Ex-President Jonathan and the Trojan horse stunt

In what democratic country has an ex-President ever condescended to run again for the presidency years after he left office? And did Jonathan ever consider what would be his fate should he fail to clinch the vote at a time most Nigerians are disenchanted with the All Progressives’ Congress, APC and the Peoples’ Democratic Party, PDP and describe them as the two sides of the same coin – and are frantically building a third force party to dispel the APC and the PDP from governance?

The story we have heard and read in recent times about ex-President Goodluck Jonathan and his “ambition” to try his hand again at the Presidency under the banner of the ruling All Progressives’ Congress, APC is, to put it mildly, very pathetic. In what democratic country has an ex-President ever condescended to run again for the presidency years after he left office? And did Jonathan ever consider what would be his fate should he fail to clinch the vote at a time most Nigerians are disenchanted with the APC and the Peoples’ Democratic Party, PDP and describe them as two sides of the same coin – and are consequently frantically building a third force party to dispossess the APC and the PDP from governance?

I once made a post in Face Book, in which I explained that by right ex-President Jonathan’s place in Africa should be with the likes of Nelson Mandela and appealed to those who desired to rubbish his presidential achievements by luring him to run again for the presidency to leave him alone. I contended that those Northern Nigerian elements buying the APC presidential nomination form for ex-President Jonathan to contest the 2023 presidential election were indeed into a Trojan horse affair, meant to rubbish all Jonathan’s achievements during his tenure as President and possibly placing President Buhari’s “achievements” on a higher pedestal. And I advised Jonathan not to fall into their trap for any reason.

President Jonathan was the first man to congratulate President-elect Muhammadu Buhari as soon as he realized that his People's Democratic Party was losing out on the 2015 presidential election. That feat has remained unprecedented in the political history of Nigeria. In so doing, Jonathan averted the usual post-election violence and bloodshed that normally attended elections in Nigeria and saved the lives of many young Nigerians. Addressing his countrymen and the world afterwards, ex-President Jonathan said that his quest for the presidential office was not equal to the shedding of the blood of any Nigerian. Jonathan told his countrymen and the world that politics in Nigeria should no longer be a matter of do-or-die.

Jonathan forbade law enforcement agencies to parade suspects on the television before they were convicted by the law courts because parading them would amount to a denigration of their fundamental human rights. He took sides with the law which stipulates that a suspect is presumed innocent until he is proved guilty.

Jonathan was the President who finally signed the freedom of information act into law so that Nigerians could hold their elected public office holders responsible for their actions and for how public funds were administered under their watch. These and similar achievements to put Nigeria on the right footing in its frantic search for true democracy endeared Jonathan to the hearts of many distinguished world leaders who regarded him as a frontline democrat and one that ushered the fundamental tenets of democratic rule into Nigeria.

America, Great Britain and many leaders of democratic countries of Africa held him, and still hold him, in very high esteem just as they hold Nelson Mandela who insisted that paying back evil for evil was not the ideal way to deal with the South African whites after the apartheid era.

I wondered why all these carrots were being dangled before Jonathan. In what country have these trap setters seen a one-time President contest again for the presidency years after he left office? And I pleaded with those silent killers to please leave Jonathan alone. His place in Africa should be with the likes of Nelson Mandela and Desmond Tutu. And he knew it, or so I thought. But it looks to me now that Jonathan might just lose it.

Nigerian newspapers did not help matters as those who would gladly rubbish all Jonathan’s achievements as President offered him their Trojan horse appeal and as he seemingly blindly jumped at their bait. According to some prominent Nigerian media, it was not quite 48 hours after disassociating himself from moves by some northern groups to draft him into the 2023 presidential race under the aegis of the ruling All Progressives’ Congress (APC) that Jonathan finally made up his mind to vie for the top post.

On 9 May 2022 when the proposal was first made official, Jonathan had rejected the presidential expression of interest and nomination form bought for him by some people described as nomadic Fulani pastoralists and Almajiri communities. He was quoted as saying he felt insulted by the people who bought the form for him without his consent. But the former President was said to have later made u-turn on the matter.

A dependable source in Jonathan’s camp, who pleaded anonymity, confirmed that the former President had indeed joined the APC formally by registering at his Otuoke Ward in Bayelsa State. The source disclosed that Jonathan was expected to submit his completed APC expression of interest and nomination form bought for him earlier in the week by Fulani groups and pastoralist communities on Thursday, the 26th. According to the source, the former President had secured the support of the required number of APC delegates from across the 36 states and the Federal Capital Territory.

Several bigwigs of the party were also said to have called Jonathan to pledge their loyalty and support. The source had in fact told the News Agency of Nigeria (NAN) late Wednesday the 25th that some influential African leaders had called Jonathan earlier on Monday to advise him to contest the election in the interest of Nigeria. At least three top African leaders called the former President and spoke to him on the matter. They all urged him to run. One of them specifically told him that it didn’t make sense travelling all over Africa settling disputes only to shy away from leadership responsibility in his home country.

