foregoing provision and eloquent pronouncement by the highest court of the land, it is hard to decipher where the proponents of the theory that the President is currently serving out his second term of office, all because he merely completed the unexpired residue of the office of the late President Umaru Musa Yar’dua, got their idea from, especially considering the fact, that there is no where in the Constitution where the mention of “the President” translates to both President and Vice President.

 

Secondly, we submit respectfully, that the issue of President Jonathan being in his second term because he has already done one term after the death of the former President, Yar’adua, or that because they ran a joint ticket, it means the Vice President was at all material times, the President, will not stand the acid test of judicial scrutiny or intellectual analysis. The reason is that, Section 137 (2) (b) which the proponents of the theory rely on, stares back at them with its clear and unambiguous provisions. The Section provides:

 

 (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; (Underlining ours, for emphasis).

  

QUESTIONS THAT AGITATE THE MIND

 

The agitating questions that such proponents ought to answer are: “Was Jonathan Goodluck ever elected to the office of the President of Nigeria on two previous occasions”? “Was Jonathan Goodluck elected as President, or a Vice-President in the year 2007?” If their answer is “no”, that is, that he was not elected President in 2007, then, the question that necessarily follows is “why all these ruckus and mischief”?. If their answer is “yes”, that is, that he was so elected as President of Nigeria in 2007, the questions are, “on what legal or factual foundation do they build such strange theory”? “Where is their authority for so holding”?. The only authority that the proponents of the theory may readily cling to, is itself straw-like and cannot keep them afloat on these clear legal waters. This is the provision of Section 135(2A) (as altered by the First Amendment, 2011). To be sure, this provision cannot avail them as it specifically deals with a “re-run election” and not whether the person in question did part of the unexpired tenure of another. This Section provides:

 

“In the determination of the four year term, where a re-run election has taken place and the person earlier sworn in wins the re-run election, the time spent in the office before the date the election was annulled, shall be taken into account”

 

For the avoidance of doubt, President Jonathan did not undergo any “re-run” election to succeed late Yar’adua. He succeeded him merely upon the invocation of the “Doctrine of Necessity” by the Senate of the Federal Republic of Nigeria after the said demise of the great patriot- President Umaru Yar’dua.

 

Thirdly, if the proponents of the theory that since the President has served out the remainder of late President Yar’adua’s  tenure, he should be deemed to have served a full term are allowed their illogicality, under what Constitutional provisions  will those points and theories be effected, when the Constitution under Section 135 (2) expressly provides that:

 

(2) 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 -

 

(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; (Underlining our, for emphasis).

 

Now, assuming, without conceding, that President Jonathan actually did complete the tenure of former President Yar’adua and consequently, the served tenure should be taken into account while calculating his subsequent terms, under what Constitutional provisions will they carry out their calculations? When was President Jonathan’s ‘first term’ supposed to expire from the date he assumed office from Yar’adua? Should the Constitution NOT have been amended consequentially, to make the term of the President’s tenure end four years after he assumed the office of the new President of the country, following the death of  former President Yar’adua? Should we have read nine months in place of four years into the Constitution? What happens to the conduct of the 2011 elections? Are they valid or null and void? These are gargantuan challenges thrown up by proponents of abridgement of Goodluck Ebele Jonathan’s eight years to approximately five years. Surely, the Constitution and the Courts abhours absurdities. See the cases of  Smith v. Great Western Railway (1877) 3 App. Cas. 166; A.O. Ejoh v. Inspector General of Police 1963 1 All N.L.R. 250, 260; Holmes vs Jennison 14 Pet. 540, 10 U.S. Sup. Ct Reports 579, L.Ed first series; Omin III v. Gov., Cross River State (2007) Vol. 41 WRN 158 at 178, lines. 25 - 35 (CA); PDP and 4 Ors. v. INEC and 4 Ors. (2001) 1 WRN 1; (1999) 11 NWLR (Pt. 626) 200; (1999) 7 SCNJ 297 at 332; Udoh v. O.H.M.B. (1993) NWLR (Pt.304),P.13, Paras.B-C; Duke v. Global Excellence Comm. Ltd. [2007] 5 N.W.L.R. (Pt. 1026) 81 at 116 - 117 Paras. H - C (CA).

