The second coming of Goodluck Jonathan, a myth or legal impossibility?
If I were to be asked if President Jonathan can contest the 2023 elections three years ago, I would have answered in the affirmative without thinking. It is a common knowledge that the 1999 Constitution of the Federal Republic of Nigeria as amended allows a person contesting for the office of the presidency, two tenures of four (4) years each. (1) Has this changed? Let us recall that Mr. Jonathan was president from 2010 – 2015, having completed the tenure of Late Umaru Musa Yaradua who died in office on the 5th of May 2010 and went ahead to win the 2011 presidential election. It would thus be correct to state that Jonathan’s first tenure as the elected president of Nigeria was in 2015, as such he was qualified to have contested the 2015 elections which he lost to President Muhammadu Buhari.
As early as January 2020, few months after the 2019 presidential elections, there were speculations that the former president will be making a comeback at the 2023 elections. Did he forget something in Aso Rock, I hear you ask? One of such reports is captured in the Nigerian Guardian Newspaper on 7th January 2020. (2) In the said report, Jonathan’s spokesperson reputed any such claim about his principal and that Mr. Jonathan was yet to make a pronouncement to that effect. A similar report is corroborated by the Daily post on the same day. (3)
More recently in October 2020, there were further reports of groups drumming support for Mr. Jonathan, a man people see as a champion of democracy by conceding defeat during the 2015 elections. Till date, Jonathan is still celebrated for that singular act, though his defeat was a clear sign of rejection by the Nigerian people for failing in some regards - especially in relation to rise in corruption and his handling of the Boko Haram insurgency. This Day daily newspaper reports on the 4th of October 2020 with the following headline(4):
Buhari’s supporters considering Jonathan for 2023 presidential run
It was said that considering the cordial relationship between president Buhari and Jonathan, the former president could be a good choice to meet the aspiration of those clamoring for a southern presidency.
There has however been a twist of event with the alteration of the constitution in 2018. The Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 16) Act 2018 altered section 137 of the constitution by inserting after subsection (2), a new subsection (3). The new sub section provides that:
(3) A person who was sworn-in as President 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. (5)
Going by this alteration, can Goodluck Jonathan contest in the forthcoming presidential election in 2023?
At first sight, one may hastily conclude that Mr. Jonathan is caught up by the restriction since upon the death of Late Yaradua in 2010, he completed the term for which he (Yaradua) was elected and has served one term from 2011-2015.
For a lucid understanding of the implication of the Fourth Alteration (No. 16) Act 2018, there is need to examine briefly the legality of a retrospective legislation.
A retrospective law also referred to as a retroactive law is a law that operates to make criminal or punishable or in any way expressly affects an act done prior to the passing of the law. (6) In most jurisdictions, Nigeria inclusive, statutes prohibit the enactment of a law to have a retroactive effect. Nigeria’s constitution provides that:
“…the National Assembly or a State House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.” (7)
The constitution also provides that:
“No person shall be held guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.” (8)
It should however be stated that the above provisions limiting the enactment and punishment for retrospective laws are in relation to crimes. Despite the above, Nigerian courts have upheld the latin principle lex prospicit non respicit which translates as: the law looks forward, not backward meaning that laws are generally deemed or presumed not to have a retrospective effect. (9) As such in Miscellaneous offences Tribunal v Okoroafor (2001) FWLR (Pt. 81) 1730 at 1756, the Supreme Court stated that no statute shall be construed so as to have a retrospective operation unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication…
Similarly in Hope Democratic Party v Peter Obi & Ors (2011) 18 NWLR (Pt. 1278) 80 at 100, the Supreme Court dismissed the appeal of the appellant and held that:
“…a law yet to be in existence cannot have effect on the rights and or liabilities existing prior to its creation, commencement…”
There are however exceptions to the non application of a retrospective legislation. Firstly, where the statute or amendment affects procedural matters and secondly where a retrospective effect of the law is clearly intended from the words of the statute.
So can Jonathan make a comeback?
The Fourth Alteration (No. 16) Act came into force in June 2018, eight years after Mr. Jonathan took over from Yaradua as such, his rights to contest for a second term in accordance with section 137 (1) 1999 CFRN as amended are intact. The amendment succeeds the former president’s completion of Yaradua’s tenure and so does not apply to him. This is in line with the latin principle lex prospicit non respicit and decided cases of the Supreme Court. From the wordings of the The Fourth Alteration (No. 16) Act 2018, it cannot be seen that a retrospective effect of the law was intended.
On a final note, the former president is not precluded by law from contesting in future presidential elections. We will have to wait for another “Yaradua Jonathan scenario” to test the potency of the law. It remains unclear whether Jonathan will make use of this window of opportunity to redeem himself in a possible but not so certain second coming.
References
- See section 137(1) 1999 CFRN as amended
- https://m.guardian.ng/news/jonathan-yet-to-speak-on-contesting-2023-presidency-spokesman/
- https://dailypost.ng/2020/01/07/2023-goodluck-jonathan-speaks-on-contesting-next-presidential-election/
- https://www.thisdaylive.com/index.php/2020/10/04/buharis-supporters-considering-jonathan-for-2023-presidential-run/
- CFRN, 1999 (Fourth Alteration, No. 16) Act, 2018
- https://www.merriam-webster.com/dictionary/retroactive%20law
- Section 4(9) CFRN as amended
- Section 36(8) Ibid
- https://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-1287#:~:text=%E2%80%9CThe%20law%20looks%20forward%2C%20not,not%20to%20have%20retroactive%20...