Another reminded him of the implication of failing to put the experiences he garnered as a former Nigerian President and as a continental statesman to good use, the source said. But the source did not mention the names of the African leaders who spoke to Jonathan. It rather said some of the African leaders had told Jonathan that Nigeria was passing through challenging times and needed a unifier like him to get things fixed at this time.

A Senior Advocate of Nigeria, Mike Ozekhome, joined the debate on Jonathan’s eligibility to run for the presidency again and insisted that he was pre-eminently, constitutionally, morally and legally qualified to contest the 2023 presidential election. Ozekhome made the assertion in a statement he issued in response to an argument that the former president was disqualified by the constitution. He said Nigeria was a country of one major news item per day. The issue in the polity currently generating national “ruckus, hoopla and bedlam” was the presumed intention of Dr. Goodluck Jonathan to run for the 2023 presidency. It would have mattered, but it did not matter that he had not at the time confirmed the rumour of his planned defection from his opposition PDP under which he was once elected President to the ruling APC party to anyone. Yet, Ozekhome said “they were prepared, as ever, to shave his hair in his absence.”

Ozekhome said he had carefully read the arguments of those who believed that Dr. Goodluck Jonathan was disqualified from contesting the 2023 presidential election, because according to them, he had already done two terms and was therefore ineligible to contest for a third term. They had cited the Fourth Alteration (No 16) Act, which was signed into law by President Muhammadu Buhari on the 11th of June, 2018. The section they relied on was section 137(3) of the said Fourth Alteration to the 1999 Constitution which provides that “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”.

Mike Ozekhome

The learned gentleman said the antagonists were dead wrong in their legal postulations. The truth of the matter, according to him, was that the antagonists of Jonathan running in 2023, in their strange line of argument, had probably not thought about 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 relied on. More revealing was the fact that the antagonists were probably not aware of an extant and subsisting Court of Appeal decision, where Jonathan was challenged before the 2015 presidential election on the same ground of being ineligible to contest the said 2015 election because he had been allegedly 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. He wondered how Jonathan could be caught in its web retrospectively.

Ozekhome cited the case of Syracuse Njoku versus Goodluck Jonathan (2015). Mr. Njoku had contended that Jonathan had already sworn to the oath of office and allegiance twice and therefore, should be disqualified from contesting the 2015 election, as any victory he secured would amount to being sworn in three times. 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 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 Umaru Yar’Adua who died in office as President. The appeal had been brought before the court by one Syracuse Njoku, who was challenging the ruling of the High Court of the Federal Capital Territory, Abuja, which on March 1, 2013, dismissed the suit he filed to stop President Jonathan from contesting the 2015 election.

In a lead judgment 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 was empowered as acting President on 9 February 2010 – following a motion for operation of the “doctrine of necessity” by the Senate in the wake of the protracted stay of President Umaru Yar’Adua in Saudi Arabia on medical grounds.

When President Yar’Adua eventually died on 5 May 2010, Jonathan was sworn in as President to serve out the unexpired tenure of Yar’Adua. Jonathan was later elected President in 2011 for the first time, on his own merit. The Appeal Court held that disqualification is through election, not by oath taking. It further upheld the decision of the lower court which had dismissed Mr. Njoku’s suit for lack of locus standi. It noted that “it is fundamental that where a party lacks locus, the court cannot assume jurisdiction….We agree with the lower court that the appellant has no locus to sue”.

Ozekhome said that apart from Jonathan being “completely cleansed” of the virus of ineligibility to contest the 2023 presidential election by the Court of Appeal decision in Njoku’s case, Jonathan was also aided by the golden canon of interpretation to the effect that an enactment did not operate retrospectively or retroactively to take away from citizens’ legal rights. He insisted that a cursory examination of the various provisions of the constitution and all the appellate court decisions cited above made it crystal clear that the purported disqualification of Dr Goodluck Jonathan was grossly misconceived by the antagonists, as the Constitution must be progressively and not retrogressively construed.

“It is clear”, he said, “that those deliberately misinterpreting the clear position of the law might be baying for Jonathan’s blood, possibly as a potential candidate who might subvert the chances of their preferred candidates. I do not view issues from such narrow ad homine prism and blurred binoculars. It will be grossly unfair, unconstitutional, unconscionable and inequitable to deny Jonathan the right to contest the 2023 presidential election when our extant laws and appellate court decisions permit him to.”

The question of whether Jonathan really needs to subject his glittering and internationally acclaimed reputation and credentials to the muddy waters of a fresh competition with persons, some of whom were his personal appointees as president, is another matter altogether. Only him, and not the present state of the laws in Nigeria, can answer that question and decide his own fate. But, as regards his eligibility to contest, Dr Goodluck Ebele Azikiwe Jonathan is pre-eminently, constitutionally, morally and legally qualified to contest the 2023 presidential election.”