 

Since the above questions cannot be answered without doing violence to the spirit and letters of the Constitution, we submit most unequivocally and firmly, that, there is nothing in the provision which expressly, or by way of implication, indent on the right of President Jonathan to seek a further term of four years. It is his Constitutional right to so do, if he so desires.

 

Finally, we submit that if the framers of the Constitution had thought that the time the Vice President takes over as President should be taken into account for the purpose of subsequent assumption of office, they would have said so most unequivocally and failing which, the Legislature would have amended the Constitution to so reflect. The principle in law is that the express mention of one thing is the total exclusion of others. This is encapsulated in the Latin maxim, expressio unius est exclusio alterius. On this, See the cases of A-G. of Bendel State v. Aideyan (1989) 4 NWLR. (Pt. 118) 646; Ogbuanyinya v. Okudo (1979) 6-9 Sc. 32; Military Gov. of Ondo State v. Adewunmi (1988) 3 NWLR. (Pt.82);; Ogbunyiya v. Okudo (1979) 6-9 SC 32, (2001) FWLR (Pt. 72) 1987; Abacha v. Fawehinmi (2000) FWLR (Pt. 4) 533, (2000) 3 SCNJ 401; Udoh v. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt. 2) 436; Nawa v. Att., Gen. Cross Rivers State (2008) ALL FWLR (Pt. 401) 807 at 843, paras. F - H (CA.)

 

THE UINTED STATES EXAMPLE

 

This is more so as the United States of America wherefrom we borrowed a lot with regards to our Federal Constitution expressly provides under Section 1 of the Twenty-second Amendment (Amendment XXII) to Constitution of the United States of America, as follows:

 

"No person shall be elected to the office of the 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 the President more than once"

 

Thus, in America, any person who acts in place of the President for at least two years, can vie for the Presidency (as President) only once thereafter. To this end, it is to be noted that George H.W. Bush was elected President of the United States of America in 1988, after serving two full terms as Vice President. But for the fact that he lost his second term election, he would have spent an amazing total of 16 years at the White House even with the above provisions of their rigid Constitution. It follows, mutatis mutandis, that the office of the Vice President and that of the President are distinct and separate, just as their tenures are. Similarly, the fact, that the then Vice President Jonathan served out the remainder of the President Yar’adua’s tenure, does not, ipso facto, bar the then Vice President, who is now the current President from contesting for President for two terms; nor does the Constitution take into account, President Yar’duas unexpired remaining time, served out by then Vice President Jonathan.

 

The only tenure restriction that is meant to have effect according to the entire provisions of the 1999 Constitution is that of a President duly elected and not that of the Vice President (who has not been caught by the Constitutional provisions regarding serving out the remainder of the tenure of the former President). For example, the Constitutional provisions on tenure only apply to elective (but executive) offices, held for two terms certain and nothing more. Thus, where the Vice President has served two terms, he will not be constitutionally eligible to vie for the office Vice President again for a third term, but he is constitutionally eligible to vie for other elective offices such as those of  the President, Governor, Senator, etc., and enjoy their full tenure. So also, is a Governor who has been in the office of a Governor for eight years. He can only thereafter, constitutionally vie for other elective positions like Vice President, President, and Senator, etc.  Each of them can have the office for an aggregate of eight years, of a term of four years each, and not more.

CONCLUSION

 

In conclusion, going by our above legal, constitutional and case analysis, President Goodluck Ebele Jonathan is eminently qualified and is entitled constitutionally, to vie for a second term of office of the President of the Federal Republic of Nigeria, since the term he served as Vice President and later as President, under the 2007 election, belonged to the late President Umaru Yar’adua. Enough of the politicking. Time for the reality, based on the firma terra of our Corpus Juris.