But not all Nigerians agreed with Ozekhome. Some Nigerians like human rights lawyer Femi Falana argued that his candidature would be in breach of the constitutional provisions. Mr. Falana based his position on the same Section 137 (3) of the Constitution, which provides that: “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.” Falana said: “Some people have said that the amendment is not retrospective and therefore cannot apply to Dr Jonathan. Assuming without conceding that the amendment is not retrospective it is submitted that under the current Constitution a President or Governor cannot spend more than two terms of eight years. “In other words, the Constitution will not allow anyone to be in office for more than a cumulative period of 8 years. In Marwa v. Nyako (2012), the Supreme Court stated that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria prescribed a single term of 4 years and if a second term, another period of 4 years and not a day longer.

Femi Falana

Falana pointed out the case of Governor Ladoja v INEC (2008), where the Supreme Court rejected the prayer of Governor Ladoja for 11 months’ extension to cover the period he was kept out of office through illegal impeachment. The Supreme Court rejected the prayer on the ground that a Governor is entitled to spend a maximum period of eight years or less and not more than eight years. It is not in dispute that Dr. Jonathan became the President of Nigeria in 2010 following the sudden death of President Umaru Yar’Adua. He later contested and won the 2011 presidential election. Having spent five years in office as President, 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 9 years as President of Nigeria in utter breach of Section 137 of the Constitution which provides for a maximum two terms of eight years.

An organization, Law and Order Group, faulted Mr. Falana’s argument as erroneous and misconceived, based on the ground that the amendment to the constitution that he cited cannot possibly take a retroactive effect. The group, in a statement by its coordinator, Aliyu Mohammed, pointed out that President Muhammadu Buhari signed the Fourth Alteration to the Constitution, which introduced Section 137(3), on June 7, 2018. The said Section 137 (3) contained a commencement date which is the date it was signed into law. Thus, the provisions of Section 137(3) of the 1999 Constitution (4th Alteration) became operative on 7 June 2018, and not any time before that date. The law is settled beyond controversy or dispute that a law does not take effect retroactively. Again, it is the law that, where a piece of legislation sets out a specific commencement date, as in the case of Section 137 (3), all rights, duties, obligations and interests created or intended to be created or imposed by that law will not be applicable to rights, events or duties which accrued or occurred before then. The case of Modu vs. FRN (2015) is very apt.

The group said that Jonathan left office since 2015. The oaths of office which he took were taken prior to the enactment of Section 137(3). In a case decided by the Court of Appeal in 2015, the court rightly held that the oath of office sworn to by Jonathan on 6 May 2010 cannot be taken into account in the interpretation of Section 137(1) of the Constitution. It follows, therefore, that the only oath of office sworn by Jonathan was the one he took on 29 May 2011. Again, it is not in dispute that Jonathan contested the presidential election in 2015 on the basis of the right which accrued to him. It follows, therefore, that Jonathan has the right to contest the forthcoming presidential election on the platform of any of the registered political parties in Nigeria.

Ex-President Goodluck Jonathan commented on the ongoing primaries by political parties and said they had the trapping of a scam. Dr. Jonathan condemned what he called high-level monetary inducement of delegates by aspirants canvassing for votes at the shadow polls by the parties ahead of the elections next year. The media have been awash with reports of defeated aspirants demanding refund of the cash they had given out to win delegates’ votes. The one-time President condemned the development in Abuja at a book launch titled: “Political Party Governance” written by former Minister of State for Power, Mohammed Wakil. Jonathan said it was despicable to induce delegates to get their votes only for aspirants to request a refund after failing to secure tickets.

He said: “The entire primaries going on across the country is a mess. This is not a standard practice. The process has failed. We cannot use the process to elect presidents, governors, senators and House of Representatives members and others. The process has already failed, and that is not good for the country. But we will manage and move on. We pray that good people should come forward to be counted. I hope that what happened this year, 2022 will not happen again in this country. Jonathan urged the National Assembly to make laws to criminalize the inducement of delegates and the electorate. He also called for a review of the nomination and selection process of candidates for elections by political parties. He said: “The National Assembly can’t make laws and lock all political parties together. Parties have different ways of nominating candidates and the process is enshrined in their constitutions. Creating a situation where all parties must have the same way of selecting candidates is nonsense. Parties are not parastatals of government. The National Assembly can’t make laws to strangulate political parties. Section 84 should be expunged from the Electoral Act.” But the former President did not make himself available for clarification on his alleged controversial ambition to run again on the platform of the ruling All Progressives Congress (APC).

The question of whether Jonathan really needs to subject his glittering and internationally acclaimed reputation and credentials to the muddy waters of a fresh competition with persons, some of whom were his personal appointees as President, is another matter altogether. Only him, and not the present state of the laws in Nigeria, can answer that question and decide his own fate.

Chief Sir Emeka Asinugo, KSC is a London-based veteran journalist, author of ‘The Presidential Years from Dr. Jonathan to Gen. Buhari’ and publisher of Imo State Business Link Magazine (https://imostateblm.com)